Simonian v. Maybelline LLC

Filing 49

NOTICE by Maybelline LLC of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Drake, Jeffrey) [Transferred from Illinois Northern on 3/21/2011.]

Simonian v. Maybelline LLC

Doc. 49

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION THOMAS A. SIMONIAN, Plaintiff, v. MAYBELLINE LLC, Defendant. ) ) ) ) ) ) ) ) )

Civil Action No. 1:10-cv-01615 Hon. Virginia M. Kendall

NOTICE OF SUPPLEMENTAL AUTHORITY Defendant Maybelline LLC ("Maybelline"), by and through its undersigned counsel, respectfully submits this Notice of Supplemental Authority. 1. Attached as Exhibit A is a recent decision from the Northern District of Georgia in Accord Patents LLC v. Superfeet Worldwide, Inc. No. 1:10-cv-862-TCB (N.D. Ga. Oct. 19, 2010). Judge Batten granted defendants' motion to dismiss for failure to state a claim and held that plaintiff's complaint contained only conclusory statements that were insufficient to support an intent to deceive the public under Twombly. Judge Batten's opinion contains statements directly relevant to arguments made by Maybelline in support of its motion to dismiss, particularly Maybelline's argument that Simonian's complaint, which contains similar conclusory statements, should be dismissed under Fed. R. Civ. P. 9(b). (Dkt. 20 at 6-9.) 2. Also relevant to Maybelline's argument that Simonian's complaint should be

dismissed under Fed. R. Civ. P. 9(b) is the currently pending mandamus petition in Simonian v. BP Lubricants, Inc. Exhibit B hereto is the petition for mandamus filed by BP Lubricants, Inc. ("BP Lubricants"). In that case, Judge Gettleman of this district had denied the motion to dismiss filed by BP Lubricants, which was premised on the same grounds as Maybelline's motion to dismiss, namely that the complaint failed to meet the heightened pleading

Dockets.Justia.com

requirements of Fed. R. Civ. P. 9(b). BP filed a petition for mandamus to the Federal Circuit on the issue of Rule 9(b)'s applicability to false marking claims and the requirements under that rule for such claims. If the Federal Circuit were to grant BP Lubricants' mandamus petition,

confirming the role of Rule 9(b) in pleading the intent to deceive element of a false marking claim, that decision will be controlling authority. All briefing on the petition is scheduled to be completed in a matter of weeks, and the Federal Circuit's ruling on that petition is expected promptly. Several factors underscore the significance of the petition. First, it would appear the petition has already passed the threshold test for merit because the Federal Circuit ordered the claimant to respond to the petition. See PACER docket Sheet (Exhibit C). Second, both the United States and the Intellectual Property Owners Association ("IPO") have requested and been granted the right to file amicus briefs in the matter. See id. The recently filed amicus brief of the IPO in support of BP Lubricant's petition is attached hereto as Exhibit D. 3. Attached as Exhibit E is a recent decision from Judge St. Eve of this District in Simonian v. Hunter Fan Co., No. 10-1212 (N.D. Ill. Oct. 7 2010). Judge St. Eve granted defendant Hunter Fan Co.'s ("Hunter Fan") motion to transfer to the Western District of Tennessee, relying on the fact that the transferee district was the location where the activities upon which liability hinges took place. Ex. E at 5. Judge St. Eve's opinion is directly relevant to arguments made by Maybelline in its motion to transfer (dkt. 26). Like Hunter Fan, the relevant actions relating to the alleged liability occurred in the transferee district.

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Respectfully submitted, /s/Jeffrey M. Drake Jeffrey M. Drake Wood Phillips 500 West Madison Street Suite 3800 Chicago, IL 60661-2562 Ph: [phone] [e-mail] Of Counsel: Francis DiGiovanni Geoffrey A. Zelley Connolly Bove Lodge & Hutz LLP 1007 N. Orange Street Wilmington, Delaware 19899 Ph: [phone] [e-mail] [e-mail] Attorneys for Defendant Maybelline LLC

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CERTIFICATE OF SERVICE I, Jeffrey M. Drake, hereby certify that on the October 21, 2010 the attached document was electronically filed with the Clerk of the Court using CM/ECF which will send notification of such filing to the registered attorney(s) of record that the document is available for viewing and downloading from CM/ECF: Joseph M. Vanek, Esquire David P. Germaine, Esquire Jeffrey R. Moran, Esquire VANEK, VICKERS & MASINI, P.C. 111 S. Wacker Drive Suite 4050 Chicago, IL 60606 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail]) ([e-mail]) Eugene M. Cummings, Esquire David M. Mundt, Esquire David Lesht, Esquire Martin Goering, Esquire Konrad V. Sherinian, Esquire Panasarn Aim Jirut, Esquire Jessica Rissman, Esquire EUGENE M. CUMMINGS, P.C. One North Wacker Drive Suite 4130 Chicago, IL 60606 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) Attorneys for Plaintiff Thomas A. Simonian By: Bruce S. Sperling, Esquire Robert D. Cheifetz, Esquire SPERLING & SLATER, P.C. 55 West Monroe Street Suite 3200 Chicago, IL 60603 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail])

/s/Jeffrey M. Drake Jeffrey M. Drake