CODA Development s.r.o. et al v. Goodyear Tire & Rubber Company et al

Filing 42

Memorandum Opinion and Order: For the reasons set forth herein and in defendants' opposition (Doc. No. 36 ), plaintiffs' motion to amend, or for relief from, the Court's judgment dismissing the case (Doc. No. 32 ) is denied, e xcept for the single correction in note 5, supra, regarding substitution of inventors under 35 U.S.C. Section 256. Further, plaintiffs' motion for leave to file a first amended complaint (Doc. No. 33 ) is denied. Judge Sara Lioi on 9/26/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CODA DEVELOPMENT s.r.o., CODA
INNOVATIONS s.r.o., et al.,
PLAINTIFFS,
vs.
THE GOODYEAR TIRE & RUBBER
COMPANY, et al.,
DEFENDANTS.

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CASE NO. 5:15-cv-1572

JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER

Before the Court is plaintiffs’ motion under Fed. R. Civ. P. 59(e) and 60(b) for an order
amending, or granting relief from, the Memorandum Opinion and related Judgment Entry dated
September 29, 2016. (Doc. No. 32 [“Mot.-Relief”].) Defendants filed an opposition brief (Doc.
No. 36 [“Opp’n-Relief”]) and plaintiffs filed a reply (Doc. No. 40 [“Reply-Relief”]). Plaintiffs also
filed a combined motion for leave to file a first amended complaint (“FAC”) and to file it under
seal. (Doc. No. 33 [“Mot.-Amend”].)1 Defendants have opposed this motion (Doc. No. 27
[“Opp’n-Amend”]) and plaintiffs have replied (Doc. No. 28 [“Reply-Amend”]). For the reasons
discussed herein, plaintiffs’ motion for relief from the judgment is denied; plaintiffs’ motion for
leave to amend is also denied.
I. BACKGROUND
On August 9, 2015, plaintiffs Coda Development s.r.o., Coda Innovations s.r.o.
(collectively, “Coda”), and Frantisek Hrabal (“Hrabal”) (collectively, “plaintiffs”) filed their

1

A redacted copy of the proposed FAC is attached to the motion for leave to amend. (See Doc. No. 33-2.) Plaintiffs
also filed a letter to the Court seeking leave to file an unredacted FAC under seal as information for the Court. (See
Doc. No. 35.) The Court treated the letter as a motion and granted it. The unredacted, sealed proposed FAC is Doc.
No. 39.

original complaint (Doc. No. 1 [“Compl.”]) setting forth thirteen (13) causes of action for
correction of inventorship under 35 U.S.C. § 256 and one cause of action under the Lanham Act,
15 U.S.C. § 1125(a)(1)(A). In addition, they asserted seven state law claims: two for fraudulent
non-disclosure, one for misappropriation of trade secrets, two for tortious interference with
business relations/prospective economic advantage, one for negligent misrepresentation, and one
for unjust enrichment. All of plaintiffs’ claims were based on underlying factual allegations that
defendants misappropriated plaintiffs’ confidential and proprietary Self-Inflating Tire (“SIT”)
technology, allegedly invented by plaintiff Hrabal, Coda’s CEO.
On October 9, 2015, defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
seeking dismissal of all of the claims. (Doc. No. 16.) Defendants argued, inter alia, that plaintiffs’
claims were “vague and conclusory,” with no identification of “the allegedly confidential thing
that was said about ‘the SIT’ that forms the basis for the conclusory allegation that neither Mr.
Benedict nor Mr. Losey conceived of any claimed element of the later-filed Goodyear '586 patent.”
(Id. at 108.)2 Defendants argued that plaintiffs had failed to allege any facts adequate to show that
the SIT Technology was a trade secret. They challenged the complaint for its failure to “not only
provide fair notice of the nature of the claim, but also grounds on which the claim rests.” (Id. at
112, citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)
(internal quotation marks omitted).) They argued that the complaint did not contain “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (Id. at 11213, citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal
quotation marks omitted).)

All page number references are to the page identification number generated by the Court’s electronic docketing
system.
2

2

Although plaintiffs could have filed an amended complaint as of right under Fed. R. Civ.
P. 15(a)(1)(B) by October 30, 2015, they did not do so.
Instead, on November 9, 2015, plaintiffs filed their opposition to the motion to dismiss.
(Doc. No. 23.) They sought no leave to file an amended complaint. Rather, they insisted, in the
face of defendants’ argument that the complaint failed to be sufficiently specific, that “Goodyear
knows what it took, and knows full well how Coda’s secrets were incorporated into its patents[.]”
(Id. at 621.) Plaintiffs further asserted: “Coda’s Complaint does all that is required, if not more,
to remind Goodyear of precisely what it stole from Coda.” (Id. at 623, footnote omitted.) They
claimed: “Coda has identified what was stolen, when, by whom, and into which patents this stolen
technology was incorporated, providing Goodyear with a more than sufficient reminder of its
theft.” (Id. at 629.)
On November 25, 2015, defendants filed their reply (Doc. No. 25), arguing in part that
plaintiffs’ vague and speculative allegations about their alleged “SIT technology” gave defendants
no notice of what they allegedly misappropriated.
On December 4, 2015, plaintiffs moved to strike portions of defendants’ reply or, in the
alternative, for leave to file a sur-reply. (Doc. No. 26.) This motion actually contained whatever
argument plaintiffs would have included in any sur-reply had leave been granted. Again, plaintiffs
did not seek leave to amend the complaint, notably maintaining that their original complaint
“alleges in detail the particular trade secrets Goodyear stole, how it incorporated these secrets into
its own patents and rival product, and how Goodyear now stands to profit from its theft.” (Id. at
1037.)
On December 21, 2015, defendants opposed the motion to strike and again challenged the
sufficiency of the complaint. (Doc. No. 27.) They noted that “nothing prevented Plaintiffs from
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explaining, in their Opposition [to the motion to dismiss] or (more importantly) in the Complaint,
what they contend the allegedly secret ‘SIT technology’ was and how it differed from their prior
public disclosures.” (Id. at 1044.)
On December 30, 2015, plaintiffs filed a reply with respect to their motion to strike. (Doc.
No. 28.) They again asserted that they had “alleged what Goodyear stole, when Goodyear stole it,
and how Goodyear uses Coda’s stolen technology.” (Id. at 1049.) Plaintiffs repeated their request
for leave to file a sur-reply so they could “support [the] claims with facts and evidence that show
Goodyear’s claimed inventions incorporate not just published information, but Coda’s trade
secrets[.]” (Id.) The Court denied leave to file a sur-reply; and yet plaintiffs still did not seek leave
to amend the complaint.
On September 29, 2016, the Court granted defendants’ Rule 12(b)(6) motion to dismiss the
complaint in its entirety for failure to state a claim. With respect to the federal claims seeking to
correct inventorship under 35 U.S.C. § 256, the Court noted that “[g]iven the elements plaintiffs
would need to prove to prevail on their § 256 claims, the complaint must, as the very least, set
forth sufficient facts, not legal conclusions, in support of each element.” (Doc. No. 30 at 1063.)
The Court held that plaintiffs’ vague, but undescribed, references to their “trade secret
compilation” were insufficient since “[t]here are no facts to support the assertions in claims one
and two that Hrabal is the true, sole inventor, nor are there any facts that he contributed in any
way, much less a novel way, to the patents in claims three through thirteen.” (Id. at 1067.) As to
the state law claim of misappropriation of trade secrets, the Court found the claim time-barred. (Id.

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at 1077, relying upon discussion on fraud claims at 1073-76.)3 Noting that plaintiffs had never
sought leave to amend, but had steadfastly asserted throughout their briefing that their original
complaint was more than adequate, the Court declined any sua sponte offer of leave to file an
amended complaint. (Id. at 1084 n.14.) The Court entered a judgment of dismissal of the case.
(Doc. No. 31.)
Plaintiffs have now moved for an order amending, or granting relief from, the Court’s
Memorandum Opinion and Judgment Entry. Further, plaintiffs now belatedly seek leave to file an
amended five-count complaint, blending the original counts one and two into a single count for
correction of inventorship, restating the original count thirteen for correction of inventorship,
combining the original counts five and eight, plus adding two new patents, into a third count for
correction of inventorship, restating the original count sixteen for misappropriation of trade
secrets, and adding a new count for declaratory judgment.
II. DISCUSSION
Plaintiffs have filed two motions, one under Fed. R. Civ. P. 59(e) and 60(b), and the other
under Fed. R. Civ. P. 15(a)(2). Although separate, the motions can be discussed in tandem because
they have the same objectives: to set aside the Memorandum Opinion and Judgment Entry dated
September 29, 2016, to reopen the case, to obtain belated (and previously unrequested) leave for
plaintiffs to file a first amended complaint, and to thereafter proceed on the merits of that amended
complaint.

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The September 29th opinion addressed all of the other claims raised in the original complaint; however, these need
not be addressed herein because plaintiffs, in seeking to file their FAC, have abandoned the majority of the original
claims. (See Mot.-Relief at 1095.)

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Plaintiffs claim that “justice requires” the requested relief for three reasons. First, they
argue that, with respect to counts one and two of the original complaint dealing with inventorship
of the '586 Patent, Goodyear, in its reply regarding its motion to dismiss, “led the Court astray by
mischaracterizing what was publicly known when it applied for the '586 Patent.” (Mot.-Relief at
1092.) Second, “[p]laintiffs are willing and able to address the perceived deficiencies in their
claims for correction of inventorship[.]” (Id. at 1093.) Third, “the Court abused its discretion in
denying [p]laintiffs leave to amend their claim for trade secret misappropriation . . . on the ground
it was time-barred by the statute of limitations.” (Id. at 1094.)
A.

Legal Standards
Fed. R. Civ. P. 59(e) permits the filing of a motion to alter or amend a judgment. “A court

may grant a motion to alter or amend judgment only if there was ‘(1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest
injustice.’” Am. Civil Liberties Union of Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 450 (6th Cir.
2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.2005) (further citation
omitted)). But the Sixth Circuit “[has] repeatedly held that a Rule 59(e) motion ‘does not permit
parties to . . . re-argue a case’ and ‘cannot be used to present new arguments that could have been
raised prior to judgment.’” Schellenberg v. Twp. of Bingham, 436 F. App’x 587, 598 (6th Cir.
2011) (quoting Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)).4 See also Ajinomoto
Co., Inc. v. Archer-Daniels-Midland Co., 228 F.3d 1338, 1350 (Fed. Cir. 2000) (noting that “Rule

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Sixth Circuit case law is relevant even though this case involves intellectual property matters that are appealed to the
Federal Circuit, because the Federal Circuit reviews “matter[s] not unique to patent law . . . [under] the law of the
appropriate regional circuit.” Haworth, Inc. v. Steelcase, Inc., 12 F.3d 1090, 1092 (Fed. Cir. 1993) (applying Sixth
Circuit law).

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59(e) is not a vehicle for reopening judgments to present information that was long possessed by
the movant and that was directly related to the litigation.”).
“Under Rule 15, a court may grant permission to amend a complaint ‘when justice so
requires’ and in the normal course will ‘freely’ do so.” Leisure Caviar v. U.S. Fish & Wildlife
Serv., 616 F.3d 612, 615 (6th Cir. 2010) (quoting Rule 15(a); further citations omitted). “[W]hen
a Rule 15 motion comes after a judgment against the plaintiff, . . . [c]ourts in that setting must
‘consider[ ] the competing interest of protecting the finality of judgments and the expeditious
termination of litigation.’” Id. at 615-16 (quoting Morse v. McWhorter, 290 F.3d 795, 800 (6th
Cir. 2002)). “If a permissive amendment policy applied after adverse judgments, plaintiffs could
use the court as a sounding board to discover holes in their arguments, then ‘reopen the case by
amending their complaint to take account of the court’s decision.’” Id. at 616 (quoting James v.
Watt, 716 F.2d 71, 78 (1st Cir. 1983)). “That would sidestep the narrow grounds for obtaining
post-judgment relief under Rules 59 and 60, make the finality of judgments an interim concept and
risk turning Rules 59 and 60 into nullities.” Id. (citation omitted).
As a result, a party seeking to amend after an adverse judgment “must shoulder a heavier
burden.” Id. “Instead of meeting only the modest requirements of Rule 15, the claimant must meet
the requirements for reopening a case established by Rule 59 or 60.” Id. Further, in such
circumstances, a court “ought to pay particular attention to ‘the movant’s explanation for failing
to seek leave to amend prior to the entry of judgment.’” Id. (quoting Morse, 290 F.3d at 800). “A
claimant who seeks to amend a complaint after losing the case must provide a compelling
explanation to the district court for granting the motion.” Id. at 617.

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B.

Analysis
Plaintiffs have raised three reasons why “justice requires” that their post-judgment motions

be granted.5 None of the reasons is strong enough to withstand application of the principles set
forth in the above-cited case law.
Reason No. 1
First, plaintiffs claim that, when Goodyear was prosecuting its patent application before
the U.S. Patent & Trademark Office, it claimed that “a groove within a tire sidewall and an air tube
positioned within that sidewall” was not publicly known, that is, that it was not prior art; but, here,
Goodyear takes the opposite position. (Mot.-Relief at 1097.) To make this assertion, plaintiffs rely
upon the newly-presented declaration of Dr. Richard W. Klopp. (See Doc. No. 32-1 [“Klopp
Decl.”].) They go on at some length explaining that, not only should defendants be estopped from
taking this inconsistent position, but also that the position is “just plain wrong[ ]” because “none
of the prior art discloses a tube in a groove in a tire sidewall as that term is used in the '586 Patent.
And if it did, the '586 Patent would be invalid, a conclusion Goodyear is surely not advocating for
in this case.” (Mot.-Relief at 1097.) This may be an interesting argument, but it was never raised
before judgment. Further, the Klopp Declaration, had it been presented on the motion to dismiss,
would have been rejected by the Court as outside the pleadings (or would have required conversion
to a summary judgment motion). It is clear that plaintiffs’ current intent is to insert this declaration

Although plaintiffs’ brief states that it has three reasons for seeking relief, plaintiffs actually raise a separate issue
with reference to footnote 6 of the Memorandum Opinion. (Mot.-Relief at 1106-07.) There, the Court stated that
“[a]lthough defendants did not raise this argument, there is case law suggesting that [substitution of one inventor for
another] is not a form of relief under § 256.” (Doc. No. 30 at 1062, n.6, citing McMurray v. Harwood, 870 F. Supp.
917, 919-20 (E.D. Wis. 1994).) Plaintiffs now point out the case of Stark v. Adv. Magnetics, Inc., 119 F.3d 1551, 1555
(Fed. Cir. 1997), where the court clarified that § 256 does permit substitution of inventors, including in cases where
fraud (as opposed to mere inadvertence) is alleged, so long as the unnamed inventor has not exhibited any deceptive
intent. To that extent, the Court accepts this correction to its Memorandum Opinion. That footnote, however, was
mere dictum and had no substantive effect on the overall ruling.
5

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into the record as a way of suggesting that this Court somehow erred by not reaching the same
conclusions as Dr. Klopp. But, of course, those conclusions were not available to the Court when
it was deciding the motion to dismiss, and any reviewing court will recognize plaintiffs’ strategy
for what it is worth.
Plaintiffs did not need the expertise of Dr. Klopp to make an argument, during the motion
to dismiss phase of the case, that defendants were taking inconsistent positions. For whatever
reason, they made no such argument, and raising it post-judgment is to no avail.
Reason No. 2
The second reason argued by plaintiffs is, by far, the most disconcerting. They claim that
the Court should have permitted them to amend their complaint with respect Counts One and Two
(the sole inventorship claims), and Counts Five, Eight, and Thirteen (the joint inventorship claims).
As for Counts One and Two addressing sole inventorship of the '586 Patent, plaintiffs,
again relying upon the Klopp Declaration, for the very first time in this litigation finally set forth
the exact “secret invention” they claim Goodyear misappropriated, a statement they previously
steadfastly refused to supply. They assert, at the tail-end of their first argument, that Dr. Klopp
“opines that the inventive concept of the '586 Patent is placing a tube in a groove in a sidewall.”
(Mot.-Relief at 1103, citing Klopp Decl. ¶ 18, emphasis added.) From there, they launch into their
argument that it was error for this Court to deny them leave to file a sur-reply brief with respect to
the motion to dismiss, where, if given the opportunity, they would have provided “additional
facts[.]” (Id. at 1104.) Plaintiffs now claim that, in their request to file a sur-reply, they “specifically
identified the factual issue that ultimately led the Court astray and into believing Plaintiffs’ [sic]
had not communicated a trade secret to Goodyear about placing the pump tube in a groove in the

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bending region of the tire sidewall (that is, away from the rim).” (Id., emphasis added.) They assert
that this Court “did not consider [their] alternative request to file a sur-reply.” (Id.)
Plaintiff’s current argument with respect to whether or not it should have been allowed to
file a sur-reply is completely divorced from the argument they actually made in their motion to
strike or, alternatively, to file a sur-reply. (See Doc. No. 26.) There, the entire argument was aimed
at striking a 2009 article written by Hrabal, entitled “Self-Inflating Tire Technology,” that was
attached to defendants’ reply to the motion to dismiss and used by defendants (and, ultimately, by
the Court) to establish that there was nothing “secret” or “confidential” about whatever it was that
Hrabal now claims to have revealed to Goodyear because that topic was covered in the 2009
published article.
But, setting aside the completely unwarranted “spin” now placed by plaintiffs on their
previous arguments in an attempt to suggest error in this Court’s ruling, the more fundamental
problem with plaintiffs’ current attempt to reopen this case by filing a post-judgment amended
complaint has to do with their declaration that they “are willing and able to address the perceived
deficiencies in their claims for correction of inventorship[.]” (Id. at 1093.) In other words, plaintiffs
now, for the first time, want to amend the complaint to allege what they could have and should
have alleged from the beginning – that the invention Hrabal allegedly disclosed (and Goodyear
allegedly misappropriated) had to do with “placing the pump tube in a groove in the bending region
of the tire sidewall” (Mot.-Relief at 1104), which is now claimed by Dr. Klopp to be “the inventive
concept of the '586 Patent.” (Klopp Decl. ¶¶ 18, citing [for the first time in this litigation] to Claim
1 of the Patent; see also ¶ 19.)
Dr. Klopp takes issue with the Court’s statement in the Memorandum Opinion that
“Plaintiffs argue, in opposition, that the '586 Patent claims ‘a tire inflated through the compression
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of an air tube embedded in the tire sidewall’ . . . and that ‘Hrabal created precisely this invention.’”
(Klopp Decl. ¶ 17, quoting Memorandum Opinion at p. 1064 (underlining in original), in turn
quoting plaintiffs’ MTD opposition brief at pp. 627-28 and Compl. ¶ 20.) Dr. Klopp emphasizes
that the invention is the tube in a groove in the bending region of the sidewall, not just a tube in
the sidewall. This, he claims, is the invention, not anticipated by prior art, that Hrabal disclosed to
Goodyear. (Klopp Decl. ¶¶ 21-23.)
This distinction was never included in any brief and, more importantly, was never even
hinted at in the original complaint, although it is now being assigned the utmost importance as the
invention that was disclosed and stolen. Interestingly, although plaintiffs did not see fit to allude
to this “invention” in the slightest way in their original complaint, the proposed amended complaint
is packed with allegations about “grooves” and “bending regions.”
Plaintiffs also claim that they should have been permitted to amend the joint inventorship
claims in Counts Five, Eight and Thirteen of the complaint to allege the specific contributions they
made to the alleged jointly-invented '784, '661 and '254 Patents. In their proposed amended
complaint, they “set forth in detail the specific trade secrets they communicated to Goodyear and
identified how these trade secrets formed the basis of [these] patents.” (Mot.-Relief at 1108.) In
addition, they seek to include two more patents for which they claim joint inventorship, the '955
Patent and the '132 Patent.
Plaintiffs criticize the Court for failing to sua sponte grant leave to amend merely because
plaintiffs had maintained all along that their complaint was sufficient. Plaintiffs again further
criticize the Court for “overlooking that Plaintiffs specifically requested to file a sur-reply and
provide additional facts distinguishing their trade secrets from publicly available information.”
(Mot.-Relief at 1108.) But sur-replies are not a vehicle for making allegations; complaints are.
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Further, despite all of the lengthy briefing in this case, plaintiffs had never requested leave to
amend, even as alternative relief. Their current argument that they “attempted to inform the court,
through their request for a sur-reply, that additional facts were necessary to evaluate Goodyear’s
new, and wrong, arguments[,]” (Mot.-Relief at 1104-05) is unavailing in this post-judgment
context. See D.E.&J. Ltd. P’ship v. Conaway, 133 F. App’x 994, 1001-02 (6th Cir. 2005) (finding
no abuse of discretion in denying opportunity to amend where no formal motion for leave to amend
had been filed, no proposed amended complaint had been submitted, and the only indication of a
possible desire to amend was a request “almost as an aside in their brief opposing [d]efendants’
motions to dismiss”).
Plaintiffs have supplied no reason why, pre-judgment, they were unable to sufficiently set
forth their causes of action to withstand a motion to dismiss, but have now, post-judgment, found
the ability to do so with amazing clarity. This is the very strategy (some might call it
“gamesmanship”) that the Court criticized in Leisure Caviar, supra. In Begala v. PNC Bank, Ohio,
Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir. 2000), the court affirmed the following ruling by the
district court, finding no abuse of discretion “in denying the post-judgment action of plaintiffs”:
... An open request for the Court to permit amendment to cure deficiencies, once
the Court identifies those deficiencies, will not defeat a meritorious motion to
dismiss pursuant to Rule 12(b)(6). Had plaintiffs filed a motion to amend the
complaint prior to this Court’s consideration of the motions to dismiss and
accompanied that motion with a memorandum identifying the proposed
amendments, the Court would have considered the motions to dismiss in light of
the proposed amendments to the complaint. The Court would not have dismissed
this action had it been convinced that the deficiencies in the complaint would have
been cured by the proposed amendments. Absent such a motion, however,
Defendant was entitled to a review of the complaint as filed pursuant to Rule
12(b)(6). Plaintiffs were not entitled to an advisory opinion from the Court
informing them of the deficiencies of the complaint and then an opportunity to cure
those deficiencies.

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Id. (quoting and affirming the district court’s opinion on a Rule 60(b) post-judgment motion for
clarification) (emphasis added). Similarly, in Essex Electro Engineers, Inc. v. United States, 960
F.2d 1576 (Fed. Cir. 1992),6 the court rejected appellant’s argument that, even though it had neither
filed an amended complaint as a matter of right nor sought leave of court to amend, it should have
been permitted to amend anyway. The Federal Circuit held that “such a rule would make a mockery
of pleadings and confront adverse parties with the potential for endlessly shifting grounds.” Id. at
1583. The court “would not condone this practice.” Id.
In the instant case, there is similarly no reason to grant either of plaintiffs’ motions and,
effectively, permit plaintiffs to have a “do over” because they failed to properly set forth their
claims in the complaint or timely request the opportunity to amend their complaint prior to
judgment.
Reason 3
Finally, plaintiffs argue that the Court was wrong to conclude, drawing on “erroneous
factual inferences in support of a sua sponte theory that was neither advanced nor briefed by the
parties[,]” that the trade secret misappropriation claim in count sixteen of the original complaint
was time-barred. (Mot.-Relief at 1113.) Plaintiffs argue that the Court deviated from the standard
on a motion to dismiss, drawing factual inferences without the benefit of discovery or evidence.
In support of this argument, plaintiffs supply a previously-unsupplied declaration of Mr. Hrabal
wherein he attests to all of his interactions with Goodyear, what he told Goodyear, and when. (See
Doc. No. 32-20.) Of course, as with the Klopp Declaration, this is matter outside the pleadings
and, had it been submitted at the motion to dismiss stage, it would not have been considered unless

6

Overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995).

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the motion was converted to one for summary judgment. As with the Klopp Declaration, plaintiffs’
current intent is barely veiled – they simply want to insert into this record, in anticipation of appeal,
information that was previously not before the Court, apparently in hopes of suggesting error by
this Court.
More importantly, the question of whether the trade secret misappropriation claim was
time-barred was not raised sua sponte by the Court. Rather, defendants argued in their motion to
dismiss that the claim was time-barred for the same reasons that the fraud claims were time-barred.
Plaintiffs’ instant motion does not challenge the Court’s ruling dismissing the fraud claims as timebarred. Rather, the motion falsely states the issue was never discussed in the briefing with respect
to the trade secret misappropriation claim. (Opp’n at 1094.) But the fact is that it was discussed by
defendants and was ignored by plaintiffs in their opposition to the motion to dismiss, a fact noted
by the Court in its opinion. The Court itself ruled that, taking plaintiffs’ own factual allegations as
true, there had been sufficient timely information available to plaintiffs to have triggered an earlier
duty to investigate, which, had plaintiffs done so, would have led them to discover 7 Goodyear’s
patent application for the self-inflating tire that plaintiffs now assert contained their
misappropriated trade secrets. See Investors REIT One v. Jacobs, 546 N.E.2d 206, 209 (Ohio 1989)
(trade secret misappropriation cause of action accrues “when the plaintiff discovers or, in the
exercise of reasonable care, should have discovered the complained of injury.”) (citation omitted).
Plaintiffs’ third reason for seeking amendment of, or relief from, the Memorandum
Opinion and Judgment is no more than a simple basis for appeal. It utterly fails to meet any of the
requirements of Rule 59 or Rule 60.

In their brief in opposition to defendants’ motion to dismiss, plaintiffs uniformly argued for the application of a
“discovery rule” to determine when their various causes of action accrued.
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III. CONCLUSION
For the reasons set forth herein and in defendants’ opposition (Doc. No. 36), plaintiffs’
motion to amend, or for relief from, the Court’s judgment dismissing the case (Doc. No. 32) is
denied, except for the single correction in note 5, supra, regarding substitution of inventors under
35 U.S.C. § 256. Further, plaintiffs’ motion for leave to file a first amended complaint (Doc. No.
33) is denied.

IT IS SO ORDERED.
Dated: September 26, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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