FLIR Systems, Inc. v. Gambaro et al

Filing 133

Order. Final Form of Amended Answer by Gambaro to Flir's Amended Complaint due 6/14/2011. Flir's responsive pleading due 06/23/2011. Answer by MKC to Flir's Amended Complaint due 06/14/2011. Flir's responsive pleading due 06/23/20 11. The Court stays all discovery as to damages issues. The Court sets the following schedule for the completion of liability discovery and for resolution of the issues of liability and validity of the '322 patent only. Liability discovery shall be completed by 09/01/2011. Flir's motion for summary judgment due 10/17/2011; Defendants' separate responses due 11/10/2011; Flir's separate reply due 11/27/2011; Defendants' separate cross-motions for summary judgment due 11/10/2011; and Flir's separate response due 12/4/2011; Defendants' separate replies are due 12/21/2011. Joint Status reports due 07/15/2011 and 08/15/2011. Signed on 05/23/2011 by Judge Anna J. Brown. See 9 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

FLIR SYSTEMS, INC.,

10-CV-231-BR

Plaintiff,
ORDER
v.
MOTIONLESS KEYBOARD COMPANY,
an Oregon corporation, and
THOMAS L. GAMBARO, an
individual,
Defendants.

FAROOQ A. TAYAB
MICHAEL J. COLLINS
WILLIAM A. BREWER, III
Bickel and Brewer
4800 Comerica Bank Tower
1717 Main Street
Dallas, TX 75201
[phone]

SUSAN D. MARMADUKE
SIVHWA GO
Harrang Long Gary Rudnick, PC
1001 S.W. Fifth Avenue, Suite 1650
Portland, OR 97204-1116
[phone]
Attorneys for Plaintiff
1

-

ORDER

THOMAS L. GAMBARO
P.O. Box 14741
Portland, OR 97293
[phone]
Defendant, Pro Se
JAMES L. BUCHAL
Murphy & Buchal, LLP
2000 S.W. First Avenue, Suite 320
Portland, OR 97201
[phone], ext. 2
Attorneys for Defendant Motionless Keyboard Company
BROWN, Judge.
On April 18, 2011, the Court issued its Opinion and Order
(#129) in which the Court, inter alia, denied the Motion (#82) to
Dismiss or, in the Alternative, for Summary Judgment by Defendant
Motionless Keyboard Company (MKC) and its request to stay this
matter as to Plaintiff Flir Systems, Inc.’s claims against MKC.
The Court also granted Flir’s Motion (#86) for Summary Judgment,
which precludes Defendants MKC and Thomas L. Gambaro from
relitigating the claims construction discussed at length in the
opinion.

The Court directed the parties to confer and to provide

the Court with a summary of their proposed case-management plans.
The Court acknowledges receipt of Flir’s Proposed Case
Management Plan and Status Report (#130), MKC’s Response (#131)
to Scheduling proposals, and Gambaro’s May 1, 2011, letter (#132)
regarding same.

After reviewing the parties’ filings, the Court

concludes it is premature to convene a case-management conference
2

-

ORDER

and orders as follows:
1.

Jurisdiction.

In his letter of May 1, 2011, Gambaro for the first time
raises objections to the Court’s subject-matter and personal
jurisdiction over Defendants.

Gambaro contends the Supreme Court

has original jurisdiction over this matter as an action “between
two or more states.”

See 28 U.S.C. § 1251(a).

The Court notes,

however, this matter does not involve any state as a party.
Instead, the Court is satisfied it has subject-matter
jurisdiction pursuant to 28 U.S.C. § 1331 under which the
“district courts have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States,” because this matter arises under the patent laws of the
United States.
Gambaro also asserts the Court does not have personal
jurisdiction over Defendants.

Although Gambaro correctly notes a

corporation must be represented by counsel in federal court, see
Cowland v. California Men’s Colony, 506 U.S. 194, 202 (1993), he
incorrectly suggests if he directs MKC’s counsel to withdraw, the
Court will no longer have in personam jurisdiction over MKC.
Personal jurisdiction, however, is a question of the Court’s
power over a party that does not concern whether a party has
representation.

In this case, the Court unquestionably has

personal jurisdiction over MKC as to the patent claims arising
3

-

ORDER

from MKC’s presence in Oregon.

Moreover, MKC was named as a

Defendant; was properly served by Flir on March 3, 2010; and made
an appearance in this matter to seek dismissal of Plaintiff’s
claims against it.

In any event, the Court notes Gambaro, a pro

se co-defendant, cannot make any motion on MKC’s behalf; i.e., if
MKC wishes to move for dismissal based on the Court’s putative
lack of jurisdiction over it, such a motion must be filed by
MKC’s counsel of record.
In addition, Gambaro contends the Court does not have
personal jurisdiction over him because he is “withdrawing his
consent of jurisdiction on this case.”
not a party to this case.”

Gambaro now states he “is

These assertions are without any

foundation in law.
When there is not any federal statute that governs personal
jurisdiction, federal courts apply the law of the state in which
the district court sits.

Schwarzenegger v. Fred Martin Motor

Co., 374 F.3d 797, 800 (9th Cir. 2004).

Under Oregon Rule of

Civil Procedure 4A, a court has personal jurisdiction over “a
natural person present within this state” or “domiciled within
this state.”

Flir properly served Gambaro (#7, #9) at his Oregon

Post Office Box, and Gambaro has filed Answers to Flir’s
Complaint and Amended Complaint in which he admits to having an
Oregon residence for the past 30 years.

Gambaro has also invoked

the Court’s jurisdiction over the Counterclaims he is asserting

4

-

ORDER

against Flir.

Accordingly, none of Gambaro’s assertions

regarding jurisdiction provide a basis for the Court to conclude
it should not proceed to litigate this action to conclusion.
2.

Parties’ Operative Pleadings.

The parties point to some confusion over the current
operative pleadings in this matter.
its Amended Complaint (#15).

Flir’s operative pleading is

Gambaro filed a number of pleadings

by which it appears he intended to amend his Answer (#74, #76,
#92), but he did so without leave of Court and in violation of
the Court’s order prohibiting him from filing additional motions
while the Motion to Dismiss and Motion for Summary Judgment were
pending.

See Docket Nos. 96, 97.

Now that the Motion to Dismiss and Motion for Summary
Judgment have been resolved, the Court gives Gambaro leave to
file no later than June 14, 2011, a final form of an amended
answer that sets out each of the responsive allegations and
affirmative defenses to Flir’s Amended Complaint together with
all of the counterclaims he seeks to litigate against Flir
arising from this dispute.

If Gambaro does not file such an

amended answer by June 14, 2011, the Court will presume Gambaro
wishes to proceed on his original Answer (#11), as modified by
this Court’s Order (#48) issued on June 23, 2010.

If Gambaro

does file an amended answer by June 14, 2011, Flir shall file a

5

-

ORDER

pleading responsive thereto no later than June 23, 2011.1
3.

MKC’s Status.

As noted, the Court denied MKC’s Motion to Dismiss Flir’s
claims against MKC.

MKC, however, has not filed an answer to

Plaintiff’s First Amended Complaint (#15).

In MKC’s Response

(#131) to Scheduling Proposals, MKC’s counsel, James L. Buchal,
indicates his intent to withdraw as counsel for MKC pending this
Court’s scheduling order unless the Court intends to proceed
directly to a jury trial as Gambaro requests.
It appears MKC assumes it may choose not to defend itself
for the immediate future until such time as the Court may
determine a jury trial is warranted.

As noted, however, MKC has

been named as a Defendant, was properly served, and can neither
participate further in this matter nor prevent a default order
from being taken against it without counsel active in the case.
If MKC wishes to preserve the opportunity to defend against
Flir’s claims, it must file through counsel an answer to Flir’s
Amended Complaint no later than June 14, 2011.

If MKC does not

do so, Flir has leave to seek an order of default against MKC.
If MKC does file an answer, Flir’s responsive pleading thereto is
due no later than June 23, 2011.

1

The Court encourages Flir to defer motions against any
amended answer to the dispositive-motion process described
herein.
6

-

ORDER

4.

Schedule for Limited Discovery.

The parties have indicated they cannot agree as to the
schedule for or scope of discovery pertinent to the remainder of
the issues raised in these proceedings.

Flir has proposed a stay

of damages discovery in this matter to permit a period of limited
discovery as to liability issues only and then an adjudication of
Flir’s anticipated motion for summary judgment as to
noninfringement and invalidity of the ‘322 Patent at issue.
Gambaro, in turn, requests the Court to permit full discovery on
all issues and then proceed directly to a jury trial on the
issues of liability and damages presumably without any
intervening dispositive motion practice.
Pursuant to its case-management authority under Federal Rule
of Civil Procedure 16, the Court concludes it is prudent to
manage discovery in this matter on a bifurcated basis as to the
separate issues of liability and damages.

In particular, the

Court concludes discovery should proceed now only as to liability
issues in order to permit resolution (or at least a narrowing) of
the liability issues before the parties incur the effort and
expense associated with any discovery of facts related to
damages.
Accordingly, the Court hereby stays all discovery as to
damages issues and sets the following case-management deadlines
for the completion of liability discovery and for resolution of

7

-

ORDER

the issues of liability and validity of the ‘322 patent only:
1.

As already ordered, Defendants must file any pleadings
in response to Flir’s Amended Complaint (#15) no later
than June 14, 2011, and Flir must file any responsive
pleading no later than June, 23, 2011.

If MKC files an

answer and maintains counsel, it will be subject to
discovery on issues of liability.

If MKC does not file

an answer to Flir’s Amended Complaint, Flir may move
for an order of default against MKC.
2.

The Court permits discovery only into the issue of
liability (infringement/noninfringement) and invalidity
of the ‘322 Patent in light of the Court’s Order (#126)
granting Flir’s Motion for Partial Summary Judgment.
All such liability discovery shall be completed by
September 1, 2011.

3.

The parties may make cross-motions for summary judgment
as to the issues of infringement, noninfringement, and
validity of the ‘322 Patent no later than October 17,
2011.

If the parties wish to file cross-motions, the

briefing schedule is as follows:
Flir’s motion for summary judgment is due October
17, 2011;
Defendants’ separate responses are due November
10, 2011;

8

-

ORDER

Flir’s separate reply is due November 27, 2011;
Defendants’ separate cross-motions for summary
judgment are due November 10, 2011; and
Flir’s separate response is due December 4, 2011;
Defendants’ separate replies are due December 21,
2011.
4.

The Court defers all other case-management decisions,
including whether there will be a separate trial of the
liability issues, until the above-referenced motions
are resolved.

5.

To keep the Court apprised of their progress in moving
this matter forward as to the infringement,
noninfringement, and validity issues, the parties shall
make joint status reports to the Court on July 15,
2011, and August 15, 2011.

Plaintiff’s counsel shall

initiate conferral with Defendants regarding, and
ensure the timely filing of, each joint status report.
IT IS SO ORDERED.
DATED this 20th day of May, 2011.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

9

-

ORDER