FLIR Systems, Inc. v. Gambaro et al

Filing 168

Order. The Court strikes Gambaro's Video Declaration 167 , and Plaintiff need not respond to it. Signed on 07/12/2011 by Judge Anna J. Brown. See 6 page Order for full text. Copy of this Order mailed to Defendant Gambaro on 7/13/2011. (bb)

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

FLIR SYSTEMS, INC.,

3:10-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
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ORDER

THOMAS L. GAMBARO
P.O. Box 14741
Portland, OR 97293
[phone]
Defendant, Pro Se
BROWN, Judge.
The Court acknowledges receipt of Defendant Gambaro’s Reply
(#163) to Flir Incomplete Answers and Affirmative Defenses,
Gambaro’s Motion (#164) to Demand Discovery for All Documents
Related to False Charges and Defamation, Gambaro’s Declaration
(#165) in Support of Defendant Pro Se Counterclaims, Gambaro’s
U.S.P. 5,332,322 and U.S.D. 405,071 Counterclaims (#166), and
Gambaro’s Video Declaration (#167) in Support of Defendant Pro Se
Exhibit 03 to Reverse Ruling.

After reviewing Gambaro’s filings,

the Court orders as follows:
1.

Gambaro’s Reply (#163) to Flir Incomplete Answers and
Affirmative Defenses.
The Court accepts docket entry #163 as Gambaro’s Reply to

Flir’s Answer and Affirmative Defenses (#154) to Gambaro’s
Counterclaims against Flir.

No further action is required by the

parties or the Court as to this filing at this time.
2.

Gambaro’s Motion (#164) to Demand Discovery for All
Documents Related to False Charges and Defamation.
The Court construes docket entry #164 as a Motion to Compel

production of documents related to Flir’s allegations in its
Answer and Affirmative Defenses that Gambaro has, inter alia,
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ORDER

intentionally withheld documents and has otherwise defrauded the
U.S. Patent and Trademark Office.

In his Motion, however,

Gambaro did not include the required certification under Local
Rule 7-1 that he conferred with Flir’s counsel in an attempt to
resolve this discovery dispute before filing his Motion.

The

Court has repeatedly reminded Gambaro that he must comply with
the Local Rules and with Local Rule 7-1 in particular.
The Court, therefore, denies Gambaro’s Motion (#164) to
Compel with leave for Gambaro to file a new motion to compel
discovery after he has meaningfully conferred with Flir’s counsel
as to the nature and scope of any disputed discovery request.
Accordingly, Plaintiff need not respond to this filing.
3.

Gambaro’s Declaration (#165) in Support of Defendant Pro Se
Counterclaims.
Although styled as a “Declaration,” Gambaro makes numerous

arguments in docket entry #165 as to the merits of Flir’s
Affirmative Defenses to Gambaro’s Counterclaims.

To that extent,

the Court construes Gambaro’s Declaration as an attempted
evidentiary showing for the purposes of defeating Flir’s
Affirmative Defenses.

Such a showing, however, is premature.

The parties should currently be engaged in discovery, and the
Court has issued a Case-Management Order (#133) that provides a
timeline for resolving the merits of this matter.

Gambaro’s

cross-motions for summary judgment, including a motion for
summary judgment to attempt to defeat Flir’s Affirmative
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ORDER

Defenses, are due after the close of discovery on September 1,
2011, and no later than November 10, 2011.
The Court, therefore, concludes this filing does not require
any action by the Court or Plaintiff at this time.

If Gambaro

makes a cross-motion for summary judgment at the time permitted
to do so, he may refer to this filing in support of that motion.
4.

Gambaro’s U.S.P. 5,332,322 and U.S.D. 405,071 Counterclaims
(#166).
On June 1, 2011, Gambaro filed U.S.P. 5,332,322 and U.S.D.

405,071 Counterclaims (#141), in which he asserts Counterclaims
against Flir for patent infringement and seeks declaratory relief
and damages.

On June 23, 2011, Flir filed its Answer and

Affirmative Defenses to Gambaro’s Counterclaims.

As noted, on

June 30, 2011, Gambaro filed a pleading the Court construes as a
Reply.
In docket entry #166, Gambaro appears to attempt to amend
his Counterclaims to include an additional allegation of
increased damages, a claim for defamation, a claim for malicious
prosecution, and a claim for punitive damages.

Gambaro did not,

however, state whether Flir objects to this proposed amendment or
otherwise seek leave of Court to amend his Counterclaims in
accordance with Federal Rule of Civil Procedure 15(a).
The Court, therefore, construes docket entry #166 as a
Motion for Leave to file Amended Counterclaims, and, in the
exercise of its discretion, grants Gambaro’s Motion and construes
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ORDER

Pleading #166 as Gambaro’s Amended Counterclaims.

Any responsive

pleading to Pleading #166 by Flir must be filed no later than
July 25, 2011.
5.

Gambaro’s Video Declaration (#167) in Support of Defendant
Pro Se Exhibit 03 to Reverse Ruling.
In his Declaration, Gambaro again raises numerous arguments

concerning rulings issued by Chief Judge Ann Aiken from a prior
action in which she ruled on the claim construction of terms of
Gambaro’s ‘322 patent.

See Motionless Keyboard Co. v. Microsoft,

No. 04-CV-180-AA, 2005 WL 1113818, at *13-*20 (D. Or. May 6,
2005).

Chief Judge Aiken’s claim construction was upheld on

appeal to the United States Federal Circuit Court of Appeals.
Motionless Keyboard Co. v. Microsoft, 486 F.3d 1376, 1380-82
(Fed. Cir. 2007).

The Court notes Gambaro also filed his Video

Declaration in case number 04-CV-180-AA in support of a motion
for reconsideration, which Chief Judge Aiken denied on July 6,
2011.
The Court has repeatedly informed Gambaro that he may not
challenge Chief Judge Aiken’s rulings in the matter before this
Court.

In its Opinion and Order (#129) issued on April 18, 2011,

the Court granted Flir's Motion for Partial Summary Judgment and
ordered "Gambaro and MKC are precluded from relitigating" Chief
Judge Aiken's constructions in this matter.
In response to Gambaro’s continued challenges to those
rulings, the Court issued an Order on June 3, 2011, in which it
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ORDER

ordered
Defendant Gambaro not to file any other
pleading, motion, or other paper in which he
attempts to raise again his objections to
this Court's conclusion that Chief Judge
Aiken's previous claim constructions may not
be relitigated in this action or otherwise
attempts to litigate their correctness.
Gambaro's objections are duly noted in the
record and may be raised on appeal after this
case is concluded at the trial level. The
Court has previously warned Gambaro that he
will be sanctioned if he does not comply with
the Court's case-management orders.
Accordingly, if Gambaro violates this order,
the Court will sanction him and will consider
striking all of his pleadings and precluding
him from defending FLIR's claims against him.
Accordingly, the Court strikes Gambaro’s Video Declaration
(#167), and Plaintiff need not respond to it.
IT IS SO ORDERED.
DATED this 12th day of July, 2011.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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ORDER