Red Carpet Studios v. Midwest Trading Group, Inc. et al
Filing
78
ORDER granting 62 Motion to Dismiss for Lack of Jurisdiction; granting 62 Motion to Dismiss for Failure to State a Claim. Signed by Judge Michael R. Barrett on 9/30/16. (ba)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Red Carpet Studios,
Plaintiff,
Case No. 1:12cv501
v.
Judge Michael R. Barrett
Midwest Trading Group, Inc., et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Plaintiff Red Carpet Studio’s Motion to
Dismiss the Amended Complaint. (Doc. 62). 1 Defendant Midwest Trading Group, Inc.
filed a Response (Doc. 63) and Plaintiff filed a Reply (Doc. 64). Defendant was granted
leave to file a Surreply.
(Doc. 73). Plaintiff filed a Notice of Supplemental Authority.
(Doc. 75).
I.
BACKGROUND
This matter began with a patent infringement case. Plaintiff Red Carpet Studios
(“Red Carpet”) alleges that Defendant Midwest Trading Group Inc. (“MTG”), along with
Defendants Walgreen Company (“Walgreens”) and CVS Pharmacy Inc. (“CVS”), have
sold or offered to sell infringing products to which Red Carpet has a patent, U.S. Design
Patent No. D487,034 (“the ‘034 Patent”). (Doc. 1).
In a separate, later-filed case, MTG filed a "Complaint for Correction of
Inventorship" claiming that MTG was the successor-in-interest to the intellectual
1
As explained herein, in the original case, Red Carpet is the plaintiff and MTG is the
defendant. While those roles are reversed in the case filed by MTG, the Court will refer to Red
Carpet as “Plaintiff” because the original case was consolidated with the case filed by MTG.
property rights of Neal Sater. See Midwest Trading Group, Inc. v. Red Carpet Studios
Division of Source Advantage, Case No. 1:15-cv-524. In that case, MTG claims that
Sater is an unnamed inventor of the ‘034 Patent. MTG explains that the ‘034 Patent
lists as the sole inventor and Lach assigned his rights to Red Carpet in December of
2002.
In Count One of its Amended Complaint filed in 1:15-cv-524, MTG seeks have
Sater included as an inventor of the ‘034 Patent. In Count Two, MTG seeks to have the
named inventor, Bob Lach, removed as a named inventor. In Count Three, MTG brings
a claim of inequitable conduct based on the failure of Red Carpet to acknowledge
Sater’s contribution to the ‘034 Patent to the Patent Office. In Count Four, MTG brings
a claim of unjust enrichment against Red Carpet. MTG claims it is entitled to all of the
profits from the sales of products incorporating the design of the ‘034 Patent which were
sold by Red Carpet. This Court consolidated MTG’s case with Red Carpet’s patent
infringement case. (Doc. 61).
Red Carpet seeks to dismiss MTG’s claims under Federal Rule of Civil
Procedure 12 based on defect in title, lack of coherent evidence, res judicata, laches
and champerty.
II.
ANALYSIS
A. Standard of Review
1. Failure to state a claim under Rule 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), this Court must “construe the complaint in the light
most favorable to the plaintiff, accept its allegations as true and draw all reasonable
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inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d
426, 430 (6th Cir. 2008) (quoting Directv, Inc. v Treesh, 487 F.3d 471, 476 (6th Cir.
2007)).
However, legal conclusions conveyed as factual allegations do not to be
accepted as true, rather the reviewing court is allowed to draw on its own judicial
experience and common sense in determining whether or not the pleader can obtain
any relief based on the purported facts. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-950
(2009).
2. Lack of subject matter jurisdiction under Rule 12(b)(1)
“Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) ‘come in two varieties: a facial attack or a factual attack.’” Carrier Corp. v.
Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012) (quoting Gentek Bldg. Prod., Inc. v.
Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). A facial attack challenges
the sufficiency of the pleading and goes to whether or not the plaintiff laid a sufficient
basis for subject matter jurisdiction. Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir.
2014). All of the allegations in a facial analysis must be taken as true, like that of a
motion under Rule 12(b)(6). Carrier, 673 F.3d at 440; see also Lovely v. United States,
570 F.3d 778, 781 (6th Cir. 2009), cert. denied, 558 U.S. 1111 (2010). A factual attack,
on the other hand, challenges the actual existence of subject matter jurisdiction.
Cartwright, 751 F.3d at 759. In a factual attack, the court may “weigh evidence to
confirm the existence of the factual predicates for subject-matter jurisdiction.” Carrier,
673 F.3d at 440; see also Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266,
269 (6th Cir. 1990) (explaining that “the court is empowered to resolve factual disputes
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when subject matter jurisdiction is challenged.”).
“Plaintiff bears the burden of
establishing that subject matter jurisdiction exists.” Cartwright, 751 F.3d at 760.
When faced with motions based on both Rules 12(b)(1) and (6), a court must
address subject matter first, because the Rule 12(b)(6) challenge becomes moot if this
court lacks subject matter jurisdiction. Moir, 895 F.2d at 269 (citing Bell v. Hood, 327
U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)) (“The Court will consider the 12(b)(1)
motion first, as the 12(b)(6) challenge becomes moot if subject matter jurisdiction is
lacking.”)). Accordingly, the Court will first turn to the issue of standing, which goes to
this Court’s subject matter jurisdiction. See Loren v. Blue Cross & Blue Shield of Mich.,
505 F.3d 598, 606 (6th Cir. 2007) (“a plaintiff must possess both constitutional and
statutory standing in order for a federal court to have jurisdiction.”).
B. Standing
MTG brings its claims to correct inventorship pursuant to 35 U.S.C. § 256, which
“provides a cause of action to interested parties to have the inventorship of a patent
changed to reflect the true inventors of the subject matter claimed in the patent.”
Larson v. Correct Craft, Inc., 569 F.3d 1319, 1324 (Fed. Cir. 2009) (quoting Fina Oil &
Chem. Co. v. Ewen, 123 F.3d 1466, 1471 (Fed. Cir. 1997)).
Red Carpet argues that MTG does not have standing to bring the claims based
on the rights purportedly acquired from Sater because Sater did not own those rights.
Red Carpet acknowledges that Sater designed a three-piece helix product, which he
copyrighted. That copyright was the subject of an earlier lawsuit in this Court between
Red Carpet and Sater. See Red Carpet v. Sater, Case No. 1:03-cv-00051 (“Case 51”).
In Case 51, Red Carpet sought declaratory judgment that Red Carpet's four-piece helix
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product—which is covered by the ‘034 Patent—did not infringe Sater’s three-piece helix
product. Red Carpet relies on previous rulings of this Court in Case 51 which indicate
that Sater transferred his intellectual property rights to another entity: Wind Wonders,
LLC. (See Red Carpet v. Sater, Case No. 1:03-cv-00051, Doc. 40).
MTG responds that it has standing because it alleged in the Amended Complaint
that “MTG is the successor-in-interest to SATER’s patent rights, having acquired all
such rights by assignment.” (Case. No. 1:15cv524, Doc. 6). A copy of the assignment
agreement between Sater and MTG has been made a part of the record. (Case. No.
1:15cv524, Doc. 7-2, PAGEID 73-74). The agreement is dated June 12, 2015, which is
after the litigation between Midwest and Red Carpet commenced. MTG explains that in
the context of a Rule 12 motion, these allegations and the assignment agreement are
sufficient to show that MTG is the owner of Sater’s patent rights. However, Red Carpet
is not questioning the assignment agreement itself, but is questioning whether Sater
had any rights to assign.
To begin, it is important to note that questions of patent ownership are distinct
from questions of inventorship. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456,
1465 (Fed. Cir. 1998) (citing Beech Aircraft Corp. v. EDO Corp., 990 F.2d 1237, 1248,
26 USPQ2d 1572, 1582 (Fed. Cir. 1993)). 2 If a plaintiff lacks an ownership interest in a
2
As the Federal Circuit has explained:
although the act of invention itself vests an inventor with a common law or
“natural” right to make, use and sell his or her invention absent conflicting patent
rights in others (and in certain circumstances, may similarly vest such rights in an
employer of the inventor), a patent on that invention is something more. A patent
in effect enlarges the natural right, adding to it the right to exclude others from
making, using or selling the patented invention. See Six Wheel Corp. v. Sterling
Motor Truck Co., 50 F.2d 568, 571 (9th Cir. 1931).
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patent, or will not receive any other financial or personal rewards from a declaration of
inventorship, that plaintiff does not have standing to sue under Section 256.
See
Larson v. Correct Craft, Inc., 569 F.3d 1319, 1326 (Fed. Cir. 2009); Chou v. Univ. of
Chicago, 254 F.3d 1347, 1358-59 (Fed. Cir. 2001); see also Shukh v. Seagate Tech.,
LLC, 803 F.3d 659, 663 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 2512 (2016) (standing
demonstrated where alleged reputational injury likely has an economic component).
Accordingly, “[w]hen the owner of a patent assigns away all rights to the patent, neither
he nor his later assignee has a ‘concrete financial interest in the patent’ that would
support standing in a correction of inventorship action.”
Trireme Med., LLC v.
AngioScore, Inc., 812 F.3d 1050, 1053 (Fed. Cir. 2016) (citing Chou, 254 F.3d at 1359
and Larson, 569 F.3d at 1326-27).
There was some indication in Case 51 that Sater transferred his intellectual
property rights to Wind Wonders, LLC. During a motion hearing in that case, this Court
engaged in the following discussion with counsel for Sater about the ownership of the
copyrights at issue:
Well, Mr. Joseph, if you want to move to add Wind Wonders as a party to
this lawsuit, you may do so, but you will have to do that in writing and you
will have to produce the appropriate supporting documentation. At this
point, I have nothing before me to indicate that Mr. Sater owns 85 percent
of Wind Wonders, or that he has the authority to represent Wind Wonders
and to join Wind Wonders as a party. You have conceded that 15 percent
of Wind Wonders – even if I accept just the verbal representations -- 15
percent is owned by the employees, that Wind Wonders is a legal entity
that can sue and be sued under California law, and that there is a verbal,
exclusive license granted to Wind Wonders which makes Wind Wonders
the entity that can sue to enforce the copyrights in question here. So, we
are lacking an essential party in terms of, at the very least, entitlement to a
preliminary injunction. So, on that basis alone, I will deny the motion for
preliminary injunction which the defendant has filed and we need not
adduce any testimony on that at this time.
Arachnid, Inc. v. Merit Indus., Inc., 939 F.2d 1574, 1578 (Fed. Cir. 1991).
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(Red Carpet v. Sater, Case No. 1:03-cv-00051, Doc. 42, PAGED ID #352-353).
The Court concludes that this ruling is insufficient to establish that Sater assigned
any patent rights he may have had to Wind Wonders so that MTG lacks standing to
bring its claims to correct inventorship under 35 U.S.C. § 256.
C. 35 U.S.C. § 256
The Court will now turn to Red Carpet’s argument that MTG has failed to state a
claim under 35 U.S.C. § 256.
“Patent issuance creates a presumption that the named inventors are the true
and only inventors.” Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed. Cir.
1998) (citing Hess v. Advanced Cardiovascular Sys., Inc., 106 F.3d 976, 980 (Fed.Cir.),
cert. denied, 520 U.S. 1277, 117 S.Ct. 2459, 138 L.Ed.2d 216 (1997)).
Section 256 provides a mechanism to correct two types of inventorship errors:
misjoinder and nonjoinder. Fina Tech., Inc., v. Ewen, 265 F.3d 1325, 1328 (Fed.Cir.
2001); Stark v. Advanced Magnetics, Inc. et al., 119 F.3d 1551, 1553 (Fed.Cir. 1997).
Misjoinder occurs when a person who is not an inventor is mistakenly listed as an
inventor. Stark, 119 F.3d at 1553. Nonjoinder occurs when a person who is an inventor
mistakenly has not been listed as such where “the error [does not] involve any
deceptive intention by the nonjoined inventor.” Id.
To establish co-inventorship under Section 256, a plaintiff must prove “some
quantum of collaboration” and that he made a “contribution to the conception of the
claimed invention that is not insignificant in quality, when that contribution is measured
against the dimension of the full invention.” Eli Lilly and Co. v. Aradigm Corp., 376 F.3d
1352, 1359 (Fed.Cir. 2004). As the Federal Circuit has explained: “the alleged joint
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inventor seeking to be listed on a patent must demonstrate that his labors were
conjoined with the efforts of the named inventors.” Id. Joint inventorship “can only arise
when collaboration or concerted effort occurs—that is, when the inventors have some
open line of communication during or in temporal proximity to their inventive efforts.” Id.
Similarly, “district courts have not allowed substitution under section 256 where
the parties have not collaborated on the subject matter of the patents at issue.” Rubin
v. Gen. Hosp. Corp., No. CIV.A. 09-10040-DJC, 2011 WL 1625024, at *12 (D. Mass.
Apr. 28, 2011), aff'd, 523 F. App'x 719 (Fed. Cir. 2013) (citing Maxwell v. Stanley
Works, No. 3:06–0201, 2006 WL 1967012, at *2, 4–5 (M.D.Tenn. July 11, 2006)
(substitution impermissible where plaintiff claimed he was the original inventor of a
wrench after a patent was issued to defendant for the same wrench and plaintiff and
named inventor neither communicated nor collaborated with one another); Rawlplug
Co., Inc. v. Hilti Aktiengesellschaft, 777 F.Supp. 240, 242–43 (S.D.N.Y.1991)
(substitution impermissible where plaintiff claimed to be the sole and original inventor of
a device later patented by another company with whom plaintiff had no contact but
plaintiff alleges received the information concerning the device from plaintiff's former
employee).
MTG alleges in the Amended Complaint, “[a]s a result of his design work, SATER
acquired certain intellectual property rights, including patent rights.” (Doc. 6, ¶ 5). MTG
alleges that “SATER has a significant role in the conception of claimed subject matter of
the ‘034 patent” and that his “conceptual role is sufficient to qualify him as an inventor
under 35 U.S.C. § 116.” (Doc. 6, ¶¶ 9, 10). “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Iqbal, 129
8
S.Ct. at 1949. MTG’s complaint does not speak to any communication or collaboration,
except one reference to “a significant prior business relationship” between Red Carpet
and Sater. (Doc. 6, ¶ 12). The Court finds that MTG’s allegations are insufficient to
state a claim.
Moreover, the Federal Circuit has held that “a delay of more than six years after
the omitted inventor knew or should have known of the issuance of the patent will
produce a rebuttable presumption of laches.” Serdarevic v. Advanced Med. Optics,
Inc., 532 F.3d 1352, 1358 (Fed. Cir. 2008) (quoting Advanced Cardiovascular Sys., Inc.
v. Scimed Life Sys., Inc., 988 F.2d 1157, 1163 (Fed.Cir. 1993)). There is no dispute
that Sater knew of the issuance of the ‘034 Patent during the course of the Case 51
proceedings. The issuance of the ‘034 Patent on November 20, 2003 was discussed at
length during the proceedings (See, e.g, Doc. 34, PAGEID #246-247), which concluded
in 2007. MTG specifically references this litigation in its Amended Complaint. (Doc. 6,
MTG filed its complaint for correction of inventorship in August of 2015. 3
¶ 14).
Therefore, even if MTG had properly stated a claim under Section 256, the Court finds
that any claim would be barred by the doctrine of laches.
Therefore, Red Carpet’s Motion to Dismiss Count One (seeking to have Sater
included as an inventor of the ‘034 Patent) and Count Two (seeking to have the named
inventor, Bob Lach, removed as a named inventor) is GRANTED.
D. Inequitable conduct
In Count Three, MTG brings a claim of inequitable conduct based on the failure
of Red Carpet to acknowledge Sater’s contribution to the ‘034 Patent to the Patent
3
MTG has failed to offer anything to rebut the presumption of Sater’s knowledge. MTG
argues that it is not required to do so at this stage of the proceedings because laches is an
affirmative defense.
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Office.
Inequitable conduct must be proven “by clear and convincing evidence that the
patent applicant (1) misrepresented or omitted information material to patentability, and
(2) did so with specific intent to mislead or deceive the PTO.” Ohio Willow Wood Co. v.
Alps S., LLC, 735 F.3d 1333, 1344 (Fed.Cir. 2013). Claims of inequitable conduct are
held to the heightened pleading standards of Fed. R. Civ. P. 9(b). Exergen Corp. v.
Wal-Mart Stores, Inc., 575 F.3d 1312, 1326 (Fed. Cir. 2009). “A pleading that simply
avers the substantive elements of inequitable conduct, without setting forth the
particularized factual bases for the allegation, does not satisfy Rule 9(b).” Id. at 132627.
Instead, “in pleading inequitable conduct in patent cases, Rule 9(b) requires
identification of the specific who, what, when, where, and how of the material
misrepresentation or omission committed before the PTO.” Id. at 1327. “Moreover,
although ‘knowledge’ and ‘intent’ may be averred generally, a pleading of inequitable
conduct under Rule 9(b) must include sufficient allegations of underlying facts from
which a court may reasonably infer that a specific individual (1) knew of the withheld
material information or of the falsity of the material misrepresentation, and (2) withheld
or misrepresented this information with a specific intent to deceive the PTO.” Id. at
1328-29. “A reasonable inference is one that is plausible and that flows logically from
the facts alleged, including any objective indications of candor and good faith.” Id. at
1329 n.5 (citing Greenstone v. Cambex Corp., 975 F.2d 22, 26 (1st Cir. 1992)).
Here, MTG’s allegations are that
34. LACH and RED CARPET had prior knowledge of the significance of
the Sater design at the time of the filing of the ‘034 patent and throughout
its prosecution.
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35. LACH, through counsel did disclose the SATER design, but did it in
such a way to draw attention away from its significance.
...
38. The duty of candor and good faith was violated by (1) LACH and his
attorney knowingly failing to acknowledge SATER’s substantial
contribution to the design as a whole and failing to name him as an
inventor.
39. The duty of candor and good faith was violated by (2) not
acknowledging and disclosing the close relationship LACH had with the
SATER design before the date of conception and the role the SATER
design played in LACH’s conception of the patented design.
40. The duty of candor and good faith was violated by (3) “hiding the ball”
when disclosing the SATER reference by including it in several hundred
pages of largely unrelated art;
41. The duty of candor and good faith was violated by (4) LACH,. falsely
declaring under oath, under penalty of perjury that ” [sic] I am the original,
first, and sole inventor of the subject matter which is claimed and for which
a design patent is sought when LACH knew that significant parts of the
design were originally conceived by SATER.
(Doc. 6, PAGEID #21-22).
These allegations do not support a claim for inequitable conduct because MTG
alleges that Lach and Red Carpet “did disclose the SATER design” to the PTO. Such
an allegation, even paired with the allegation that the disclosure was “in such a way to
draw attention away from its significance” and that Lach and Red Carpet were “hiding
the ball” by including the disclosure in several hundred pages, is inconsistent with a
claim that information was withheld or misrepresented. Moreover, “[b]ecause neither
mere nondisclosure of prior art references to the PTO nor failure to mention prior art
references in an affidavit constitutes affirmative egregious misconduct, claims of
inequitable conduct that are based on such omissions require proof of but-for
materiality.” Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1292-93
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(Fed. Cir. 2011). MTG has not alleged facts which would support a finding of but-or
materiality.
Therefore, Red Carpet’s Motion to Dismiss MTG’s claim of inequitable
conduct is GRANTED.
E. Unjust enrichment
In Count Four, MTG brings a claim of unjust enrichment based on Red Carpet
“commercially exploit[ing] the design claimed in the ‘034 patent.” (Doc. 6, ¶ 43).
“A successful claim of unjust enrichment requires that: (1) a benefit has been
conferred by a plaintiff upon a defendant; (2) the defendant had knowledge of the
benefit; and (3) the defendant retained the benefit under circumstances where it would
be unjust to do so without payment.” Desai v. Franklin, 177 Ohio App. 3d 679, 689, 895
N.E.2d 875, 882 (Ohio Ct. App. 2008).
To the extent that MTG claims that Sater should have been listed on the patent
as a co-inventor, MTG would have no right to an accounting from Red Carpet. Dee v.
Aukerman, No. C-3-84-144, 1987 WL 125075, at *2 (S.D. Ohio Mar. 27, 1987) (citing 35
U.S.C. §262, which provides: “In the absence of any agreement to the contrary, each of
the joint owners of a patent may make, use or sell the patented invention without the
consent of and without accounting to the other owners.”).
To the extent that MTG claims that Sater is the sole inventor, Red Carpet argues
that MTG’s claim for unjust enrichment is barred by the statute of limitations.
In Ohio, the six-year statute of limitations found in Ohio Revised Code § 2305.07
applies to unjust-enrichment claims.
Miami Valley Mobile Health Services, Inc. v.
ExamOne Worldwide, Inc., 852 F.Supp.2d 925, 933 (S.D.Ohio 2012). An action for
unjust enrichment arises when a party retains money or benefits which, in justice and
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equity, belongs to another. Liberty Mut. Ins. Co. v. Indus. Comm., 40 Ohio St.3d 109,
532 N.E.2d 124 (Ohio 1988). The statute of limitations for an unjust enrichment claim is
not subject to equitable tolling or a discovery rule. Palm Beach Company v. Dun &
Bradstreet, Inc., 106 Ohio App.3d 167, 665 N.E.2d 718, 723 (Ohio Ct.App. 1995).
In Case 51, this Court explained by way of background that in September of
2002, Sater sued Red Carpet for copyright infringement. (Case No. 1:03cv51, Doc. 19,
PAGEID # 2). Sater alleged that Red Carpet’s “Galaxies” line of products infringed
Sater’s copyrights. (Id.) Then, in November 2002, Red Carpet and Sater entered into a
license agreement in which Red Carpet agreed to discontinue further commercialization
of its Galaxies line, and also agreed to pay Sater a 10% royalty on sales. (Id.) This
Court also explained that not long after Sater dismissed the lawsuit, another dispute
arose over Red Carpet’s Cosmix line:
On January 8, 2003, Sater’s attorney, Leonard DuBoff, faxed a letter to
Red Carpet’s attorney, Thomas Burger, which claimed that Red Carpet
was breaching the settlement agreement because its Cosmix line of
products was “virtually identical” to the works covered by the settlement
agreement. Complaint Ex. H. DuBoff also requested Burger to call him
immediately “so that we can discuss this matter and avoid the necessity of
filing another lawsuit.” Id.
Burger responded to DuBoff the same day. In his letter, Burger stated that
the Cosmix products were a new and different line with a different
structure than the products covered by the license agreement. Id. Ex. I.
Burger also informed DuBoff that Red Carpet had applied for a design
patent on its design and that Red Carpet was confident that its application
would be approved. Burger also sent DuBoff an exemplar of the alleged
infringing product. Burger told DuBoff that he would be out of the office
the entire following week, but closed by stating, “We are forwarding this
product to you because Red Carpet wants to take all reasonable steps to
resolve any potential disputes without litigation, if at all possible.” Id.
...
On January 14, 2003, DuBoff emailed Burger about the exemplar he had
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received, stating that “we appear to disagree on whether the new Red
Carpet piece is ’substantially similar’ to Neil Sater’s copyrighted work.”
...
In the meantime, apparently unbeknownst to Burger, other events were
transpiring which prompted the filing of this lawsuit. According to Paul
Schenz, who works for Red Carpet in some unidentified capacity, during
January 2003, Red Carpet was displaying its products at a trade show in
Atlanta, Georgia. Apparently, Sater and/or his agents were in attendance
at the same show. Sometime during the hours between the evening of
Friday, January 10 and the Saturday, January 11, an unknown person or
persons vandalized Red Carpet’s booth at the trade show. Interestingly
and coincidentally, the only products destroyed were Red Carpet’s Cosmix
wind sculptures. None of its other wares were disturbed. Schenz Aff. ¶ 6.
In addition, during the show, Red Carpet heard from some of its
customers that Sater and/or his agents had been saying that Red Carpet
was selling “illegal products” and that he was going to sue to put Red
Carpet out of business. Id. ¶ 7.
(Case No. 1:03cv51, Doc. 19, PAGEID # 3-5). In light of this history between Sater and
Red Carpet, it is clear that any claim Sater had against Red Carpet arose before 2009.
Therefore, MTG’s unjust enrichment claim is barred by the statute of limitations and Red
Carpet’s Motion to Dismiss MTG’s claim of unjust enrichment is GRANTED.
III.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that Plaintiff Red Carpet Studio’s
Motion to Dismiss the Amended Complaint (Doc. 62) is GRANTED.
IT IS SO ORDERED.
/s/ Michel R. Barrett
JUDGE MICHAEL R. BARRETT
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