Wedi Corp. v. Wright et al

Filing 266

MINUTE ORDER denying deferred portions of wedi Corp.'s 262 Motion for Reconsideration. Authorized by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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HYDRO-BLOK USA LLC, et al.,

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Plaintiffs,
v.
WEDI CORP.,

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Defendant,

MINUTE ORDER

v.
HYDROBLOK INTERNATIONAL
LTD.,
Counter-defendant.

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C15-671 TSZ

WEDI CORP.,
Plaintiff,

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v.
BRIAN WRIGHT, et al.,
Defendants.

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The following Minute Order is made by direction of the Court, the Honorable
17 Thomas S. Zilly, United States District Judge:
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(1)
The deferred portions of wedi Corp.’s motion for reconsideration, docket
no. 262, are DENIED. Contrary to wedi’s assertion, in partially granting the motion for
summary judgment brought by Brian Wright, Sound Product Sales L.L.C., Hydro-Blok
USA LLC, and Hydroblok International (collectively, “Wright”), and dismissing wedi’s
claims under the Lanham Act and Washington’s Consumer Protection Act, the Court did
not weigh the evidence or fail to draw all “justifiable” inferences from the evidence in
wedi’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the
Court took note of the dearth of evidence in the record to support wedi’s contentions that
the statements “All HYDRO-BLOKTM products are IAPMO tested & certified” and
“HCFC-FREE XPS” are literally false. See Order at 15-21 (docket no. 260).

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MINUTE ORDER - 1

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wedi cannot dispute that the International Association of Plumbing and
Mechanical Officials (“IAPMO”) issued a Certificate of Listing for HYDRO-BLOK
tileable shower receptors and shower kits each year during the period from March 2015
to March 2019. wedi’s argument that the IAPMO was somehow duped into issuing, or
otherwise should not have issued, such Certificates of Listing does not somehow render
false the statement that the products were in fact certified. The same analysis applies
with regard to the certifications of HYDRO-BLOK products by ICC Evaluation Service,
a subsidiary of the International Code Council. Challenges to the process for certification
do not show that the boasts about certifications that were actually received are untruthful.
In moving for reconsideration as to the Court’s two-page discussion about the
“HCFC-FREE” representation, an issue to which wedi devoted less than a sentence in its
response to Wright’s motion for summary judgment, see Resp. at 4 (docket no. 187),
wedi relies heavily on a test report setting forth “--” next to the phrase “Ozone Depleting
Substances, asserting that the Court should have interpreted “--” as meaning “no
conclusion was given,” see wedi’s Mot. at 5-6 (docket no. 262). wedi does not explain
how “no conclusion” supports its claim that the statement “HCFC-FREE” is literally
false. wedi also fails to address the other basis on which the Court rejected its claim that
“HCFC-FREE XPS” is literally false, namely the Safety Data Sheet submitted by wedi,
which is a document disseminated by FUDA Thermal Insulation Material Co., Ltd., the
manufacturer of the extruded polystyrene foam (“XPS”) at issue, indicating that the XPS
is “free of HCFC blowing agents and complies with EU Regulation EC/1005/2009,”
regarding substances that deplete the ozone layer. See Order at 21 (docket no. 260)
(citing Ex. 37 to Kanter Decl. (docket no. 197 at 36)). wedi provides no reason why
Wright could not rely on the Safety Data Sheet in labeling and marketing the HYDROBLOK products or why the Court could not consider the Safety Data Sheet in rejecting
wedi’s allegation of falsity.
(2)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 19th day of September, 2019.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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MINUTE ORDER - 2