PLC Trenching Co., LLC v. Newton et al
Filing
135
DECISION & ORDER denying # 124 Defendants' motion to bond the monetary sanction for the use of cup cutter segments pending appeal and to stay the laying box injunction pending appeal (Dkt. No. 95 ). Signed by Judge Glenn T. Suddaby on 5/18/12. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
PLC TRENCHING CO., LLC,
Plaintiff,
6:11-CV-0515
(GTS/DEP)
v.
GARY NEWTON, JR.; CABLE SYS.
INSTALLATION LLC; and CABLE SYS.
INSTALLATIONS CORP.,
Defendants.
__________________________________________
APPEARANCES:
OF COUNSEL:
SCHNADER HARRISON SEGAL & LEWIS LLP
Counsel for Plaintiff
140 Broadway, Suite 3100
New York, NY 10005
CYNTHIA A. MURRAY, ESQ.
THEODORE L. HECHT, ESQ.
BOND, SCHOENECK & KING PLLC
Counsel for Defendant Gary Newton, Jr.
350 Linden Oaks, Suite 310
Rochester, NY 14625
BRIAN LAUDADIO, ESQ.
GREGORY J. MCDONALD, ESQ.
FRENCH, ALCOTT PLLC
Counsel for Defendant Gary Newton, Jr.
300 South State Street
Syracuse, NY 13202
DANIEL J. FRENCH, ESQ.
HISCOCK & BARCLAY
Counsel for Defendant Gary Newton, Jr.
One Park Place
300 South State Street
Syracuse, NY 13202
GABRIEL M. NUGENT, ESQ.
LeCLAIR RYAN
Counsel for Corporate Defendants
290 Linden Oaks, Suite 310
Rochester, NY 14625
ANDREW P. ZAPPIA, ESQ.
WENDELL W. HARRIS, ESQ.
MICHAEL J. CROSNICKER, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this misappropriation-of-trade-secrets action filed by PLC
Trenching Co., LLC (“Plaintiff”) against Gary Newton, Jr., Cable System Installation LLC, and
Cable System Installations Corp. (“Defendants”), is Defendants’ motion to (1) bond the Court’s
previously issued monetary sanction against Defendants for the use of cup cutter segments
pending their interlocutory appeal, and (2) stay the Court’s previously issued laying box
injunction against Defendants pending their interlocutory appeal. (Dkt. No. 124.) For the
reasons set forth below, Defendants’ motion is denied.
I.
RELEVANT BACKGROUND
Because the parties have, in their motion papers, demonstrated an accurate understanding
of the case’s procedural history, the legal standard governing Defendants’ motion, and the
arguments made by the parties regarding that motion, the Court will not repeat that information
in its entirety in this Decision and Order, which is intended primarily for the review of the
parties. Rather, the Court will recite that information only where necessary in this Decision and
Order.
II.
GOVERNING LEGAL AUTHORITY
Rule 62(d) of the Federal Rules of Civil Procedure grants a party an automatic stay to a
judgment by supercedeas bond except, in pertinent part, to “an interlocutory or final judgment in
an action for an injunction.” Fed. R. Civ. P. 62(d),(a).1 In other cases, Fed. R. Civ. P. 62(c)
provides that, in its discretion, a court “may suspend . . . an injunction on terms for bond” while
an appeal of that injunction is pending. Fed. R. Civ. P. 62(c).
1
A “judgment” is “a decree or any order from which an appeal lies.” Fed. R. Civ.
54(a).
2
Generally, to determine if a party is entitled to a discretionary stay of an injunction
pursuant to Fed. R. Civ. P. 62(c), a court is to consider the following four factors: (1) the
strength of the applicant’s showing that he will succeed on appeal on the merits; (2) the danger
that the applicant will be irreparably injured if the court denies the stay; (3) whether the stay will
substantially harm other interested parties; and (4) the public interest in granting the stay.
LaRouche v. Kezer, 20 F.3d 68, 72 (2d Cir. 1994); Frommert v. Conkright, 639 F. Supp.2d 305,
309 (W.D.N.Y. 2009).
III.
ANALYSIS
After carefully considering the parties’ motion papers, the Court denies Defendants’
motion for the reasons stated by Plaintiff in its opposition memorandum of law. (Dkt. No. 130,
at 4-13 [attaching pages “1” through “10” of Plf.’s Opp’n Memo. of Law].) To those reasons the
Court would add only nine brief points.
A.
Additional Points Regarding Monetary Sanctions
Five of the Court’s nine points regard Defendants’ request for a stay of its monetary
sanctions.
First, Defendants are incorrect that they have an absolute right, under Fed. R. Civ. P.
62(d), to stay by bond the monetary sanctions imposed on them by the Court for violating the
Court’s Temporary Restraining Order. Although it is true that, generally, “a party taking an
appeal from the District Court is entitled to a stay of a money judgment as a matter of right if he
posts a bond in accordance with Fed. R. Civ. P. 62(d)” (Am. Manufs. Mutual Ins. Co. v. Am.
Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1, 3 [1966]), a party taking an appeal from a
district court’s civil contempt order issuing sanctions arising from a violation of an injunction
does not have an automatic right to a stay of the monetary sanctions by bond because the civil
3
contempt order in that scenario is an “interlocutory . . . judgment in an action for an injunction.”
Fed. R. Civ. P. 62(a)(1).
None of the three cases cited by Defendants required a stay from an Order imposing
monetary sanctions for violating a Temporary Restraining Order. (Dkt. No. 133, at 10 [attaching
page “5” of Defs.’ Reply. Memo. of Law].) Indeed, more analogous cases undermine
Defendants’ position. See Union of Prof’l Airmen v. Alaska Aeronatical Indus., Inc., 625 F.2d
881, 882-83 (9th Cir. 1980) (dismissing appeal from district court order that, inter alia, denied the
defendants’ motion for stay by bond during appeal from order of civil contempt and monetary
fine for violating preliminary injunction); Am. St. Gobain Corp. v. Armstrong Glass Co., 300 F.
Supp. 419, 420-21 (D. Tenn. 1969) (denying defendant’s motion for stay by bond during appeal
from court’s “order of adjudging [the defendant] in contempt”); cf. Law v. NCAA, 134 F.3d 1025,
1030-31 (10th Cir. 1998) (finding that defendants had no right to stay by bond under Fed. R. Civ.
P. 62[d] because they had no right to appeal an interim attorneys’ fee award which must “piggyback” on injunction appeal).
The Court is persuaded by these latter cases. The Second Circuit has generally
recognized that a civil contempt judgment is interlocutory in nature and has repeatedly refused to
hear interlocutory appeals from those judgments.2 If an appeal from that judgment is generally
2
See, e.g., Pro-Choice Network of W. New York v. Walker, 994 F.2d 989, 993-94
(2d Cir. 1993) (holding that, if the sanctions imposed by the district court are for civil contempt
in violation of a temporary restraining order, a party may not appeal them except as part of a
final judgment); U.S. v. Johnson, 801 F.2d 597, 599 (2d Cir. 1986) (“The general rule that orders
of civil contempt against parties in pending litigation are not immediately appealable prevents
interlocutory appeals that fragment the disposition of what for practical purposes is a single
controversy.”) [internal quotation marks omitted]. For reasons set forth more completely in Part
III.B. of this Decision and Order, the Court rejects Defendants’ argument that the Court’s
contempt order is “independently appealable because it provides for new mandatory injunctive
relief.” (Dkt. No. 133, at 7.)
4
not permitted, it would make little sense to confer on a party an absolute right to stay by bond of
the entire action pending that appeal. More importantly, allowing a party to stay a civil contempt
judgment arising from a violation of an injunction would undermine and impede the ability of
the Court to enforce the injunction. Cf. Wright & Miller, 16 Fed. Prac. & Proc. Juris. § 3921.2
(2d ed.) (“The power to act pending appeal from preliminary injunction rulings is illustrated by
district court rulings . . . on matters of . . . contempt.”).
Second, because Defendants do not enjoy an absolute right to a stay of the monetary
sanction under the circumstances, it is appropriate for the Court to consider whether they should
be afforded a discretionary stay under the circumstances. As part of that analysis, the Court
finds that sufficient evidence was presented upon which it could render a finding that Plaintiff
was actually harmed by Defendants’ violation of the Court’s Temporary Restraining Order.
Over the course of this action, Plaintiff adduced evidence that, through Defendants’ wrongful
use of its patents, trade secrets and proprietary information, it had been placed at a comparative
disadvantage by its “primary competitor” in the marketplace–a company that used trenching
systems similar to those used by Plaintiff, that was staffed with former employees of a company
with whom Plaintiff had worked, and that had solicited and hired various of Plaintiff’s
employees.3 Plaintiff also adduced evidence that the information in question enabled Plaintiff
“to compete for work.”4 Defendants themselves have acknowledged their “compet[itive]”
3
(Dkt. No. 8, at ¶¶ 20, 22-24, 36, 38 [Decl. of Critelli]; see also Dkt. No. 49, at ¶
13 [Suppl. Decl. of Lopata, calling Defendant CSI Plaintiff’s “direct competitor”]; Dkt. No. 80,
at 19, 21-22 [attaching pages “69,” “71” and “72” of Redacted Tr. of Prelim. Injunct. Hrg.,
acknowledging that the parties are “[]competit[ors]”]; Dkt. No. 10, at ¶¶ 19-20 [Decl. of Tyoe,
asserting that Def. Newton viewed Plaintiff’s offer letters to his co-workers, before leaving his
employment with Plaintiff].)
4
See Unredacted Tr. of Prelim. Injunct. Hrg. at 42.
5
relationship with Plaintiff, and the “substantial risk” that either competitor’s obtaining the
other’s confidential information, would cause “clearly defined and serious injury or harm to the
parties’ . . . competitive positions and proprietary interests.”5 As for the Court’s determination of
the amount of the compensatory sanction, that was based on a reliance on the record evidence,
and a reasonable assessment of the credibility of the testimony adduced by the parties. (See, e.g.,
Dkt. No. 95, Attach. 1, at ¶ 33 [Decl. of Lopata]; Dkt. No. 116, at ¶ 5 [Decl. of Singh].)
Third, in the alternative, sufficient evidence was presented to the Court upon which the
Court could render a finding that a sanction that was partly coercive was necessary under the
circumstances. In assessing the amount of a coercive sanction necessary to curb Defendants’
violative behavior, the Court clearly considered the evidence presented by Plaintiff regarding the
magnitude, repetitiveness and flagrance of Defendants’ abuses. (See, e.g., Dkt. No. 120, at 1213, 22 [attaching pages “12,” “13,” and “22” of Tr. of Show Cause Hrg.].) Moreover, before,
during and after the Show Cause Hearing, Defendants failed adduce evidence establishing that
they were financially unable to pay a monetary sanction, even when they were presented with the
specific amount of the sanction requested by Plaintiff (which was nearly twice the amount of the
sanction imposed by the Court). (See generally Dkt. Nos. 107-109 [Defs.’ Pre-Hearing
Affidavits]; Dkt. No. 120 [Tr. of Show Cause Hrg.]; Dkt. Nos. 116-117 [Defs.’ Post-Hearing
Affidavits].) Nor have they done so on their current motion. (See generally Dkt. No. 124
[Defs.’ Motion]; Dkt. Nos. 133, Attach. 1-3 [Defs.’ Reply Affidavits and Exhibit].)
5
(See, e.g., Dkt. No. 107, Attach. 10, at 3 [attaching page “2” of letter from
Wendell Harris to Cynthia Murray, dated Dec. 19, 2011]; Dkt. No. 107, Attach. 21, at 5
[attaching page “1” of Defs.’ Proposed Protective Order]; Dkt. No. 120, at 28 [attaching page
“28” of Tr. of Show Cause Hrg.].)
6
The Court notes that Defendants’ declaration estimating their margin profit from
trenching at the project in Webberville, Texas, on a prospective basis, has little if anything to do
with their actual financial ability (e.g., based on their corporate assets) to pay the monetary
sanction requested by Plaintiff. (Dkt. No. 116, at ¶ 5 [Decl. of Singh].) In any event, that
portion of the declaration was unsupported by any accompanying documentary evidence, and
was contradicted by evidence adduced by Plaintiff. (Dkt. No. 95, Attach. 1, at ¶ 33 [Decl. of
Lopata].)
The Court notes also that Defendants’ reliance on their general counsel’s Second
Declaration (containing assertions regarding an unquantified financial harm that would befall
Defendants if “the Court were to enter a preliminary injunction restraining use of CSI’s . . .
laying boxes”) is misplaced. (Dkt. No. 133, at 14 [attaching page “9” of Defs.’ Reply. Memo. of
Law]; Dkt. No. 62, at ¶¶ 10-12.) Any such financial harm flowing from the laying box
injunction has absolutely nothing to do with Defendants’ actual financial ability (e.g., based on
their corporate assets) to pay the monetary sanction regarding the cup cutter segments.6
Fourth, with regard to Defendants’ argument that coercive sanctions may never be paid to
an opposing party, sanctions that are both coercive and compensatory may indeed be paid to an
opposing party. See N.A. Sales Co., Inc. v. Champion Indus. Corp., 736 F.2d 854, 857 (2d Cir.
1984) (finding to be proper a coercive sanction payable to movant, where sanction trebled
movant’s damages); cf. New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1353-54
(2d Cir. 1989) (“[T]he district court abused its discretion when it allocated this coercive sanction
6
In any event, the Court notes that its Preliminary Injunction does not, in fact,
restrain use of “CSI’s . . . laying boxes,” but only the use of those of CSI’s laying boxes that
either (1) represent or embody Plaintiff’s patents or (2) represent, embody or infringe on
Plaintiff’s trade secrets and/or proprietary information. Defendants’ general counsel’s Second
Declaration does not address that fact. (See generally Dkt. No. 62.)
7
to plaintiff N.O.W. . . . [when] N.O.W. had made no showing of compensable injury or actual
loss due to defendants’ failure to obey the court order. . . . A sanction may, of course, be both
coercive and compensatory. Yet, some proof of loss must be present to justify its compensatory
aspects.”). Here, at the very least, the sanction in question is both coercive and compensatory,
for the reason stated above. Moreover, the sanction in question is predominantly compensatory,
as indicated by the fact that the Court’s stated rationale for the sanction predominantly concerns
compensation rather than coercion. (Dkt. No. 119, at 2-12.) Cf. Paramedics Electromedicina
Comercial, Ltda v. GE, 369 F.3d 645, 657 (2d Cir. 2004) (concluding that the coercive portion of
the sanction did not predominate over the compensatory portion of the sanction, because the
district court’s stated rationale for the former portion of the sanction was as dominant as its
stated rationale for the latter portion of the sanction).
The Court notes that Defendants themselves have cited authority indicating that coercive
sanctions may be paid to an opposing party where evidence exists that doing so would have an
additional coercive effect on the offending party. See Terry, 886 F.2d at 1354 (“Inasmuch as no
proof of loss was offered on behalf of N.O.W., no evidence of actual injury due to Operation
Rescue’s activities was shown and there was no evidence that awarding the contempt sanction to
N.O.W. would have additional coercive effect on defendant’s behavior, the district court’s order
directing defendants jointly and severally to pay a $50,000 contempt sanction to N.O.W. must be
modified by directing that sanction to be payable into court.”). Here, such evidence exists: for
example, the evidence that Defendants view Plaintiff as their primary competitor, against whom
they must obtain an advantage (e.g., by acquiring its technology and employees) in order to
succeed in the market.
8
Fifth, the Court agrees with Plaintiff that, under the circumstances, “[t]he coercive effect
of the sanction will be completely vitiated by permitting defendants to post a bond.” (Dkt. No.
130, at 9 [attaching page “6” of Plf.’s Opp’n Memo. of Law].) Under the circumstances,
prejudice to Plaintiff (due to Defendants’ continued possession and use of Plaintiff’s trade
secrets and confidential information during the pending of Defendants’ appeal) would be
unavoidable, were Defendants able to walk away from the Court’s finding of contempt with only
a slap on the wrist: they would surely continue their insolent behavior. Cf. Koninklijk Philips
Elecs. N.V. V. KXD Tech., Inc., 539 F.3d 1039, 1045 (9th Cir. 2008) (denying interlocutory
appellate review of the sanctions imposed by the district court against the defendants where
“[t]he civil sanctions that were imposed are part of an ongoing litigation in which the defendants
have refused to comply with the district court’s orders”). The fact that Defendants claim they
are currently complying with the Preliminary Injunction only reinforces the Court’s conclusion
that the sanction of having to pay the money in its entirety to Plaintiff is working.
B.
Additional Points Regarding Laying Box Injunction
The remaining four of the Court’s nine points regard Defendants’ request for a stay of its
laying box injunction.
First, because Defendants concede that this portion of the April Order is “an interlocutory
or final judgment in an action for an injunction,” they acknowledge that are not entitled to an
automatic stay of the laying box injunction under Fed. R. Civ. P. 62(d), but instead must rely on
the Court’s exercise of discretion under Fed. R. Civ. P. 62(c). (See, e.g., Dkt. No. 124, Attach. 1,
at 13-16 [attaching pages “9” through “12” of Defs.’ Memo. of Law].)
9
Second, as part of that discretionary analysis, the Court notes that Defendants are
incorrect that the Court’s Preliminary Injunction did not sufficiently specify the trade secret and
proprietary information referenced in that injunction.7 For example, the Court’s Decision and
Order of December 12, 2011, specifically (1) identified Plaintiff’s three patents by their U.S.
Patent Numbers, (2) described Plaintiff’s proprietary and confidential information as including
information wrongfully obtained by Defendant Newton, and possessed by Defendants, regarding
Plaintiff’s “screening laying boxes,” “cup cutter segments,” and “dozer-track modification for
the Rivard wheel trenching machine,” and (3) described Plaintiff’s trade secrets as including
information wrongfully obtained by Defendant Newton, and possessed by Defendants, regarding
Plaintiff’s “screening laying boxes” and “cup cutter segments.” (Dkt. No. 72, at 4-5, 7, 9, 24.)
As a result, the Preliminary Injunction in this action specified (1) what the trade secrets
regarded (i.e., “screening laying boxes” or “cup cutter segments”), (2) how the trade secrets
were obtained (i.e., through Defendant Newton’s misappropriation during his departure from
Plaintiff’s employment), and (3) the fact that the trade secrets must already have been given to
Defendants and in their possession. For these reasons, the preliminary injunction in this action is
clearly distinguishable from the preliminary injunctions in the two cases cited by Defendants,
which did not specify such facts.8
7
The Court notes that any challenge by Defendants to the specificity of the terms
used in the Continued Temporary Restraining Order of May 20, 2011, would be clearly
disingenuous and, indeed, precluded, given that, on May 20, 2011, they themselves stipulated to
that Continued Temporary Restraining Order. (See Text Minute Entry dated May 20, 2011.)
8
See Corning, Inc. v. PicVue Elecs., Ltd., 365 F.3d 156, 157-59 (2d Cir. 2004)
(vacating preliminary injunction that forbade defendants from “engag[ing] in the
misappropriation of [plaintiff’s] trade secrets,” because the preliminary injunction “does not
identify the trade secrets . . . that it bars [defendants] from . . . misappropriating”); IDG USA,
10
In addition, and more importantly, the terms “screening laying boxes” and “cup cutter
segments,” used by the Court in the Preliminary Injunction, track the language and exhibits used
by the parties during the confidential portion of the Preliminary Injunction Hearing. See, e.g.,
Unredacted Tr. of Prelim. Injunct. Hrg. at 19-21, 24-25, 27-29, 32-50, 56-59, 109, 114-117; Plf.'s
Hrg. Exs. 9, 34-39. The Second Circuit recognizes that, “[w]hile an order granting a preliminary
injunction may not incorporate extrinsic documents by reference, it can track language from . . .
documents in order to add specificity to the injunction.” IDG USA, LLC v. Schupp, 416 F.
App’x 86, 88-89 (2d Cir. 2011). This rule makes eminent sense, given the sensitive nature of the
information in question. See Callmann on Unfair Comp., Tr. & Mono. § 23:55 (4th Ed.) (“An
injunction against disclosure of trade secrets need not specify the precise details of the secret.”).
The Court notes that, contrary to Defendants’ argument, their violation of the Court’s
Preliminary Injunction clearly resulted not from their misunderstanding of what constitutes a
“trade secret” but their (1) cavalier attitude toward these proceedings and (2) their willful
attempt to make the Preliminary Injunction mean what they want it to mean, rather than what it
plainly states. Their cavalier attitude is exemplified by the fact that, at the Preliminary
Injunction Hearing that occurred on December 7, 2011, Defendants’ general counsel testified
that he did not recall ever having spoken to Defendants’ Chief Executive Officer about
Plaintiff’s motion for a preliminary injunction, and did not know if the Chief Executive Officer
even know about the motion. See Unredacted Tr. of Prelim. Injunct. Hrg. at 130-31. Their sheer
LLC v. Schupp, 416 Fed. App’x 86, 88 (2d Cir. 2011) (vacating preliminary injunction that
forbade defendant from “disclosing [plaintiff's] trade secrets,” because “[a]n injunction that
simply prohibits the disclosure of trade secrets or confidential information, with no additional
description of what secrets or confidential information are to be protected, is insufficiently
specific”).
11
willfulness is exemplified by the fact that their argument is essentially a reincarnation of their
previously asserted argument that they should be advised of what particular features in
Defendants’ laying boxes embody Plaintiff’s trade secrets–so that Defendants can isolate and
remove them, rather than forfeit the offending laying boxes to Plaintiff in their entirety, as
required by the Preliminary Injunction. As the Court explained in its Decision and Order of
April 6, 2012, “while an injunction requiring Defendants to forfeit the laying boxes in their
entirety may appear strict, it is entirely necessary and appropriate given (1) Plaintiff’s need to
retain the secrecy and confidentiality of certain information regarding its laying boxes, and (2)
Defendants’ incorrigible conduct thus far.” (Dkt. No. 119, at 7.)9
Third, Defendants are incorrect that the Court’s Decision and Order of April 6, 2012,
either (1) expands on the Court’s Preliminary Injunction or (2) is based in part on infringement
of patents. (Dkt. No. 119.) The Decision and Order merely directed Defendants to do what they
were already required to do by the Preliminary Injunction;10 the Court used certain different
9
Defendants’ argument that the Preliminary Injunction issues a “broad restraint[]
on [their] use of laying boxes” mischaracterizes the nature of the injunction, which is targeted at
preventing Defendants’ repeated possession and use of laying boxes that either (1) represent or
embody Plaintiff’s patents or (2) represent, embody or infringe on Plaintiff’s trade secrets and/or
proprietary information. If there is no such possession or use, then Defendants are not ordered to
cease using the laying boxes and return them. (Dkt. No. 97, at 4.)
10
(Compare Dkt. No. 72, at 24 [“Defendants shall return all copies of digital
computer files, physical and other representational or intellectual embodiments of Plaintiff’s
patents, trade secrets and proprietary information (including, but not limited to, information
regarding cup cutter segments, laying boxes and dozer track modifications for the Rivard
trencher) obtained from Plaintiff and in Defendants’ possession; . . . Defendants . . . are
enjoined from directly or indirectly manufacturing, using, exploiting, selling, transferring,
copying, secreting, or otherwise employing or retaining possession of or exerting any right over,
Plaintiff’s trade secrets and proprietary information (including, but not limited to, information
regarding cup cutter segments, laying boxes and dozer track modifications for the Rivard
trencher) in connection with any of their business or personal activities; . . . Defendants . . . are
12
language merely to address Defendants’ unfounded insistence that they do not understand what
is required by the Preliminary Injunction.11 Moreover, the Decision and Order was in no way
based on patent infringement (which requires the manufacture, use or sale of patented inventions
for purposes of 35 U.S.C. § 271[a], a claim previously dismissed without prejudice from
Plaintiff’s Amended Complaint); rather, the Decision and Order was based, in part, on
Defendants’ return and non-disclosure of the information embodied in Plaintiff’s patents–relief
that was related to Plaintiff’s Computer Fraud and Abuse Act claim and breach-of-fiduciary-duty
claim. (Dkt. No. 119, at 7.) This fact that was rather clearly explained in the Court’s
Preliminary Injunction. (Dkt. No. 72, at 22.)12
Fourth and finally, while the Court at all time acknowledges and respects a zealous
advocate’s utilization of the procedures for seeking reconsideration, stays, and interlocutory
appeals, the Court cannot help but note that, if Defendants spent half the time and effort
complying with the Court’s Orders as they do trying to evade their obligations under those
Orders, Defendants would be far closer to a fair and reasonable resolution of their dispute with
Plaintiff.
enjoined from directly or indirectly transferring, copying, secreting, or retaining possession of
representational or intellectual embodiments of Plaintiff’s patents (including, but not limited to,
information regarding cup cutter segments, laying boxes and dozer track modifications for the
Rivard trencher). . . .”] [emphasis added] with Dkt. No. 119, at 7-8, 11 [“Defendants are ordered
to do the following: (1) not adjust, alter, disassemble, remove any portion of, conceal any portion
of and/or destroy any portion of any of their laying boxes that represent, embody and/or infringe
on Plaintiff’s patents, trade secrets, and/or proprietary information; [and] (2) immediately deliver
(at Defendants’ expense) any such laying boxes in their entirety to Plaintiff . . . .”].)
11
The Court has rejected this argument twice. (See Dkt. No. 97, at 4-5; Dkt. No.
119, at 7.)
12
Cf. Von Holdt v. A-1 Tool Corp., 714 F. Supp.2d 863, 865-66, 873-75 (N.D. Ill.
2010) (treating computer-assisted designs of a molded bucket as both patented technology for
purpose of a patent claim, and “confidential files” for purpose of a CFAA claim).
13
ACCORDINGLY, it is
ORDERED that Defendants’ motion to bond the monetary sanction for the use of cup
cutter segments pending appeal and to stay the laying box injunction pending appeal (Dkt. No.
95) is DENIED. Defendants are respectfully reminded of their duty to expeditiously and
faithfully comply with the Court’s prior Orders.
Dated: May 18, 2012
Syracuse, New York
14
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