Wingard, Peter v. Metro Ford of Madison
Filing
37
ORDER setting evidentiary hearing on Feb. 20, 2015 at 1 p.m. Signed by District Judge James D. Peterson on 02/05/2015. (mfh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PETER F. WINGARD,
ORDER
Plaintiff,
v.
14-cv-185-jdp
METRO KIA OF MADISON,
Defendant.
PETER F. WINGARD,
ORDER
Plaintiff,
v.
14-cv-401-jdp
BALLWEG CHEVROLET,
Defendant.
PETER F. WINGARD,
ORDER
Plaintiff,
v.
14-cv-402-jdp
METRO FORD OF MADISON,
Defendant.
PETER F. WINGARD,
ORDER
Plaintiff,
v.
14-cv-403-jdp
SMART MOTORS TOYOTA,
Defendant.
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PETER F. WINGARD,
ORDER
Plaintiff,
v.
14-cv-404-jdp
ZIMBRICK HONDA,
Defendant.
Peter Wingard is the plaintiff in these five patent cases assigned to me. In each case,
Wingard asserts U.S. Patent No. 5,530,431, claiming an anti-theft device for protecting
electronic equipment, against a local auto dealer. Each of the defendants has challenged
Wingard’s standing to sue on the grounds that he is not the owner of the ‘431 patent because
he lost the patent in his 2010 personal Chapter 7 bankruptcy.
The essential legal principles are not in dispute. This court does not have jurisdiction
to hear these cases if Wingard lacks standing to bring the suits. Wingard has standing only if
he was the owner of the’431 patent when he filed these suits, and it is his burden to show that
this is so. All of Wingard’s personal property became property of the bankruptcy estate when
he filed a petition for Chapter 7 personal bankruptcy in 2010, regardless of whether that
property was listed on the schedule of his assets. But any unscheduled property, such as the
‘431 patent, could not have been abandoned back to Wingard at the close of the bankruptcy.
If Wingard himself owned the ‘431 patent at the time he filed his bankruptcy petition, the
patent is still the property of the bankruptcy estate, even though the bankruptcy is closed.
Under these circumstances, it is only the bankruptcy trustee, not Wingard, with standing to
sue to enforce the ‘431 patent.
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But Wingard contends that he did not personally own the ‘431 patent when he filed
for bankruptcy, The Wingard Company did. Thus, Wingard must show that The Wingard
Company owned the patent when he filed for bankruptcy, but that he personally owned the
patent when he filed these suits. To make this showing, Wingard has adduced evidence of a
series of assignments that moved the patent back and forth between Wingard and his
company. Because Wingard controlled his company, he could move the patent back and forth
at his whim, but he had to do so in writing.
One assignment is critical: Wingard alleges that on November 5, 2007, he executed a
written assignment of the ‘431 patent to The Wingard Company. But that document has
been lost. As evidence of the assignment, Wingard submits his own declaration (see, e.g., Case
No. 14-cv-404, Dkt. 34) and a “confirmatory assignment,” which Wingard executed on
September 25, 2014 (Case No. 14-cv-404, Dkt. 32-11). The confirmatory assignment
purports to document the November 5, 2007, assignment.
Under some circumstances, an after-the-fact confirmatory assignment is adequate
evidence of an earlier written assignment. See, e.g., Am. Optical Co. v. Shuron Optical Co., 9 F.2d
932, 936 (W.D.N.Y. 1925) (opposing party did not object to the confirmatory assignment).
But defendants are understandably skeptical of Wingard’s confirmatory assignment for
multiple reasons, particularly because it was executed six days after defendant Zimbrick
Honda filed a motion to dismiss its case for lack of standing. Whether Wingard executed a
written assignment of the ‘431 patent to The Wingard Company on November 5, 2007, is a
question of fact. And even if the confirmatory assignment were presumed valid, c.f. Imax Corp.
v. In-Three, Inc., 385 F. Supp. 2d 1026, 1029 (C.D. Cal. 2005), defendants have adduced
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sufficient evidence to rebut that presumption. The standing issue thus turns on a disputed
fact. When the factual basis of standing is challenged, as it is here, the plaintiff must prove his
standing by a preponderance of the evidence. Lee v. City of Chicago, 330 F.3d 456, 468 (7th
Cir. 2003).
During the status conference on January 16, 2015, both sides took the position that
the standing issue was ripe for a decision on the documentary record already before the court.
Not every factual dispute concerning standing requires an evidentiary hearing, because often
the facts concern solely documentary evidence. Crawford v. United States, 796 F.2d 924, 929
(7th Cir. 1986). But that is not the case here: the decisive issue turns on the credibility of
Wingard’s testimony that he executed a written assignment to The Wingard Company on
November 5, 2007. The determination of Wingard’s credibility requires an evidentiary
hearing. See, e.g., Bushberger v. Protecto Wrap Co., No. 07-cv-8, 2008 WL 725189, at *4 (E.D.
Wis. Mar. 17, 2008) (citing Bischoff v. Osceola County, 222 F.3d 874, 879 (11th Cir. 2000)
(requiring an evidentiary hearing for standing issues that turn on credibility). Although the
court has not found a Seventh Circuit opinion requiring an evidentiary hearing in this precise
circumstance, there is ample Seventh Circuit authority instructing district courts to resolve
factual disputes going to jurisdiction through an appropriate fact-finding process. Crawford,
796 F.2d at 929. Even if an evidentiary hearing were not strictly required, I would conclude
that a live evidentiary hearing is the appropriate process to resolve the disputed facts
concerning Wingard’s standing to sue.
Accordingly, I will set an evidentiary hearing on defendants’ motions to dismiss for
lack of standing for Friday, February 20, at 1 p.m. I expect that the hearing will take no more
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than 90 minutes, although I will keep the calendar clear until 4 p.m. in case it is needed. I
expect that the main event will be Wingard’s testimony and cross-examination, but I will take
whatever evidence the parties care to present. I will also hear brief closing arguments.
I will require defendants to appoint lead counsel to present their case. Defendants may
have one attorney handle the Wingard examination and another make a closing argument,
but I will not allow each defendant to conduct its own cross-examination and I will not hear
multiple closing arguments. I will not require in-person appearances for non-lead counsel.
Entered February 5, 2015.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge
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