Sundesa v. Chemi-Source - Complaint

8/13/2019 Sundesa v. Chemi-Source - Complaint

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Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 1 of 9 Page ID #:1

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llQ 0< cwr- Taylor J. \Vright (California State Bar No. 288609) ~ f ; : : : c:.u

a ~ I e : ~ a ~ ~ ~ ~ ~ ~ @ ; ; h a ~ ~ ~ ~ B a r No. 4868; Pro ac Vice Forthcom n g ) ~ ~ ~ : ~n-ma l. [email protected] '1f:J::1 NAdam B Beckstrom (Utah State Bar No. 14127; Pro ac Vice Forth o m ~ g } :: ; ; ~ ~ ; ; , ; ; ; ~ ~ : @ m a b r . c o : 201 Soutl1 Main St Sut'te C ~Irvine, California 92618 Salt Lake City, Utah 84 : ' - ~Telephone: (949) 202-1900 Telephone: (435) 252-l 60Facs1mile: (949) 453-1104 Facsimile: (435) 252-1361Attorneys for Plaintiff Sundesa, LLC

UNITED STATES DISTRICT COURTCENTRAL DISTRJCT OF CALIFORNIA

j . '

11 Sundesa, LLC, a Utah Limited LiabilityCompany, Civil Action No. S A C V 1 3 ~ 1 9 8 1 JLS DFMx)12131415167

189

202122232425 '262728

Plaintiff,V.

Chemi-Source, Inc., a CaliforniaCorporation, and Metabolic ResponseModifiers, Inc., a California Corporation,Defendants.

COMPL INT FOR PATENTINFRINGEMENT

[Demand for Jury Trial]

COMPLAINT FOR PATENT INFRJNGEMENT


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1 Plaintiff Sundesa, LLC ( Sundesa ) complains against Chemi-Source, Inc. and2 Metabolic Response Modifiers, Inc. (collectively Defendants ) for the causes of action3 alleged as follows:

THE P RTIES5 1 Sundesa is a limited liability company duly organized and existing under the6 laws of the State ofUtah, with its principal place of business located at 284 South 7007 West, Pleasant Grove, Utah 84062.8 2 Sundesa alleges Chemi-Source, Inc. is a corporation organized and existing9 under the laws of the State ofCalifornia with its principal place of business located at 510 Hubble, Irvine, California 92618.11 3. Sundesa alleges Metabolic Response Modifiers, Inc. is a corporation12 organized and existing under the laws of the State of California with its principal place of13 business located at 2633 W Pacific Coast Highway B, Newport Beach, California 92663.14 JURISDICTION ND VENUE15 4. This is a civil action for patent infringement arising under the patent laws of16 the United States 35 U.S.C. et seq. including 35 U.S.C. 271.17 5 This Court has original jurisdiction over the subject matter of this action18 under at least 28 U.S.C. 1331 and 1338(a).19 6. This Court has personal jurisdiction over Defendants because Defendants20 have purposely availed themselves of the privileges and benefits of the laws of the State21 ofCalifornia.22 7 Defendants do, and have done, substantial business in this judicial District,23 including: (i) regularly doing business or soliciting business by virtue ofDefendants'24 nationwide sales and offers to sell through interactive and commercial website( s) which25 direct(s) Defendants' services and products to California residents; and (ii) engaging in26 other persistent courses of conduct, and/or deriving substantial revenue from products27 and/or services provided to persons in this District and State.28

1COMPLAINT OR PATENT INFRINGEMENT


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1 8 This Court's exercise o personal jurisdiction over Defendants is consistent2 with the Constitutions o the United States and the State o California.3 9 Venue is proper in this judicial district under at least 28 U.S.C. 1391 and4 1400.5 F CTU LB CKGROUND6 10 Sundesa' s technological innovations are protected by, inter alia a portfolio7 o utility and design patents, including United States Design Patent No. D510,235 (the8 '235 Design Patent ).9 11 Sundesa has marked all products embodying the claims o the '23 5 Design10 Patent since introduction to the market.11 12 Sundesa is an exclusive licensee o the '235 Design Patent and has been12 granted all rights thereunder, including the right and standing to enforce the '235 Design13 Patent.14 13 Defendants are in the business o selling nutritional supplements and15 accessories. In particular, Defendants sell and offer for sale, inter alia MRM Shaker16 Cups that embody the claimed design o the '235 Design Patent (the Accused171819

Products ).1415

The Accused Products have no substantial non-infringing uses.The design o the Accused Products are substantially the same as the design

20 that is the subject matter o the '235 Design Patent.21 16 Furthermore, the design o the Accused Products is so similar to the design22 that is the subject matter o the '235 Design Patent that customers are likely to be23 deceived and persuaded to buy the Accused Products thinking they are actually buying24 products protected by the '23 5 Design Patent.25 17 On information and belief, Defendants had pre-suit knowledge o the '23 526 Design Patent at least because ofSundesa's marking o its products embodying the27 claims o the '235 Design Patent. Commensurate with this filing, Sundesa mailed28

COMPLAINT FOR PATENT INFRINGEMENT


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1 B. Orders of this Court temporarily, preliminarily, and permanently enjoining2 Defendants, their agents, servants, and any and all parties acting in concert with any of3 them, from directly or indirectly infringing in any manner any of the claims ofthe 2354 Design Patent, pursuant to at least 35 U.S.C. 283;5 c An award of damages adequate to compensate Sundes a for Defendants6 infringement of the 23 5 Design Patent, in an amount to be proven at trial, or in the7 alternative, an award of Defendants total profits under 35 U.S.C. 289;8 D. An award of treble Sundesa s damages, pursuant to at least 35 U.S.C. 284;9 E. A declaration that this is an exceptional case and that Sundesa be awarded its10 attorney fees and expenses, pursuant to at least 35 U.S.C. 285;11 F An award of Sundesa s costs in bringing this action, pursuant to all12 applicable state statutory and common law, including at least 35 U.S.C. 284;13 G An award ofSundesa s attorney fees, pursuant to all applicable state14 statutory and common law.15 H. Prejudgment interest, pursuant to at least 35 U.S.C. 284;16 I Post-judgment interest, pursuant to at least 28 U.S.C. 1961(a); and17 J For such other and further relief as the Court deems just and equitable.18 DEM ND FOR JURY TRI L19 Sundesa demands trial by jury on all claims and issues so triable.2021 DATED: December 20,201322232425262728

Larry R. LaycockTaylor J WrightAdam B. BeckstromMASCHOFF BRENNAN

y ~ < ~Attorneys for PlaintiffSundesa, LLC

4COMPLAINT FOR PATENT INFRINGEMENT


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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEET

f. (a) PLAINTIFFS {Check box if you are representing yourself 0 ) DEFENDANTS (Check box if you are representing yourself 0 )S u n d e ~ a LlC. aUtah l imited liability Company ChemiSource, Inc., a California Corpo ration. h nd Metabolic Respon$e Modifier s, inc.,a California Corporation

(b) County of Residence of First Listed Plainti ff Utah County, UT County of Residence of First Listed DefendantEXCEPT IN U.S. PLAINDFF CASES) IN U S PLAINTIFF CASES ONLY)- - - - - - - - - - - - - - - - - - - - - - - - - - - , - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -c) Attorneys {Firm Nome, Address and Telephone Number If you are Attorneys Firm Name, Address and Telephone Number If you arerepresenting yourself, provide the same information. representing yourself, provide the same information.Maschoff Brennan & Maschoff Brennan201 South Main Street, Suite 600 20 Pacifica, Suite 1130Salt Lake City, UT 84111 Irvine, CA 92618(435) 2521360 (949) 2021900II. BASIS OF JURISDICTION Place an X n one box only.)0 1. U.S. GovernmentPlaintiff0 2. U.S. GovernmentDefendant

[EJ3. Federal Question {U.S.Government Not a Party)0 4. Diversity (Indicate Citizenship

of Parties in Item Ill)IV. ORIGIN (Place an X n one box only.)[E) i Original O 2. Removed from O 3. Remanded fromProceeding State Court Appellate Court

I ll. CITIZENSHIP OF PRINCIPAL PARTIES-For Diversity Cases Only{Place an X In one box for pla intiff and one for defendant)PTF DEF PTF0 1 0 1 Incorporated or Principal Place 0 4of Business in this Stateitizen ofThis StateCitizen of Another State 0 2 0 Incorporated ar>d Principal Place 0

of Business In Another StateCitizen r Subject of aForeign Country 3 Foreign Nation

4 R d 6. Multi0 . emstate or O 5 Transfened from Another 0 DistrictReopened District Specify) LitigationV. REQUESTED IN COMPlAINT: JURY DEMAND: [E) Yes 0 No (Check Yes only if demanded in complaint.)CLASS ACTION under F.R.Cv.P. 23: 0 Yes ~ o [E) MONEY DEMANDED IN COMPLAINT: S subject to proof

DEF0 40 5

VL CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite juris dictiona l statutes unless diversity.)35 U.S.C Section 271 & 35 U.S.C. Section 284; Patent InfringementVII. NATURE OF SUIT (Place an X in one box only).

.

0 375 False Claims Act400 State0 Reapportionment

0 41 0 Antitrust

110 Insurance0 120Marine0 130 Miller ActO 430 Banks and Banking 0 140 NegotiableInstrument0 450 Commerce/ ((Rates/Etc.0 460 Deportation

0 470 Racketeer lnfluenced & Corrupt Org.0 480 Consumer Credit0 490 Cable/Sat TV0 850 Securities/Commodi ies/Exchange0 890 Other StatutoryActions0 891 Agricultural Acts0 893 EJWironmentalMatters0 895 Freedom of Info.Act0 896 Arbitration

0 950 Constitution


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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEETVIII. VENUE: Your answers to the questions below will determine the division of the Court to which this case will most likely be initiall y assigned. This initial assignmenis subject to change, in accordance with the Court's General Orders, upon review by the Court of your Complaint or Notice of Removal.

Question A: Was this case removed fromstate court? 0 Yes No 0 Los AngelesIf no, go to Question B. If yes, check thebox to the right that applies, enter thecorresponding division in response toQuestion D below, and skip to Section IX.

O Ventura, Santa Barbara, or San Luis Obispo Western0 Orange SouthernRiverside or San Bernardino Eastern

Question B: Is the Unit ed States, or one ofits agencies or employees, a party to thisaction?

Yes No

If no, go to Question C. If yes, check thebox to the right that applies, enter thecorresponding division in response toQuestion D below, and skip to Section IX.

Indicate the location in which amajority of plaintiffs reside:Indicate the location in which amajority of defendants reside:

0 Los AngelesO Ventura, Santa Barbara, or San LuisObispo

O OrangeRiverside or San Bernardino

O Other

0 Los AngelesO Ventura, Santa Barbara, or San LuisObispo

0 OrangeRiverside or San Bernardino

0 Other

WesternWesternSouthernEasternWestern

C.1. Is either of the following true? If so check the one that applies:[8 ] 2 or more answers in Colu mn C

C.2. Is either of the following true? If so check the one that applies:

D only 1 answer in Column C and no answers in Column DYour case will initial ly be assigned to theSOUTHERN DIVISION.

D 2 or more answers in Column DD only 1 answer in Column D and no answers in Column CYour case will initial ly be assigned to theEASTERN DIVISION.Enter Sout hern in response to Question D below. Enter Eastern in response to Question D below.

CV-71 {11/13

If none applies, answer question C2 to the right.Your case will initial ly be assigned to the

WESTERN DIVISION.

If none applies, go to the box below.

Enter Western in response to Question D below.

SOUTHERN

CIVIL COVER SHEET Page 2 of


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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEETIX a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed remanded or closed? NO D YES

If yes, list case number(s):IX b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? D NO ~ Y S

If yes, list case number(s): Cases have not been assigned case numbers. A separate Notice of Related Cases will be filed once cases are assigned.Civil cases are deemed related if a previously filed case and the present case:(Check all boxes that apply) A. Arise from the same or closely related transactions, happenings, or events; or

B. Call for determination of the same or substantially related or similar questions of aw and fact; orC. For other reasons would entail substantial duplic ation of labor if heard by different udges; orD. Involve the same patent, trademark or copyright. and one of he factors identified above in a, b or c also is present.

X. SIGNATURE OF ATTORNEYOR SELF-REPRESENTED LITIGANT): DATE:

Notice to Counsel/Parties: The CV-71 JS44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings orother papers as required by law. This form, approved by the Judicial Conference of he United States in September 1974, is required pursuant to Local Rule 3-1 is not filedbut is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet).Key to Statistical codes relati ng to Social Security Cases:

Nature of Suit Code Abbreviation861 HIA

862 BL

863 DIWC

863 DIWW

864 SSID

865 RSI

CV-71 11/13)

Substantive Statement of Cause of ActionAll claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.(42 U.S.C. 1935FF(b))All claims for Black Lung benefits under Title 4, Part B, of he Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C.923)All claims filed by insured workers for disability insurance benefits underTitle 2 of he Social Security Act, as amended; plusall claims filed for child's insurance benefits based on disability. (42 U.S.C. 405 (g))All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Secur ity Act, asamended. 42 U.S.C. 405 (g))All claims for supplemental security income payments based upon disability filed under Title 16 of he Social Security Act, asamended.All claims for retir ement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.(42 u.s.c. 405 (g))

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Sundesa v. Chemi-Source - Complaint

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