Professional Documents
Culture Documents
Sundesa v. JH Studios - Complaint
Sundesa v. JH Studios - Complaint
Sundesa v. JH Studios - Complaint
Plaintiff,
Defendant.
____________________________________/
Plaintiff Sundesa, LLC (“Sundesa”), by and through its undersigned counsel, Akerman
LLP and Maschoff Brennan, hereby complains against defendant JH Studios, Inc. (“JH
THE PARTIES
1. Sundesa is a limited liability company duly organized and existing under the
laws of the State of Utah, with its principal place of business located at 250 South 850 East,
laws of the State of Florida with its principal place of business located at 1819 Rudder Drive,
1
49530831;1
Case 8:19-cv-01809 Document 1 Filed 07/24/19 Page 2 of 8 PageID 2
3. This is a civil action for patent infringement arising under the patent laws of the
4. This Court has original jurisdiction over the subject matter of this action under
5. This Court has personal jurisdiction over JH Studios because JH Studios (i)
resides in this judicial District and (ii) is incorporated in the State of Florida.
7. Venue is proper in this judicial district under at least 28 U.S.C. §§ 1391 and
1400.
FACTUAL BACKGROUND
utility and design patents, including United States Utility Patent No. 6,379,032 (the “’032
Patent”) and United States Design Patent No. D510,235 (the “’235 Design Patent”)
9. Sundesa is an exclusive licensee of the Asserted Patents and has been granted
all rights thereunder, including the right and standing to enforce the Asserted Patents.
promotional items, including fitness products and accessories. In particular, JH Studios sells
and offers for sale, inter alia, shaker cups with a whisk type ball that allow users to perform
2
49530831;1
Case 8:19-cv-01809 Document 1 Filed 07/24/19 Page 3 of 8 PageID 3
instruct(s) its customers to use the Accused Product to mix ingredients in such a way as to
14. The design of the Accused Product is substantially the same as the design that
15. Furthermore, the design of the Accused Product is so similar to the design that
is the subject matter of the ’235 Design Patent that customers are likely to be deceived and
persuaded to buy the Accused Products thinking they are actually buying products protected
16. On September 29, 2014, Sundesa’s attorneys sent JH Studios a letter informing
17. Along with this letter, Sundesa mailed JH Studios courtesy copies of the
Asserted Patents.
18. JH Studios has had pre-suit knowledge of the Asserted Patents since at least
19. Since learning of the Asserted Patents, at least since receiving Sundesa’s letter,
20. By this reference, Sundesa realleges and incorporates the foregoing paragraphs
3
49530831;1
Case 8:19-cv-01809 Document 1 Filed 07/24/19 Page 4 of 8 PageID 4
21. JH Studios has directly infringed and continues to directly infringe the ’032
Patent under 35 U.S.C. § 271(a) by selling, and offering for sale within the United States the
22. Since at least approximately September 29, 2014, JH Studios has had, and
continues to have, the specific intent to induce its customers or users of its products to infringe
the ’032 Patent. For example, JH Studios instructs its customers or users of the Accused
Product to use it to mix ingredients according to the claimed methods of the ’032 Patent.
23. JH Studios’ customers or users of the Accused Product do, in fact, infringe the
’032 Patent.
24. Since at least approximately September 29, 2014, JH Studios has known, or
should have known, that its customers, or users of its products, infringe the ’032 Patent.
25. The Accused Product is especially made to be used, and is in fact used, by
customers, or users, of the Accused Product, in a way that infringes the ’032 Patent.
26. JH Studios has indirectly infringed and continues to indirectly infringe the ’032
Patent under 35 U.S.C. §§ 271(b) and (c) by actively inducing infringement of, and
27. Despite its knowledge of the ’032 Patent, JH Studios has continued to infringe
28. The conduct of JH Studios as set forth hereinabove gives rise to a cause of
action for infringement of the ’032 Patent, pursuant to at least 35 U.S.C. §§ 271 and 281.
4
49530831;1
Case 8:19-cv-01809 Document 1 Filed 07/24/19 Page 5 of 8 PageID 5
29. JH Studios has manufactured, used, imported, sold, and offered for sale the
Accused Product despite an objectively high likelihood that its actions constitute infringement
30. JH Studios’ manufacture, use, importation, sale, and offer for sale of the
31. JH Studios’ acts of infringement have caused damage to Sundesa, and Sundesa
amount subject to proof at trial. JH Studios’ infringement of Sundesa’s rights under the ’032
Patent will continue to damage Sundesa’s business causing irreparable harm for which there is
32. By reason of the foregoing, Sundesa is entitled to monetary and injunctive relief
against JH Studios, pursuant to 35 U.S.C. §§ 283-85, as more fully set forth herein below.
33. By this reference, Sundesa realleges and incorporates the foregoing paragraphs
34. JH Studios has infringed, and continues to infringe the ’235 Design Patent by
offering to sell, selling, or importing, in this District, and elsewhere in the United States, the
Accused Product, the design of which is substantially the same as the ornamental design of the
5
49530831;1
Case 8:19-cv-01809 Document 1 Filed 07/24/19 Page 6 of 8 PageID 6
36. Sundesa has sustained damages and will continue to sustain damages as a result
38. JH Studios’ infringement of Sundesa’s rights under the ’235 Design Patent will
continue to damage Sundesa’s business, causing irreparable harm, for which there is no
39. JH Studios has willfully infringed the ’235 Design Patent, entitling Sundesa to
increased damages under 35 U.S.C. § 284 and to attorneys’ fees and costs incurred in
Studios for JH Studios’ total profits from its sale of the Accused Product under 35 U.S.C. §
289.
B. A judgment finding JH Studios liable for infringement of the claims of the ’235
Design Patent;
Studios, its agents, servants, and any and all parties acting in concert with any of them, from
6
49530831;1
Case 8:19-cv-01809 Document 1 Filed 07/24/19 Page 7 of 8 PageID 7
directly or indirectly infringing in any manner any of the claims of the Asserted Patents,
infringement of the ’235 Design Patent, in an amount to be proven at trial, or in the alternative,
G. A declaration that this is an exceptional case and that Sundesa be awarded its
L. For such other and further relief as the Court deems just and equitable.
Sundesa demands trial by jury on all claims and issues so triable as a matter of right.
7
49530831;1
Case 8:19-cv-01809 Document 1 Filed 07/24/19 Page 8 of 8 PageID 8
Leslie Schultz-Kin
Florida Bar No.: 230080
AKERMAN LLP
401 E. Jackson Street, Suite 1700
Tampa, FL 33602
Telephone: (813) 223-7333
Fax: (813) 223-2837
Leslie.schultz-kin@akerman.com
Larry R. Laycock
(Special Admission Attorney Certification
Forthcoming)
Utah State Bar No. 4868
Trevor L. Clark
(Special Admission Attorney Certification
Forthcoming)
Utah State Bar No. 16798
MASCHOFF BRENNAN
111 South Main Street, Suite 600
Salt Lake City, Utah 84111
Telephone: (435) 252-1360
Facsimile: (435) 252-1361
llaycock@mabr.com
tclark@mabr.com
8
49530831;1
Case 8:19-cv-01809 Document 1-1 Filed 07/24/19 Page 1 of 2 PageID 9
JS 44 (Rev. 02/19) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS Sundesa, LLC, a Utah limited liability company DEFENDANTS JH Studios, Inc., a Florida corporation
(b) County of Residence of First Listed Plaintiff Utah County, UT County of Residence of First Listed Defendant Hillsborough County, FL
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 8:19-cv-01809 Document 1-2 Filed 07/24/19 Page 1 of 2 PageID 11
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: James M. Miller, Esq.
Akerman LLP
98 SE 7th Street, Suite 1100
Miami, FL 33131
305-374-5600
james.miller@akerman.com
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 8:19-cv-01809 Document 1-2 Filed 07/24/19 Page 2 of 2 PageID 12
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any) JH Studios, Inc.
was received by me on (date) .
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
Date:
Server’s signature
Server’s address