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California Expanded Metal Products Co. v. Klein

United States District Court, W.D. Washington, Seattle

December 6, 2019

CALIFORNIA EXPANDED METAL PRODUCTS COMPANY, et al., Plaintiffs,
v.
JAMES A. KLEIN, et al., Defendants.

          [PROPOSED] PRETRIAL ORDER

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE.

         JURISDICTION

         This Court has personal jurisdiction over Plaintiffs California Expanded Metal Products Company ("CEMCO") and Clarkwestern Dietrich Building Systems LLC ("ClarkDietrich") (collectively "Plaintiffs") because Plaintiffs consented to jurisdiction in this judicial district.

         This Court has personal jurisdiction over Defendants James A. Klein, Blazeframe Industries, Ltd., and Safti-Seal, Inc. (collectively "Defendants") because, with respect to BlazeFrame Industries, Ltd., and Safti-Seal, Inc., their principal place of business is located within this judicial district, and with respect to Klein, his domicile is located within this judicial district.

         Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims and counterclaims occurred in this judicial district, and pursuant to 28 U, SC § 1400(b) because Defendants reside in, committed acts of infringement in, and have a regular and established place of business in this judicial district.

         Federal subject matter jurisdiction exists pursuant to 28 U.S.C. §§ 1331 and 1338(a) because this case arises under federal law, namely United States patent law, 35 U.S.C. §§ 100 et seq.

         Supplemental jurisdiction exists over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(a).

         Subject matter jurisdiction is also proper in this Court pursuant to 28 U.S.C. § 1332 because there is complete diversity and the amount in controversy exceeds $75, 000.

         CLAIMS AND DEFENSES

         The Plaintiffs will pursue at trial the following claims:

1. Patent Infringement - 35 U.S.C, § 1, et. seq.
a. Direct Infringement - 35 U.S.C. §271(a) - of Safti-Frame products by SaftiSeal
b. Induced Infringement- 35 U.S.C. § 271(b) - of Safti-Frame and Safti-Strip products by SaftiSeal and James Klein
c. Contributory Infringement - 35 U.S.C. § 271 (c) - of Safti-Frame and Safti-Strip products by SaftiSeal and James Klein
4. Breach of Contract by BlazeFrame Ind. and James Klein

         The defendant will pursue the following affirmative defenses and/or claims:

1. No Direct Infringement
2. No Contributory Infringement
3. No Induced Infringement
4. Failure to Join
5. Failure of Causation

         ADMITTED FACTS

         The following facts are admitted by the parties:

         1. Klein is the named inventor of the following patents: U.S. Patents No. 7, 681, 365 ("the '365 Patent"), No. 7, 814, 718 ("the '718 Patent"), 8, 136, 314 ("the '314 Patent"), and No. 8, 151, 526 ("the '526 Patent") (collectively and individually, "the Asserted Patents")

         2. Klein, BlazeFrame Ind,, ClarkDietrich, and CEMCO were parties in the case CEMCO v. ClarkDietrich, Klein, and BlazeFrame, No. CV12-10791 ("the 10791 Case").

         3. In settlement of the 10791 Case, among other things, BlazeFrame sold the Asserted Patents to CEMCO, who is now the owner of the patents.

         4. The resolution of the case California Expanded Metal Products Company and Clarkwestern Dietrich Building Systems LLC, d.b.a. ClarkDietrich Building Systems v. James A. Klein, and Blazeframe Industries, Ltd., No. CV 16-cv-5968 resulted in the 5968 Settlement Agreement.

         5. Safti-Seal was incorporated in September 2017.

         6. Klein is the sole owner and principal of Safti-Seal.

         7. Defendant Safti-Seal sold, and continues to sell, the Safti-Frame product and the Safti-Strip product (i.e., the intumescent strip comprising intumescent material and a thermal barrier, that is sold separately from the track product).

         8. The Safti-Seal products used to build fire-rated wall assemblies that are approved by UL as shown by the following Safti-Seal UL Listings:

a. HW-D-0495 - Beam Penetration
b. HW-D-0496 - Shaft Wall under PT or Structural Concrete
c. HW-D-0498 - Standard Wall under PT or Structural Concrete
d. HW-D-0499-Parallel to Fluted Deck
e. HW-D-0502 - Parallel & Edge Overlap Under Structural ...

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