CAPITAL MACHINE COMPANY, INC. et al v. MILLER VENEERS, INC. et al

Filing 225

ORDER denying Defendants' 215 Motion to Strike Exhibit 2 to Plaintiff's Markman Brief (S.O.). Signed by Judge Jane Magnus-Stinson on 5/2/2011. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CAPITAL MACHINE COMPANY, INC., and INDIANA FORGE, LLC,
Plaintiffs,
vs.
MILLER VENEERS, INC., et al.,
Defendants.

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1:09-cv-00702-JMS-DML

ORDER
Presently before the Court in this patent-infringement action is Defendants’ Motion to
Strike Exhibit 2 to Plaintiffs’ Markman Brief. [Dkt. 215.] Pursuant to Federal Rule of Civil
Procedure 12(f), they ask the Court to strike an expert report attached to Plaintiffs’ Markman
brief, contending that the information contained in the report is irrelevant under Federal Circuit
precedent because the report goes to possible infringement and not claim construction, the only
issue presently under consideration. In the alternative, they seek leave to depose the expert.
The Court DENIES Defendants’ motion [dkt. 215]. First, as a matter of procedure, Rule
12(f) only authorizes the Court to strike matter “from a pleading.” Fed. R. Civ. Pro. 12(f). A
brief is not a pleading. See Fed. R. Civ. Pro. 7(a) (listing the only recognized pleadings).
Second, and more substantively, Plaintiffs have indicated that they filed the report for a very limited purpose: for its “readily-available summary of the infringement allegations.” [Dkt. 218 at
2.] They expressly disclaim any greater use for it. [Id. (calling the substance of the report “irrelevant at this juncture”).] The Court will, therefore, only consider the report for that limited purpose, and only to the extent authorized by Federal Circuit precedent. No motion to strike is necessary; the Court can separate the wheat from the chaff on its own. Because no deposition is
needed either, given the limited use for the report, no leave is given.
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05/02/2011
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Cynthia A. Bedrick
MCNEELY STEPHENSON THOPY & HARROLD
[e-mail]
Jennifer M. Frasier
MCNEELY STEPHENSON THOPY & HARROLD
[e-mail]
J. Lee McNeely
MCNEELY STEPHENSON THOPY & HARROLD
[e-mail]
Paul B. Overhauser
OVERHAUSER & LINDMAN, LLC
[e-mail]
Brady J. Rife
MCNEELY STEPHENSON THOPY & HARROLD
[e-mail]
Michael A. Swift
MAGINOT MOORE & BECK LLP
[e-mail]

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