United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
G. DOUMAR JUDGE
29, 2017, the parties appeared before the Court for a final
pretrial conference. During the hearing, the Court addressed
several pending matters, including Aqua-Leisure Industries,
Inc.'s ("Defendant") Amended Motion for Summary
Judgment ("Motion"). ECF No. 117. For the reasons
stated at the hearing and for those set forth below,
Defendant's Motion is DENIED.
9, 2017, Defendant filed an Amended Motion for Summary
Judgment and supporting memorandum ("Def.
Br."). ECF Nos. 117, 118. In the Motion,
Defendant asks the Court to enter an order (1) barring
Plaintiffs from asserting claims based on direct import sales
by Greyland Trading Limited ("Greyland") to retail
store customers or attributing those sales to Defendant
("Issue One"); (2) dismissing all claims of
infringement against the Hex Chair ("Issue Two");
(3) dismissing all claims of infringement against the 2-in-l
recliner ("Issue Three"); (4) dismissing all claims
against the current version of the recliner ("Issue
Four"); (5) declaring Claims 21 and 23 of the '540
Patent to be invalid ("Issue Five"); and (6)
dismissing all claims against the "Mesh Lounge"
style products ("Issue Six"). ECF No. 118 at 29-30.
On June 23, 2017, Plaintiffs Swimways Corporation and Kelsyus
LLC ("Plaintiffs") filed a response in opposition
to Defendant's Motion ("Response"). ECF No.
163. On June 27, 2017, Defendant filed a rebuttal memorandum.
ECF No. 217.
29, 2017, the parties appeared for a final pretrial
conference. See ECF No. 229. During the conference, the Court
advised the parties that it had decided every issue raised in
Defendant's Motion except for Issue Five. Accordingly,
the Court heard argument from both parties only on that issue
and took Defendant's Motion with respect to same under
moves for summary judgment pursuant to Rule 56(c) of the
Federal Rules of Civil Procedure ("Rule 56(c)").
Rule 56(c) provides that granting summary judgment is
appropriate where the record demonstrates "there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The moving party bears the burden of
informing the court of "the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrates
the absence of a genuine material fact." Celotex
Corp. v. Catrett. 477 U.S. 317, 323 (1986). "The
party opposing the motion must point to an evidentiary
conflict created on the record; mere denials or conclusory
statements are insufficient." SRI Int'l v.
Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.
reviewing a summary judgment motion, a court "must draw
all justifiable inferences in favor of the nonmoving
party." United States v. Carolina Transformer
Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing
Anderson v. Liberty. Inc., 477 U.S. 242, 255
(1986)). However, a mere scintilla of evidence will not
preclude summary judgment. Anderson. 477 U.S. at 251
(citation omitted). "Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp..
475 U.S. 574, 587 (1986). In turn, an issue is genuine if
there is sufficient evidence for a reasonable trier of fact
to decide in favor of the nonmoving party. Anderson,
477 U.S. at 248. The court "does not assess the
credibility or weigh the evidence, but simply determines
whether there is a genuine factual issue for trial."
House v. Bell, 547 U.S. 518, 559-60 (2006).
respect to patent litigation, the Federal Circuit has
explained that "[s]ummary judgment of non-infringement
requires a two-step analytical approach." Pitney
Bowes, Inc. v. Hewlett-Packard Co.. 182 F.3d 1298, 1304
(Fed. Cir. 1999). First, the patent claims must be construed
to determine their scope, which is a question of law.
Id. (citing Carroll Touch, Inc. v. Electro
Mechanical Svs.. Inc.. 15 F.3d 1573, 1576 (Fed. Cir.
1993). Second, "a determination must be made as to
whether the properly construed claims read on the accused
device, " which is a question of fact. Id.
"Because . . . infringement is itself a fact issue, a
district court must approach a motion for summary judgment of
infringement or non-infringement with a care proportioned to
the likelihood of its being inappropriate." SRI
Int'l, 775 F.2d at 1116.
stated from the bench on June 29, 2017, the Court DENIED
Defendant's Amended Motion for Summary Judgment with
respect to the following issues:
asks the Court to dismiss any claims concerning sales by
third-party Greyland in this case. ECF No. 118 at 14.
Defendant argues that Plaintiffs' expert improperly
included "direct import sales" by Greyland in her
damages report because Defendant did not make those sales nor
did it profit from those sales. Id. at 12. Defendant
further argues that Plaintiffs did not bring a claim against
Greyland and that it should therefore be barred from doing so
"through any indirect means." Id. The
Court finds that there is a dispute of material fact with
respect to the connection, if any, between Defendant and
Greyland's sales of accused products.
Therefore, whether any of Greyland's sales are