Metalcraft of Mayville Inc v. The Toro Company et al
Filing
83
DECISION AND ORDER signed by Judge Lynn Adelman on 2/28/17 that defendants motion for oral argument 74 & 75 is DENIED. Further ordering that defendants motion to seal 73 is DENIED. The Clerk of Court shall make the relevant documents publicly available. Further ordering that Scags motion to strike 77 is DENIED. (cc: all counsel) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
METALCRAFT OF MAYVILLE, INC.
d/b/a Scag Power Equipment,
Plaintiff,
v.
Case No. 16-CV-544
THE TORO COMPANY and
EXMARK MANUFACTURING CO., INC.,
Defendants.
DECISION AND ORDER
Metalcraft of Mayville, Inc. (d/b/a Scag Power Equipment) (“Scag”), brings this
action against the Toro Company and Exmark Manufacturing Co., Inc., alleging
infringement of its patent on an operator suspension system for commercial riding
lawnmowers. On August 1, 2016, District Judge Pamela Pepper signed an order on
behalf of Senior District Judge Rudolph T. Randa granting Scag’s motion for a
preliminary injunction precluding defendants “from making, using, selling, and offering to
sell lawnmowers equipped with platform suspension systems that infringe Scag’s
patent.” ECF No. 30, at 1. A week later, this case was reassigned to me.
Since then, various portions of this dispute have been proceeding in three
separate forums. First, defendants appealed the grant of the preliminary injunction to
the Federal Circuit Court of Appeals, which recently affirmed that order. ECF No. 79.
Second, defendants requested ex parte reexamination of Scag’s patent claims by the
U.S. Patent and Trademark Office (USPTO). ECF No. 66-1. The USPTO granted
defendants’ request for reexamination of certain claims in the relevant patent, citing “[a]
substantial new question of patentability” based on prior art that was not cited,
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discussed, or applied appropriately during the original prosecution of Scag’s patent. See
ECF No. 66-8.
Finally, defendants moved in this court, relying on the USPTO’s decision to
reexamine Scag’s patent claims, for an order dissolving the preliminary injunction. See
ECF No. 65. Recognizing that I lacked jurisdiction to issue such an order while their
appeal to the Federal Circuit was pending, defendants moved, in the alternative, for an
indicative ruling as to whether I would dissolve the preliminary injunction if the Federal
Circuit were to remand for that purpose. Id. In light of the Federal Circuit’s recent
opinion and judgment affirming the grant of the preliminary injunction, defendants have
withdrawn their request for an indicative ruling. ECF No. 80, at 2. Once I receive the
appellate mandate, see Fed. R. App. P. 41, I will consider defendants’ still-pending
motion to dissolve the preliminary injunction. In the meantime, I will address the parties’
other pending motions, which are associated with that motion.
Defendants move for oral argument on their motion to dissolve the preliminary
injunction. This court hears oral argument on motions at its discretion. Civil L. R. 7(e)
(E.D. Wis.); see also Fed. R. Civ. P. 78. In short, defendants request oral argument
because they have to ramp up production of their enjoined mowers soon or start firing
or furloughing some of their manufacturing employees. They also argue that Scag has
been deliberately delaying the USPTO’s reexamination proceedings, though they do not
argue that Scag has done anything in violation of USPTO procedure. None of this
shows that oral argument would be helpful in resolving defendants’ pending motion to
dissolve the preliminary injunction. It seems as though defendants are merely trying to
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hasten a decision on that motion. I will not schedule oral argument for that purpose.
Therefore, I will deny this motion.
Next, defendants move to seal portions of both their motion for oral argument
and the declaration filed with that motion. This court considers any document filed to be
public unless it is accompanied by a motion to seal supported by “sufficient facts
demonstrating good cause for withholding the document or material from the public
record.” General L. R. 79(d)(1)–(4) (E.D. Wis.). “The standard for showing good cause
is quite high . . . .” Id. committee comment. “In civil litigation only trade secrets,
information covered by a recognized privilege (such as the attorney-client privilege), and
information required by statute to be maintained in confidence (such as the name of a
minor victim of a sexual assault), is entitled to be kept secret . . . .” Baxter Int’l Inc. v.
Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002). Given this clear standard, I will
deny outright any motion [to seal] . . . that does not analyze in detail,
document by document, the propriety of secrecy, providing reasons and
legal citations. Motions that represent serious efforts to apply the
governing rules will be entertained favorably, and counsel will be offered
the opportunity to repair shortcomings. Motions that simply assert a
conclusion without the required reasoning, however, have no prospect of
success.
Id. at 548.
Defendants have not shown good cause to seal. They argue only that the motion
and declaration “contain highly sensitive and confidential business information” that “is
readily recognizable as of a nature that should be restricted.” ECF No. 73, at 1. They do
not “analyze the applicable legal criteria or contend that any document contains a
protectable trade secret or otherwise legitimately may be kept from public inspection.”
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Baxter, 297 F.3d at 546. This motion is “so perfunctory” that it can be “summarily
rejected.” Id. I will deny this motion.
Finally, Scag moves to strike defendants’ motion for oral argument and the
declaration filed with that motion. According to Scag, rather than arguing the need for
oral argument, defendants used their motion and declaration to impermissibly argue
about the harm caused by the preliminary injunction and to claim that Scag is being
dilatory in proceedings before the USPTO. I agree with Scag up to this point. However,
where I see defendants’ arguments as merely insufficient to support their motion, Scag
sees them as “highly prejudicial,” such that they should be struck from the record. ECF
No. 77, at 2. Scag provides no applicable legal criteria, nor does it cite any legal
authority whatsoever in support of its motion. As with defendants’ motion to seal, this
motion is so perfunctory that I will deny it outright.
THEREFORE, IT IS ORDERED that defendants’ motion for oral argument (ECF
Nos. 74 & 75) is DENIED.
IT IS FURTHER ORDERED that defendants’ motion to seal (ECF No. 73) is
DENIED. The Clerk of Court shall make the relevant documents publicly available.
IT IS FURTHER ORDERED that Scag’s motion to strike (ECF No. 77) is
DENIED.
Dated at Milwaukee, Wisconsin, this 28th day of February, 2017.
s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge
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