sundesa v. iq formulations

8/13/2019 Sundesa v. IQ Formulations

1/11

23456789

1 0

1 23

1 45

1 61 78

1 92 02 12 22 32 42 52 62 72 8

Taylor J. Wright (California State Bar No. 288609)E-mail: [email protected] R. Laycock (Utah State Bar No. 4868; Pro Hoc Vice ForthcomigE-mail: [email protected] B. Beckstrom (Utah State Bar No. 14127; roHoc Vice Forth o rnin.g)E-mail: abeckstrom@m abr.comMASCHOFF BRENNAN20 Pacifica, Suite 11 30 01 South Main St. Suie 6Irvine, California 92618 alt Lake City, Utaci 84111Telephone: 949) 202-1900 elephone: 435) 252-160Facsimile: 949) 453-1104 acsimile: 435) 252-1 61Attorneys for Plaintiff Sundesa, LLC

UNITED STATES DISTRIC T C OU RTC ENTRAL D ISTRIC T OF C AL IFORNIACivil Action No.____________SAC VI 3-01983 AG ANx)

COM PLA INT FOR PATENTI N FR I N G E M E N TV .IQ Fo rmulations, LL C., a Florida LimitedLiability Com pany, d /b/a MetabolicNutrition, Inc., [Demand for Jury Trial]

Defendant,

rn

Sundesa, LL C, a Utah L imited LiabilityCompany,Plaintiff,

COMPLA INT FOR PATENT INFRINGEME NT CONFO


2/11

laintiff Sundesa, LLC ( Sundesa ) complains against Defendant IQ Formulations,2 LLC., a Florida Limited Liability Company, d/b/a Metabolic Nutrition, Inc. ( Metabolic3 Nutrition ) for the causes of action alleged as follows:4 HE PARTIESundesa is a limited liability company duly organized and existing under the6 laws of the State of Utah, with its principal place of business located at 284 South 7007 West, Pleasant Grove, Utah 84062.8 undesa alleges Metabolic Nutrition is a limited liability company organized9 and existing under the laws of the State of Florida with its principal place of business10 located at 523 Sawgrass Corporate Pkwy., Sunrise, Florida, 3332511 URISDICTION AND VENUE1 2 his is a civil action for patent infringement arising under the patent laws of13 the United States 35 U S C 1 etseq. including 35 U S C 2711 4 his Court has original jurisdiction over the subject matter of this action15 under at least 28 U.S.C. 1331 and 1338(a).1 6 his Court has personal jurisdiction over Metabolic Nutrition because17 Metabolic Nutrition has purposely availed itself of the privileges and benefits of the laws18 of the State of California.1 9 etabolic Nutrition does, and has done, substantial business in this judicial20 District, including: (i) regularly doing business or soliciting business by virtue of21 Metabolic Nutritions nationwide sales and offers to sell through interactive and22 commercial website(s) which direct(s) Metabolic Nutritions services and products to23 California residents; and (ii) engaging in other persistent courses of conduct, and/or24 deriving substantial revenue from products and/or services provided to persons in this25 District and State2 6 his Courts exercise of personal jurisdiction over Metabolic Nutrition is27 consistent with the Constitutions of the United States and the State of California.28

COMPLAINT FOR PATENT INFRINGEMENT


3/11

enue is proper in this judicial district under at least 28 U S C 1391 and2 400

CTU L B CKGROUND4 undesas technological innovations are protected by, inter alia, a portfolioof utility and design patents, including United States Design Patent No. D510,235 (the6 235 Design Patent ).7 0. Sundesa has marked all products embodying the claims of the 235 Design8 Patent since introduction to the market.9 1. Sundesa is an exclusive licensee of the 235 Design Patent and has been10 granted all rights thereunder, including the right and standing to enforce the 235 Design11 Patent.12 2. Metabolic Nutrition is in the business of selling nutritional supplements and13 accessories. In particular, Metabolic Nutrition sells and offers for sale, inter alia,14 Metabolic Nutrition Shaker Cups that embody the claimed design of the 235 Design5 Patent (the Accused Products ).

16 3. The Accused Products have no substantial non-infringing uses.17 4. The design of the Accused Products are substantially the same as the design18 that is the subject matter of the 235 Design Patent.19 5. Furthermore, the design of the Accused Products is so similar to the design20 that is the subject matter of the 235 Design Patent that customers are likely to be21 deceived and persuaded to buy the Accused Products thinking they are actually buying22 products protected by the 235 Design Patent.23 6. On information and belief, Metabolic Nutrition had pre-suit knowledge of24 the 235 Design Patent at least because of Sundesas marking of its products embodying25 the claims of the 235 Design Patent. Commensurate with this filing, Sundesa mailed26 Metabolic Nutrition a courtesy copy of this Complaint and the 235 Design Patent. Thus,27 Metabolic Nutrition has had knowledge of the 235 Design Patent at least since filing of28 this Complaint.

2COMPLAINT FOR PATENT INFRINGEMENT


4/11

IRST CLAIM FOR RELIEF2 Infringement of the 235 Design Patent)3 7. By this reference Sundesa realleges and incorporates the foregoing4 paragraphs as though fully set forth herein.5 8. Metabolic Nutrition has infringed, and continues to infringe the 235 Design6 Patent by offering to sell, selling, or importing, in this District, and elsewhere in the7 United States, the Accused Products, the design of which is substantially the same as the8 ornamental design of the 235 Design Patent.9 9. Metabolic Nutrition s actions constitute infringement of the 235 Design10 Patent in violation of 35 U.S.C. 271.

0. Sundesa has sustained damages and will continue to sustain damages as a12 result of Metabolic Nutrition s aforementioned acts of infringement.13 1. Sundesa is entitled to recover damages sustained as a result of Metabolic14 Nutrition s wrongful acts in an amount to be proven at trial.1 5 2. Metabolic Nutrition s infringement of Sundesa s rights under the 23516 Design Patent will continue to damage Sundesa s business, causing irreparable harm, for17 which there is no adequate remedy at law, unless Metabolic Nutrition is enjoined by this18 Court.1 9 3. Metabolic Nutrition has willfully infringed the 235 Design Patent, entitling20 Sundesa to increased damages under 35 U.S.C. 284 and to attorneys fees and costs21 incurred in prosecuting this action under 35 U.S.C. 285.2 2 4. Alternatively, Plaintiff is entitled to recover Metabolic Nutrition s total23 profits from its sale of the Accused Products under 35 U.S.C. 289.2 425 undesa prays for judgment as follows:2 6 . judgment finding Metabolic Nutrition liable for infringement of the claims27 of the 235 Design Patent;2 8

COMPLAINT FOR PATENT INFRINGEMENT


5/11

. Orders of this Court temporarily, preliminarily, and permanently enjoining2 Metabolic Nutrition, its agents, servants, and any and all parties acting in concert with3 any of them, from directly or indirectly infringing in any manner any of the claims of4 the 235Design Patent, pursuant to at least 35 U.S.C. 283;n award of damages adequate to compensate Sundesa for Metabolic6 Nutrition s infringement of the 235 Design Patent in an amount to be proven at trial or7 in the alternative, an award of Metabolic Nutrition s total profits under 35 U.S.C. 289;8 n award of treble Sundesa s damages, pursuant to at least 35 U.S.C. 284;9 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 n 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;1 3 n award of Sundesa s attorney fees, pursuant to all applicable state14 statutory and common law.1 5 rejudgment interest, pursuant to at least 35 U.S.C. 284;1 6 ost-judgment interest, pursuant to at least 28 U.S.C. 1961(a); and1 7 or such other and further relief as the Court deems just and equitable.1 8 EM ND FOR JURY TRI L1 9 undesa demands trial by jury on all claims and issues so triable.20212223245

262728

DATED: December 20, 2013 Larry R. LaycockTaylor J. WrightAdam B. BeckstromMA S CHO F F B R E N N A NBy:

TaylorJ.Wrg tAttorneys for PlaintiffSundesa LLC

4COMPLAINT FOR PATENT INFRINGEMENT


6/11

NITED STATES DISTRICT COU RTCENTRAL DISTRICT O F CALIFORNIA

SACV13-01983 AG ANx)

Pursuant to General Order 05-07 of the United States District Court for the Central District ofCalifornia, the Magistrate Judge has been designated to hear discovery related motions.All discovery related motions should be noticed on the calendar of the Magistrate Judge.

Clerk U . S. District Court

December 20 2013 y . BarrDate eputy Clerk

NOTICE TO COUNSELA copy of this notice must be served with the summ ons and com plaint on all defendan ts f a remova l action isfiled, a co py of this notice must be serv ed on a llplaintffs).Subsequent documents m ust be filed at the following location

J Western Division Southern Division J Eastern Division312 N. Spring Street G-8 11 West Fourth St. Ste 1053 470 Tw elfth Street Room 134Los Angeles CA 90012 anta Ana CA 92701 iverside CA 92501


7/11

A0 440 Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT CO URTfor the

Ce ntral Distr ict of CaliforniaSundesa LLC, a Utah Limited Liability Company,

PIaini/f s)V.

IQ Fo rmulations, LL C., a Florida Lim ited LiabilityCom pany, d/b/a Metabolic Nutri t ion, Inc.,Civil Action No, AC VI 3-01983 AG ANx)

Defendant(s)

SUMMONS IN A CIVIL ACTIONTo: (Defendant s name and adds es)

A lawsuit has been tiled against you.Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if you

are the U ni ted S ta tes o r a U ni ted S ta tes agency , o r an o f f ice r o r em ployee o f the Uni ted S ta tes 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 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff s attorney,whose name and address are: Taylor U. WrightLarry R. LaycockAdam B. Beckstrom20 Pacifica, Suite 1130Irvine, CA 92618949) 202-1900

I f 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,A

Date: DEC2 o 2 0 i 3

COPY TOCON ORM


8/11

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)Civi l Act ion No.

PROOF OF SERVI EThis section should not be filed with the court unless required by Fed. R. Civ. P. 4 1))

This summons for name of individual and title, [any)was received by me on date)I personally served the summons on the individual at place)

n date) orI 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

11 I served the summons on name of individual)designated by law to accept service of process on behalf of name of organization)on date)

who isor

J I returned the summons unexecuted becauseOther spec fy):

or

My fees are or travel and or services, for a total of .00I declare under penalty of perjury that this information is true.

Date:Server s signature

Printed name and title

Server s address

Additional information regarding attempted service, etc:


9/11

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEET

I. a) PLAINTIFFS ( Check box if you are representing yourself DEFENDANTS Check box if you are representing yourselfSunde5a, LLC, a Utah Limited Liability Company IQ Formulations, LLC., a Florida limited liability company, dlb/a Metabolic Nutrition,

b) County of Residence of First Listed Plaintiff tah County, UT County of Residence of First Listed DefendantEXCEPT IN U .S . PLAINTIFF CASES) IN U .S . PLAINTIFF CASES ONLY)c) Attorneys Firm Nam e, Address and Telephone Number) If you are Attorneys F i rm Name. Addrs and Telephone Number) If you are

representing yourself, provide the same information, representing yourself, provide the sense information.Maschoff Brennan aschoff Brennan201 South Main Street, Suite 600 0 Pacifica, Suite 1130Salt Lake City, UT 84111 rvine, CA 92618(435)252-1360 949)202-1900II. BASIS OF JURISDICTION (Place an X in one box only.) III. CITIZENSHIP OF PRINCIPAL PARTIES-For Diversity Cases Only(Place an X in one box for plaintiff and one for defendant)

1. U.S. Government . Federal Question (U.S. PTF EF TE EFCitizen of This State i ncorporated or Principal Place I 4Plaintiff overnment Not a Party) of Businessess in this StateCitizen of Another State l 2 l 2 ncorporated and Principal Place I 5 I .of Business in Another StateE l 2. U.S. Government l4 Diversity (Indicate Citizenship Citizen or Subject of a 3 oreign NationDefendant f Parties in Item lii) Foreign CountryIV UK ilN (Place an X in one ox o n l y . .Multi-E l i 1. Original 2. Removed From r , 3. Remanded from -- 4. Reinstated or 5 Transferred rronr Another ri DistrictProceeding El State Court L_l Appellate Court L _J Reopened El Oitrict specify) LitigationV. REQUESTED IN COMPLAINT: JURY DEMAND: j Yes El No (Check YeS only ifdemndedincompain.) -CLASS ACTION under F.R.Cv.P. 23: DYes o MONEY DEMANDED IN COMPLAINT: subject to proofVt. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.)35 U.S.C. Section 271 & 35 U.S.C. Section 284: Patent infringement

VII. NATURE OF SUIT Place an X in one box only).m mL I 375 False Claims Act

400 StateReapportionment410 Antitrust

El 430 Banks and Bankingo 450 Commerce/ICC460 Deportation

El 70 Racketeer lnflu-enced Corrupt Org.480 Consumer Credit

O 490 Csble/SaLTVEl 850 Securities/Cornchangeodities/ErrchangeL I 690 Other statutoryActionsLI 91 Agricultural ActsL I 893 EnvironmentalMattersEj 895 Freedom of Info.ActL I 896 Arbitration

899 Admin. ProceduresEl Act/Review of Appeal ofAgency Decision i 950Constitutionality oState Statutes

110 insuranceE l 120 Marine0 130 Miller Act140 NegotiableL I Instrument

5Q RecoveryEnforcement ofJudgment

LI 151 Medicare Act52 Recovery ofL I Defaulted StudentLoan ( E x c l . Vat,)

153 Recover o fL I OverpaymentVet. Benefits160 StockholdersL I uits

L I 1 9 0 OtherContractontractr1 195 ContractLJ Product LiabilityL I 196 Franchise

240 Torts to LandEl 45 lan ProductLiabilityEl 90 All Other RealProperty

462 NaturalizationApplication465 OtherL I immigration Actions

Habeas Corpus463 Alien Detaineeo 510 Motions to VacateSentenceEl $30 General535 Death Penalty

fl 820 Copyrights)J 830 PatentL I 840 TrademarkTORTSPRS ON A CPROPE RVO R 1 S..PERS9FLiN,ftRY... 861 HIA(1395f1)El S62 Black Lung (923)L I 863 DIWC/DIWW (405 (g))L I 864 SSID Title X V Io 65 RSI (405(g))

G 370 Other FraudEl 371 Truth in Lending

380 Other Personal0Property Damage385 Property DamageProduct Liability

Otjer,-

315 Airplane-, Product Liability20 Assault, Libel

Fed EmployersEl iability0 Marine

L I ?rrne ProductEl 5 0 Motor Vehicle355 Motor VehicleProduct Liability

3 6 0 Other PersonalL I njuryrr 62 Personal Injury-II ed Malpreticei 65 Personal Injury.Product Liability

367 Health Carer" PharmaceuticalPersonal InjuryProduct Liability360 AsbestosL I e tonal Injury

L.,.EQdiis).l,j.ility

[] 540 Mandamus/Other550 C i v i l Rights555 Prison Condition560 C i v i l DetaineeoConditions ofConfinement FDER1(LTAXSUIW ]

422 Appeal 28U S C 158423 Withdrawal 28U S C 157

870 Taxes ( U . S . Plaintiff or- Defendant)r1 871 IRS-Third Party 26 U S Ci_ .J 609

-.FORFEIT JREiENALD625 Drug Related0Seizure o f Property 21U S C 8 8 1L I 690 OtherVI RIGHT

C]440 Other C i v i l RightsL I 4 4 1 Voting442 Employment

443 Housin9/Accomoclations45 American withDisabilitiesEmployment446 American withDisabilities-Other

El 448 Education

u T ) i t T710 Fair Labor StandardsActo 720 Labor/Mgmt.Relations

L I 740 Railway Labor Acto751 Family and MedicalLeave Act790 Other LaborLitigationo791 Employee Ret. Inc.- Security Act

.1(tTi2 1 0 LandCondemnationL I 220 ForeclosureL I 230 Rent LeaseeCtrne.nt

FOR OFFICE USE ONLY: aseNumber: AM3O19834C V - 7 1 ( 1 1 1 1 3 ) I V I L C O V E R S H E E T c99TOCONFORM


10/11

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEET

VIII VENUE: Your answers to the questions below will determine the division of the Court to which this case will most likely be initially assigned. This initial assignmentis subject to change, in accordance with the Courts General Orders, upon review by the Court of your Complaint or Notice of Removal.

Question A: Was this case removed from -state court?

Yes No Los Angeles WsternIf no, go to Question B. If yes, check the Ventura, Santa Barbara, or San Luis Obispobox to the right that applies, enter thecorresponding division in responseto OrangeQuestion D, below, and skip to Section IX.

Riverside or San Bernardino Eastern

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

Yes No

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

Ventura, Santa Barbara, or San LuisObispo

Ventura, Santa Barbara, or San LuisObispo Western

Orange Orange SouthernRiverside or San Bernardino Riverside or San Bernardino EasternOther Other Western

Indicate the location in which a ii --L ?Jmajority of plaintiffs reside: L_l L_JIndicate the location in which a xmajority of defendants reside:Indicate the location in which a El X l l Elmajority of claims arose:

C.1. Is either of the following true? If so, check the one that applies: C.2. Is either of the following true? If so, check the one that applies:2 or more answers in Column C 2 or more answers in Column Donly 1 answer in Column C and no answers in Column D only answer in Column D and no answers in Column C

Your case will initially be assigned to the Your case will initially be assigned to theSOUTHERN DIVISION EASTERN DIVISION

Enter Southern in response to Question D, below. Enter Eastern in response to Question D, below.If none applies, answer question C2 to the right. If none applies, go to the box below.

Your case will initially be assigned to theWESTERN DIVISION

Enter Western in response to Question D below.

Enter the initial division determined by Question A, B, orC above: - OUTHERN

CV-71 11/13) IVIL OVER SHEET age of3


11/11

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEET

IX a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed remanded or closed? O SIf 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? O X YESIf yes, list case number(s): ases 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) . 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 law and fact; orC. For other reasons would entail substantial duplication of labor if heard by different judges; orD. Involve the same patent, trademark or copyright -nd one of the factors identified above in a, b or c also is present.

X. SIGNATURE OF A TTORNEYOR SELF-REPRESENTED LITIGANT): DATE /

Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover 5ht and the informKion 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 the 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 relating to Social Security Cases:Nature of Suit Code Abbreviation ubstantive Statement of Cause of Action

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,861 IA nclude claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.42 U.S.C. 1 935FF b))862 L ll claims for Black Lung benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C.923)863 IWC ll claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plusall claims filed for childs insurance benefits based on disability. (42 U.S.C. 405 (g))

863 IWW ll claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, asamended. 42 U.S.C. 405 g))

864 SID ll claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, asamended.865 Sl ll claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.42 U.S.C. 405 g))

CV-71 11113) IVIL OVER SHEET age 3of3

sundesa v. iq formulations

Documents