Sundesa v. Chemi-Source Et. Al.

8/13/2019 Sundesa v. Chemi-Source Et. Al.

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Taylor J. Wright California State Bar No. 288609)E-mail twright(@,i nabr.comLarry R. Laycock Utah State Bar No. 4868; Pro oc Vice Forthcom ng)E-mai1: [email protected] B. Beckstrom Utah State Bar No. 14127; Pro oc Vice Forth omE-mail: [email protected] BRENNAN20 Pacifica, Suite 1 1 30 01 South Main St., Su te ,Irvine, California 92618 alt Lake City, Utah 8 4 1 1 tTelephone: 949) 202-1900 elephone: 435) 2 5 2 -1 . 6 0Facsimile: 949) 453-1104 acsimile: 435) 252-1361Attorneys for Plaintiff Sundesa, LLC

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIASundesa, LLC, a Utah Limited Liability ivil Action No. SACV I3-01981 JLS DFMx)Company,

Plaintiff OMPL INT FOR P TENTINFRINGEMENTV.

Modifiers, Inc., a California Corporation,Chemi-Source, Inc., a CaliforniaCorporation, and Metabolic Response Dem and for Jury Trial]

Defendants.

COMPLAINT FOR PATENT INFRINGEMENT


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laintiff Sundesa, LLC ( Sundesa ) complains against Chemi-Source, Inc. and2 Metabolic Response Modifiers, Inc. (collectively Defendants ) for the causes of action3 lleged 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 Chemi-Source, Inc. is a corporation organized and existing9 under the laws of the State of California with its principal place of business located at10 Hubble, Irvine, California 92618.1 1 undesa 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 URISDICTION AND VENUE15 his is a civil action for patent infringement arising under the patent laws of16 the United States 35 U S C 1 etseq. including 35 U.S.C. 271.17 his Court has original jurisdiction over the subject matter of this action18 under at least 28 U.S.C. 1331 and 1338(a).19 his Court has personal jurisdiction over Defendants because Defendants20 have purposely availed themselves of the privileges and benefits of the laws of the State21 of California.22 efendants do, and have done, substantial business in this judicial District,23 including: (i) regularly doing business or soliciting business by virtue of Defendants24 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



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his Courts exercise of personal jurisdiction over Defendants is consistent2 with the Constitutions of the United States and the State of California.

enue is proper in this judicial district under at least 28 U.S.C. 1391 and4 4005 ACTUAL BACKGROUND6 0 undesas technological innovations are protected by, int r alia a portfolio7 of utility and design patents, including United States Design Patent No. D510,235 (the8 235 Design Patent ).9 1. Sundesa has marked all products embodying the claims of the 235 Design10 Patent since introduction to the market.11 2. Sundesa is an exclusive licensee of the 235 Design Patent and has been12 granted all rights thereunder, including the right and standing to enforce the 235 Design13 Patent.14 3. Defendants are in the business of selling nutritional supplements and15 accessories. In particular Defendants sell and offer for sale int r alia MRM Shaker16 Cups that embody the claimed design of the 235 Design Patent (the Accused17 Products ).18 4. The Accused Products have no substantial non-infringing uses.19 5 The design of the Accused Products are substantially the same as the design20 that is the subject matter of the 235 Design Patent.21 6. Furthermore, the design of the Accused Products is so similar to the design22 that is the subject matter of 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 235 Design Patent.25 7. On information and belief, Defendants had pre-suit knowledge of the 23526 Design Patent at least because of Sundesas marking of its products embodying the27 claims of the 235 Design Patent. Commensurate with this filing, Sundesa mailed28

2COMPLAINT FOR PATENT INFRINGEMENT


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1 Metabolic a courtesy copy of this Complaint and the 235 Design Patent. Thus Metabolic2 has had knowledge of the 235 Design Patent at least since filing of this Complaint.3 IRST CLAIM FOR RELIEF4 Infringement of the 235 Design Patent)8. By this reference Sundesa realleges and incorporates the foregoing6 paragraphs as though fully set forth herein.7 9. Defendants have infringed, and continue to infringe the 235 Design Patent8 by offering to sell, selling, or importing, in this District, and elsewhere in the United9 States, the Accused Products, the design of which is substantially the same as the10 ornamental design of the 235 Design Patent.

0. Defendants actions constitute infringement of the 235 Design Patent in12 violation of 35 U.S.C. 271.13 1. Sundesa has sustained damages and will continue to sustain damages as a14 result of Defendants aforementioned acts of infringement.15 2. Sundesa is entitled to recover damages sustained as a result of Defendants16 wrongful acts in an amount to be proven at trial.17 3. Defendants infringement of Sundesa s rights under the 235 Design Patent18 will continue to damage Sundesa s business, causing irreparable harm, for which there is19 no adequate remedy at law, unless Defendants are enjoined by this Court.20 4. Defendants have willfully infringed the 235 Design Patent, entitling21 Sundesa to increased damages under 35 U.S.C. 284 and to attorneys fees and costs22 incurred in prosecuting this action under 35 U.S.C. 285.23 5 Alternatively, Plaintiff is entitled to recover Defendants total profits from24 their sale of the Accused Products under 35 U.S.C. 289.25 RAYER FOR RELIEF26 undesa prays for judgment as follows:27 judgment finding Defendants liable for infringement of the claims of the28 235 Design Patent;

3COMPLAINT FOR PATENT INFRINGEMENT


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. 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;n award of damages adequate to compensate Sundesa for Defendants6 infringement of the 235 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 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. 85;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;13 n award of Sundesa s attorney fees, pursuant to all applicable state14 statutory and common law.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.202122232425262728

DATED: December 20, 2013 Larry R. LaycockTaylor J. WrightAdam B. BeckstromMASCHOFF BRENNAN

By:aylor J. W ght

Attorneys for PlaintiffSundesa LLC



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NOTICE OF ASSIGNMENT TO UNITED STATES JUDGES

This case has been assigned to District Judge osephine L. S taton nd the assignedMagistrate Judge is ouglas F. McC ormick

The case number on all documents filed with the Court should read as follows:

SAC V13-01981 JLS DFMx)

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 , Ti. S. District Co urt

December 20 2013 y M BarrDate eputy Clerk

NOTICE TO COUNSELA copy of this notice must be served with the summ ons and co mp laint on all defendants f a remo val action isfiled, a co py of this notice must be served on all p laintiffs).Subsequent docum ents must be filed at the following location:

D Western Division Southern Division astern Division312 N. Spring Street, G-8 11 W est Fourth St., S te 1053 470 Twelfth Street, Room 134Los Angeles, CA 90012 anta Ana, CA 92701 iverside, CA 92501Failure to file at the proper location will result in your documents being returned to you

CV-18 08/13) OTICE OF ASSIGNMENT TO UNITED STATES JUDGES


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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 yourself E lSurtdeua, LLC, a Utah Limited Liability Company ChemiSourc, Inc.. a California Corposatiors, and Metabolic Response Modifiers, Inc.,a California Corporation

(b) County of Residence of First Listed Plaintiff tah County, UT County o f Residence of First Listed DefendantExcEpr iN U.S . PLA INTIFF CASES) IN U.S. PLAINTIFF CASES ONLY)C) Attorneys Firm Name, Address and Telephone Number) If y o u are Attorneys Firm Name Address and Telephone Numbed) If you are

representing yourself, provide the same information, representing yourself, provide the same information.Masclioff Brennan auchoff Brennan201 South Main Street, Suite COO 0 Pacifica, Suite 1130Salt Lake City, UT 84111 rvine, CA 92618(435) 252.1360 949) 202-1900 *-Ii. 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 EV TFCitizen of This State ncorporated or Principal PlaceEEo 4Plaintiff overnment Not a Party) of Business in this StateCitizen of Another State 2 J 2 ncorporated and Principal Place l E l 5of Business In Another StateL I 2. U.S. Government . Diversity (Indicate Citizenship Citizen or Subject of a El l 3 oreign Nation J 6 6Defendant f Parties in tern Ill) Foreign Country

IV . ORIGIN (Place an X in one box only.) . Multi.1. Original 2. Removed from 3. Remanded from , Reinstated or . Transferred from Another ll istrictProceeding E I J State Court J Appellate Court l Reopened I istrict (Specify) itigationV. REQUESTED IN COMPLAINT: JURY DEMAND: es L I No (Check Yes only if demanded in complaint.)CLASS ACTION under F.R.CV.P. 23: [ ] Yes _No MONEY DEMANDED IN COMPLAINT; $subject toproofVI . CAUSE OF ACTION Cite the U.S. Civil Statute under which you are filing and writes 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

VI I. NATURE OF SUIT Place an X in one box only).

E l 375 False Claims Act400 StateReapportionmentE l 410 Antitrusten sari anking30 Banks dr50 Conrmerco/ICCI_J Rates/Etc.E l 460 Deportation

i 70 Racketeerntis.L.l enced & Corrupt Org.E l 480 Consumer Credit1"l 490 Cable/Sat TVLiE l 850 Securities/CornmoditiesfExchange

890 Other Statutoryc ActionsE l 91 Agricultural ActsE l 893 EnvironmentalMattersE l 895 Freedom of Info.ActE l 896 Arbitration

899 Admin. ProceduresE l Act/Review of Appeal ofAgency Decision950 Constitutionality ofE l State Statutes

E l 110 InsuranceE l 120 MarineE l 130 Miller Act140 NegotiableE l Instrument

5 Ir i Overpayment nforcement ofJudgmentE l 151 Medicare Act

t S2 Recovery ofE l Defaulted StudentLoan (Excl. Vet)Recovery ofE l Overpayment ofVet. Benefits

160 StockholdersE l uitsE l 190 Oth erContract

195 ContractE l Product LiabilityE l 196Franchise

E l 40 Torts to LandE l 45 Tort ProductLiabilityE l 90 All Other ReelProperty

Ei 462 NaturalizationApplication465 Other

E l ImmigrationActionsHabeas Corpus:

463 Alien DetaineeEi 510 Motions to VacateSentencet] SSOGeneralE l 535 Death Penalty

820 Copyrights830 Patent

E] 840 TrademarkT ORTP E R S O N A L P R 0 P E T V SOCIA LSE CURIT Y______ITORTS E l 861 HIA (139510E l 862 Black Lung (923)E l 863 DIWC/OIWW(405(g))

E l 864 SSID Title X V IE l 865 85 (405 (9))550 Civil Detainee

P E R S O N A L l N i l U R Y , E l 370 Other FraudE l 71 Truth in Lending

380 Other Personal1i Property Damager1 385 Properly DamageProductiProductLiability

..r\__i_5..QtlRr.,-,10 Airplane315AirplaneE l roduct Liability.

E l 20 Assault, Libel 8330 Fed. EmployersE l iability

E l 340 marineE l 5rine ProductE l 50 Motor Vehiclei 55 Motor VehicleProduct Liability

360 Other PersonalE l njury362 Personal Inj ury-E l Med Malpratice

6 Personal Injury-L Product Liability367 Health Caretj PharmaceuticalPersonal InjuryProduct Liability368 AsbestosEl ersonal InjuryProduct Liability

l 5 4 0 M a i d a m u s / O t h e rE l 50 Civil RightsE l 55 Prison ConditionE l Conditions ofConfinement F E D E R A L 1 A XS U I tS _ _B 4 N K R U P T C Y

422 Appeal 28E l USC 158423 Withdrawal 28E l U SC 157

7oDefendntl ini r

871 IRS-Third Pasty 26 USCt 7609F O R F E I T 1 J E / P E N A L T Y

625 Drug RelatedEl Seizure of Property 21USC 881l 690 OcheryfrpSi.tI;8rGH1 ;

E l 40 Other C i v i l RightE l 441 VotingE l 442 EmploymentE l Houslng/ccomodations

445 American withE l isabilities-EmploymentlC46AmericanwithLi isabilities-OtherE l 448 Education

E l710 Fair Labor StandardsActE l 720 Labor/Mgmt.Relations

E l 740RailwayLaborActl 1Familyand MedicalLeave Act

E l 7900therLaborLitigationE l Employee Ret. Inc.Se9curityAct

E l 210 LandCondemnation220E l oreclosure230 Rent Lease &Ejectment

FOR OFFICE USE ONLY: ase Number: ACVI3 01981ASDFMx)CV-71 (11113) IVIL COVER SHEET agel of 3


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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 o Los Angeles WesternIf no, go to Question B. If yes, check the Ventura, Santa Barbara, or San Luis Obispo Westernbox to the right that applies, enter thecorresponding division in response to Orange SouthernQuestion 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 Los 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 asternOther Other Western

IlluiI M1Enter the initial division determined by Question A, B, or above: OUTHERN

CV-71 11/13) IVIL OVER SHEET age 2 of 3


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Sundesa v. Chemi-Source Et. Al.

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