ABT Systems, LLC et al v. Emerson Climate Technologies, Inc. et al

Filing 246

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Emerson's motion to strike the late identification of Brad Townsend as a fact witness is GRANTED. (Doc. No. 243). Signed by District Judge Audrey G. Fleissig on 8/21/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ABT SYSTEMS, LLC, et al.,
Plaintiffs / Counterclaim Defendants,
vs.
EMERSON ELECTRIC CO.,
Defendant / Counterclaim Plaintiff.

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Case No. 4:11CV00374 AGF

MEMORANDUM AND ORDER
This patent infringement action is before the Court on the motion of
Defendant/Counterclaim Plaintiff Emerson Electric Co.(“Emerson”) to strike the late
identification of a witness by Plaintiffs/Counterclaim Defendants ABT Systems, LLC, and The
University of Central Florida Board of Trustees (jointly “ABT”). ABT filed this action on
February 28, 2011, claiming that thermostats manufactured and/or sold by Emerson infringe two
patents held by ABT. ABT seeks statutory treble damages for wilful infringement. On January
26, 2010, Emerson filed an answer and counterclaim for declaratory judgment of noninfringement, invalidity, and unenforceability, due in part to ABT’s alleged misrepresentations to
the Patent and Trademark Office.
On August 22, 2011, ABT identified Brad Townsend as a potential expert witness, but he
never submitted an expert report. On June 25, 2012, ABT served its Fourth Supplemental Initial
Disclosures, identifying Brad Townsend, as a witness who “may have knowledge regarding the
use and value of technology operating according to the patents-in-suit.” In email correspondence
with Emerson, ABT asserts that it intends to use Mr. Townsend as a fact witness. Emerson asks
the Court to strike Mt. Townsend as a fact witness because he has been named after extensive

discovery has been taken, months after the completion of fact depositions, months after expert
reports were completed and served, and after most of Plaintiffs’ expert witnesses have been
deposed.
As Emerson asserts, the record establishes that Mr. Townsend was known to ABT as a
potential witness early in this action. ABT has not responded to Emerson’s motion to strike in
the time allowed for a response, and thus, has offered no reason why Mr. Townsend could not
have been identified as a fact witness sooner, nor how ABT might be prejudiced by the granting
of the motion to strike.
Accordingly,
IT IS HEREBY ORDERED that Emerson’s motion to strike the late identification of
Brad Townsend as a fact witness is GRANTED. (Doc. No. 243).

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 21st day of August, 2012.

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