Armstrong Pump, Inc. v. Hartman et al

Filing 166

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 153 Motion for Reconsideration re 153 MOTION for Reconsideration re 150 Order on Motion to Amend/Correct filed by Optimum Energy LLC Optimum Energy's motion for reconsideration (Docket No. 153) is granted in part insofar as reconsideration was conducted and, upon this reconsideration, Optimum Energy's motion (Docket No. 149) for leave to amend its Answer is denied.So Ordered. Signed by Hon. Hugh B. Scott on 12/2/2013. (Attachments: # 1 Exhibit Letter of Paul Perlman, Oct. 25, 2013, with Joint Proposed Amended Scheduling Order, # 2 Exhibit Table of Events) (DRH)

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Armstrong Pump v. Hartman, Optimum Energy 10CV446S Table of Events Date Event, Docket No. Note May 28, 2010 Complaint, No. 1 breach of contract, tortious interference with contract, for licensing of patented technology July 1, 2010 Optimum Energy Answer, No. 10 July 1, 2010 Hartman Answer, No. 11 Sept. 10, 2010 Order denying in part Hartman’s Motion (No. 15) and Optimum Energy’s Motion (No. 17) to dismiss Complaint, No. 34 Oct. 7, 2010 Order denying in part Hartman’s Motion (No. 15) and Optimum Energy’s Motion (No. 17) to dismiss; denying plaintiff’s motion for preliminary injunction (No. 18), No. 39 Nov. 16, 2010 [First] Scheduling Order, No. 43 Amend pleadings by March 18, 2011 Feb. 14, 2011 Motion to Amend Complaint, No. 48 adjusting allegations Mar. 2, 2011 Order granting motion, No. 54 Mar. 8, 2011 Amended Complaint, No. 55 Mar. 18, 2011 Amended Pleading deadline, No. 43 Mar. 22, 2011 Hartman Answer to Amended Complaint, No. 56 breach of contract, tortious interference of contract claims Date Event, Docket No. Note Mar. 22, 2011 Optimum Energy Answer to First Amended Complaint, No. 57 with counterclaims, including patent infringement counterclaim (¶¶ 114-24, 126-28). Optimum Energy seeks to amend this pleading to add counterclaim and defense based on false marking Apr. 2, 2011 Plaintiff’s Answer to Optimum Energy’s Counterclaims, No. 58 Counterclaim for violation of licensing agreement May 3, 2011 Hartman’s Answer to Plaintiff’s Cross-claims, No. 59 May 3, 2011 Optimum Energy’s Answer to Plaintiff’s Counterclaims, No. 60 July 8, 2011 Plaintiff’s motion to amend its Answer to Counterclaims, No. 61 Aug. 2, 2011 Order granting motion to amend Answer to Counterclaims, No. 65 Aug. 8, 2011 Plaintiff’s Amended Answer to Optimum Energy’s Counterclaims, No. 68 with declaratory judgment counterclaim for patent invalidity (¶¶ 147-56) Aug. 22, 2011 Optimum Energy’s motion to dismiss plaintiff’s amended counterclaim for declaratory judgment of patent invalidity, No. 70 arguing pleading deficiencies Aug. 22, 2011 Hartman joining in Optimum Energy’s motion, No. 71 -2- Date Event, Docket No. Note Aug. 25, 2011 Dispositive referral jurisdiction conferred to Magistrate Judge, No. 74; cf. No. 13, July 19, 2010, original referral Order Sept. 16, 2011 Optimum Energy’s Motion for partial summary judgment, No. 78 arguing that plaintiff was estopped from claiming that its marked products did not practice the patents at issue Sept. 16, 2011 Congress enacts amendment to 35 U.S.C. § 292(b) Statutory false marking claim established Sept. 19, 2011 Briefing Order for pending motions, No. 79 Holding Scheduling Order (No. 43) in abeyance pending resolution of motions Dec. 29, 2011 Report & Recommendation regarding Nos. 70, 71, 78, No. 84 2011 U.S. Dist. LEXIS 154372, finding plaintiff’s answer to counterclaims insufficiently plead, recommending granting motion to dismiss; recommended not considering motion for summary judgment Jan. 12, 2012 Appeals and objections to Report & Recommendation, Nos. 85, 86, 87 (Optimum Energy), 88 (plaintiff) Jan. 17, 2012 Status and scheduling conference adjourned pending resolution of objections, No. 89 -3- Date Event, Docket No. Note Mar. 26, 2012 Order accepting and modifying Report & Recommendation, No. 96 2012 U.S. Dist. LEXIS 41252, accepts dismissal of plaintiff’s answer to counterclaims regarding patent invalidity; finds summary judgment motion premature Mar. 27, 2012 Plaintiff’s motion to amend Answer to Optimum Energy’s Counterclaims, No. 97 amendments allege facts supporting patent invalidity assertions May 2, 2012 Minute entry from conference, No. 106 Schedule not reset until after decide plaintiff’s motion for leave to amend Answer, No. 97 May 15, 2012 Order granting plaintiff’s motion, No. 109 set scheduling conference for June 26, 2012 (later reset, No. 110); scheduled filing date for plaintiff’s Answer and responding pleadings May 18, 2012 Plaintiff’s Amended Answer to Optimum Energy’s Counterclaims, No. 111 amended declaratory judgment patent invalidity counterclaim, ¶¶ 147-56 June 5, 2012 Optimum Energy’s Answer to Plaintiff’s Second Amended Counterclaims, No. 112 answers patent invalidity counterclaim [last pleading from Optimum Energy] June 7, 2012 Hartman’s Answer to Plaintiff’s Second Amended Counterclaims, No. 113 [last amended pleading] -4- Date Event, Docket No. Note Aug. 6, 2012 Amended Scheduling Order, No. 122 Scheduled Markman hearing for Mar. 26, 2013, other pretrial deadlines. No extension of amended pleading deadline. Note, parties submitted Rule 26(f) meeting report, noting disagreements on patent discovery deadlines, No. 119 Feb. 22, 2013 Order reset Markman hearing for May 30, 2013, No. 124 Mar. 15, 2013 Federal Circuit decides Frolow v. Wilson Sporting Goods, 710 F.3d 1303 Rejects marking estoppel, in lieu of statutory false marking claim, 710 F.3d at 1309-10 May 30, 2013 Markman hearing held, Nos. 133 (minutes), 137 (transcript) Optimum Energy argues need to amend Answer to assert false marking claim, No. 137, Tr. at 65-66 May 30, 2013 Court suspends Scheduling Order deadlines pending resolution of Markman claims construction, No. 134 July 15, 2013 Report & Recommendation re Markman claims construction, No. 136 July 29, 2013 Objections to Report, Nos. 138 (Optimum Energy), 139 (plaintiff) Oct. 8, 2013 Order adopting in part Report & Recommendation of July 15, 2013 (No. 136), No. 144 -5- Date Event, Docket No. Note Oct. 8, 2013 Optimum Energy email to counsel, see No. 153, Ard Decl. Ex. A Stating its intention to move for leave to amend Answer regarding false marking claims, seeking advice whether parties consent Oct. 9, 2013 Order setting status conference for Oct. 29, 2013, No. 146 to set amended schedule; parties to meet and confer on a proposed schedule Oct. 25, 2013 Letter of Paul Perlman to chambers with proposed Amended Scheduling Order, without extended deadline for further amendment of pleadings Oct. 29, 2013 Status and scheduling conference, Nos. 147, 156 (corrected transcript) Discussion of discovery deadlines only Oct. 29, 2013 Second Amended Scheduling Order, No. 148 Discovery deadlines and beyond reset; no deadline for amending pleadings. Order amended further to reflect desired discovery deadlines, No. 151, Nov. 4, 2013 Oct. 30, 2013 Optimum Energy’s motion for leave to amend Answer, No. 149 To add false marking defense and counterclaim, proposed ¶¶ 133-45 Nov. 1, 2013 Order denying Optimum Energy’s motion, No. 150 Nov. 7, 2013 Optimum Energy’s pending motion for reconsideration of denial Order, No. 153 -6- Responses due Nov. 15, 2013, reply Nov. 18, 2013, argue Nov. 19, 2013, No. 154

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