sundesa v. 310 nutrition

8/13/2019 Sundesa v. 310 Nutrition

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Taylor J. W right (California State B ar No. 288609)E-mail: twrihtmabr.comLarry R. Laycock tate Bar No. 4868; Pro 1 Jac Vice Forthcotitah E zng)E-mail: llaycock mabr.cornAdam B . Beckstrom Mtah State Bar No. 14127; P r o H a c V i c e Fortl congE-mail: abeckstrom@ mabr.comMAScu0FF BRENNAN

CS N?20 P acifica, Suite 1130 01 South M ain St. Si ite 6eftIrvine, California 92618 alt Lake C ity, Utai 8 111Telephone: 949) 202-1900 elephone: (435) 252- 360Facsimile: 949) 453-1104 acsimile: (435) 252-1361Attorneys for Plaintiff Sundesa, LL C

UNITED STATES DISTRICT C OURTCENTRAL D ISTRICT OF C ALIFORNIASundesa, LLC, a Utah Limited Liability ivil Action No SACy1301JLSCompany,

Plaintiff, OMPL INT FOR P TENTIN F R IN G E M E N TV.

310 Nutrition LLC, a California LimitedLiability Com pany, Dem and for Jury Trial]Defendant.

C O M P L A I NT FO R P A T E NT I NFRI NG EM E NT

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laintiff Sundesa, LLC ( Sundesa ) complains against Defendant 310 Nutrition2 LLC ( 310 Nutrition ) for the causes of action alleged as follows:3 HE PARTIES4 undesa 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 284 South 7006 West, Pleasant Grove, Utah 84062.7 undesa alleges 310 Nutrition is a limited liability company organized and8 existing under the laws of the State of California with its principal place of business9 located at 3208 Walnut Avenue, Manhattan Beach, CA 90266-3550.10 URISDICTION AND VENUE11 his is a civil action for patent infringement arising under the patent laws of12 the United States 35 U.S.C. 1 et seq. including 35 U.S.C. 271.13 his Court has original jurisdiction over the subject matter of this action14 under at least 28 U.S.C. 1331 and 1338(a).15 his Court has personal jurisdiction over 310 Nutrition because 31016 Nutrition has purposely availed itself of the privileges and benefits of the laws of the17 State of California.18 10 Nutrition does, and has done, substantial business in this judicial19 District, including: (i) committing acts of patent infringement in this judicial District and20 elsewhere in California; (ii) regularly doing business or soliciting business by virtue of21 310 Nutritions nationwide sales and offers to sell through interactive and commercial22 website(s) which direct(s) 3 10 Nutritions services and products to California residents;23 (iii) establishing its headquarters in California; and (iv) engaging in other persistent24 courses of conduct, and/or deriving substantial revenue from products and/or services25 provided to persons in this District and State.26 his Courts exercise of personal jurisdiction over 310 Nutrition is27 consistent with the Constitutions of the United States and the State of California.28

COMPLAINT FOR PATENT INFRINGEMENT


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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 a/ia, a portfolioof utility and design patents, including United States Utility Patent No. 6,379,032 (the6 032 Patent ) and United States Design Patent No. D510,235 (the 235 Design Patent )7 collectively the Asserted Patents ).8 0. Sundesa has marked all products embodying the claims of the Asserted9 Patents since introduction to the market.10 1. Sundesa is an exclusive licensee of the Asserted Patents and has been11 granted all rights thereunder, including the right and standing to enforce the Asserted12 Patents.13 2 10 Nutrition is in the business of selling nutritional supplements and14 accessories. In particular, 3 10 Nutrition sells and offers for sale, inter a/ia, 310 Shakers15 that embody at least claim 15 of the 032 Patent and allow users to perform the methods16 claimed in at least claim 18 of the 032 Patent (the Accused Products ).17 3. The Accused Products also embody the claimed design of the 235 Design18 Patent.19 4. 3 10 Nutrition markets, describes, encourages, and instructs its customers to20 use the Accused Products to mix ingredients in such a way as to perform the claimed21 methods of the 032 Patent.22 5 Use of any of3lO Nutritions Accused Products infringes the 032 Patent.23 6. The Accused Products have no substantial non-infringing uses.24 7. The design of the Accused Products are substantially the same as the design25 that is the subject matter of the 235 Design Patent.26 8. Furthermore, the design of the Accused Products is so similar to the design27 that is the subject matter of the 235 Design Patent that customers are likely to be28

2COMPLAINT FOR PATENT INFRINGEMENT


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1 deceived and persuaded to buy the Accused Products thinking they are actually buying2 products protected by the 235 Design Patent.

9. On information and belief, 310 Nutrition had pre-suit knowledge of the4 Asserted Patents at least because of Sundesa s marking of its products embodying theclaims of the Asserted Patents. Commensurate with this filing, Sundesa mailed 3106 Nutrition a courtesy copy of this Complaint and the Asserted Patents. Thus, 310 Nutrition7 has had knowledge of the Asserted Patents at least since filing of this Complaint.8 IRST CLAIM FOR RELIEF9 Infringement of the 032 Patent)1 0. By this reference Sundesa realleges and incorporates the foregoing11 paragraphs as though fully set forth herein.12 1. 310 Nutrition has directly infringed and continues to directly infringe the13 032 Patent under 35 U.S.C. 271(a) by selling, and offering for sale within the United14 States the Accused Products, which infringe the 032 patent.15 2. 310 Nutrition has had, and continues to have, the specific intent to induce its16 customers or users of its products to infringe the 032 Patent. For example, 310 Nutrition17 instructs its customers or users of the Accused Products to use them to mix ingredients18 according to the claimed methods of the 032 Patent.19 3. 310 Nutrition s customers or users of the Accused Products do, in fact,20 infringe the 032 Patent.21 4. 310 Nutrition has known, or should have known, that its customers, or users22 of its products, infringe the 032 Patent.23 5 The Accused Products are especially made to be used and are in fact used24 by customers, or users, of the Accused Products, in a way that infringes the 032 Patent.25 6. 310 Nutrition has indirectly infringed and continues to indirectly infringe the26 Asserted Patents under 35 U.S.C. 271 (b) and (c) by actively inducing infringement of,27 and contributorily infringing the 032 Patent.28



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7. Despite its knowledge of the 032 Patent, 310 Nutrition has continued to2 infringe and induce others to infringe the 032 Patent.

8. The conduct of 310 Nutrition as set forth hereinabove gives rise to a cause of4 action for infringement of the 032 Patent, pursuant to at least 35 U.S.C. sS 271 and 281.5 9. 310 Nutrition has manufactured, used, imported, sold, and offered for sale6 Accused Products despite an objectively high likelihood that its actions constitute7 infringement of the 032 Patent.8 0. 310 Nutrition s manufacture, use, importation, sale, and offer for sale of9 Accused Products have been both willful and deliberate.1 1. 310 Nutrition s acts of infringement have caused damage to Sundesa, and11 Sundesa is entitled to recover the damages sustained as a result of 310 Nutrition s12 wrongful acts in an amount subject to proof at trial. 310 Nutrition s infringement of13 Sundesa s rights under the 032 Patent will continue to damage Sundesa s business14 causing irreparable harm for which there is no adequate remedy at law, unless it is15 enjoined by this Court.16 2. By reason of the foregoing, Sundesa is entitled to monetary relief and17 injunctive relief against 310 Nutrition, pursuant to 35 U.S.C. 283-85, as more fully set18 forth herein below.19 ECOND CLAIM FOR RELIEF2 Infringement of the 235 Design Patent)21 3. By this reference Sundesa realleges and incorporates the foregoing22 paragraphs as though fully set forth herein.23 4. 310 Nutrition has infringed, and continues to infringe the 235 Design Patent24 by offering to sell, selling, or importing, in this District, and elsewhere in the United25 States, the Accused Product, the design of which is substantially the same as the26 ornamental design of the 235 Design Patent.27 5 3 10 Nutrition s actions constitute infringement of the 235 Design Patent in28 violation of 35 U.S.C. 271.



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6. Sundesa has sustained damages and will continue to sustain damages as a2 result of 310 Nutrition s aforementioned acts of infringement.

7. Sundesa is entitled to recover damages sustained as a result of3lO4 Nutrition s wrongful acts in an amount to be proven at trial.5 8. 310 Nutrition s infringement of Sundesa s rights under the 235 Design6 Patent will continue to damage Sundesa s business, causing irreparable harm, for which7 there is no adequate remedy at law, unless 310 Nutrition is enjoined by this Court.8 9. 310 Nutrition has willfully infringed the 235 Design Patent, entitling9 Sundesa to increased damages under 35 U.S.C. 284 and to attorneys fees and costs10 incurred in prosecuting this action under 35 U.S.C. 28511 0 lternatively, Plaintiff is entitled to recover 3 10 Nutrition s total profits12 from its sale of the Accused Product under 35 U.S.C. 289.13 RAYER FOR RELIEF1 4 undesa prays for judgment as follows:15 judgment finding 310 Nutrition liable for infringement of one or more of16 the claims of the 032 Patent;1 7 judgment finding 310 Nutrition liable for infringement of the claims of the18 235 Design Patent;1 9 rders of this Court temporarily, preliminarily, and permanently enjoining20 310 Nutrition, its agents, servants, and any and all parties acting in concert with any of21 them, from directly or indirectly infringing in any manner any of the claims of the 03222 Patent and 235 Design Patent, pursuant to at least 35 U.S.C. 283;23 n award of damages adequate to compensate Sundesa for 310 Nutrition s24 infringement of the 032 Patent, in an amount to be proven at trial;25 n award of damages adequate to compensate Sundesa for 310 Nutrition s26 infringement of the 235 Design Patent, in an amount to be proven at trial, or in the27 alternative, an award of3lO Nutrition s total profits under 35 U.S.C. 289;28 n award of treble Sundesa s damages, pursuant to at least 35 U.S.C. 284;



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G A declaration that this is an exceptional case and that Sundesa be awarded itsattorney fees and expenses, pursuant to at least 35 U.S.C. 285;

H An award of Sundesa s costs in bringing this action, pursuant to allapplicable state statutory and common law, including at least 35 U.S.C. 284;I An award of Sundesa s attorney fees, pursuant to all applicable statestatutory and common law.

J Prejudgment interest, pursuant to at least 35 U.S.C. 284;K Post-judgment interest, pursuant to at least 28 U.S.C. 1961(a); andL For such other and further relief as the Court deems just and equitable.

DEM ND FOR JURY TRI LSundesa demands trial by jury on all claims and issues so triable.

Attorneys for PlaintiffSundesa LLC

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

6COMPLAINT FOR PATENT INFRINGEMENT


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UNITED STATES DISTRICT COURTCENTRAL D ISTRICT OF CA LIFORNIA

NOTICE OF ASSIGNMENT TO UNITED STATES JUDGESThis case has been assigned to District Judge osephine L. Staton nd the assigned

Magistrate Judge is obert N. B lockThe case number on all documents filed with the Court should read as follows:

SACV13-01985 JLS RNBx)

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. D istrict Court

December 20, 2013 y . BarrDate eputy Clerk

NOTICE TO COUNSELA copy of this notice must be served with the summ ons and complaint on all defendants if a removal action isfiled, a copy of this notice m ust be served on all plaintiffs).Subsequent documents m ust be filed at the following location

Western Division J Southern D ivision j Eastern ivision312 N. Sp ring Street, G-8 11 West Fourth St., Ste 1053 470 Twelfth Street, Room 134Los Angeles, CA 90012 anta Ana, CA 92701 iverside, CA 92501


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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEET

I. a) PLAINTIFFS ( Check box i you are representing yourself El) DEFENDANTS Check ox if you are representing yourself L ISundesa, LLC, a Utah Limited Liability Company 310 Nutrition, LLC, a California Limited Liability Company

(b ) County of Residence of First Listed Plaintiff tah County, UT County of Residence of First Listed DefendantEXCEPT IN U .S . PL AINTIFF CASES) I N I f s . P LA I N T I F F CASES ONLY)

(c) Attorneys F i r m Name, Address ar id Telephone Number) If you are Attorneys Firm Nam e, Address and T elephone Number) i f you arerepresenting yourself, provide the same information, representing yourself, provide the same information.Matr,hoffBrennan asr.hoffBrennanSot South Main Street, Suits 600 0 Pacifica, Suite 1130Salt Lake City, UT 84111 rvine, CA 92618(435) 252.1360 949) 2021900II. 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)Li 1. U.s. Government . Federal Question (U.S. Citizen of This State ncorporated or Principal Place F DEFPlaintiff overnment Not a Party) of Business In this StaleCitizen of Another State ncorporated and Principal Place 0L i Sof Business in Another State2. U.S. Government Diversity (Indicate Citizenship Citizen or Subject of a 1 3 oreign Nation 6Defendant f Parties in Item lii Foreign CountryIV ORIGIN (Place an X in one box only.) . Multi1. Original . Removed from i 3. Remanded from . Reinstated or . Trerisfeoed hors Anrher istrictProceeding Li State Court .J Appellate Court e o p e n e d I istrict (Specify) itigationV REQUESTED IN COMPLAINT JURY DEMAND Y e s Li No (Check Yes only if demanded in complaint.)CLASS ACTION under F,R.Cv.P.23: []Yes JNo MONEY DEMANDED IN COMPLAINT: subject to proofV I. 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

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

375 False Claims Act400 StateReapportionment

L i 410 AntitrustL i 430 Bank and Banking9-10 4 5 0

L i 460 Deportation470 Racketeer lnfluL i enced & Corrupt Ong.

L i 480 Consumer Credit1 l 4. t

850 Securities/Corn

L i 90 Other StatutoryActionsL i 91 Agricultural Acts

893 EnvironmentalmattersLi 895 Freedom of Info.ActLi 896 Arbitration

899 Admin. ProceduresL i Act/Review of Appeal ofAgency Decision950 C onstitutionality ofLi State Statutes

110 Insuranceci 120 Marinefl l3O Miller Act40 NegotiableL i Instrument

150 Recovery ofOverpeyrnent&Enforcement ofJ udgmentL i 151 Medicare Act

152 Recovery ofEl Defaulted StudentLoan (Excl. Vet)153 Recovery ofL i Overpayment ofVet. Benefits160 StockholdersL i uits190 O therContract95 ContractLi Product Liability

196 Franchise

L i 40 Torts to LandL i 45 Tort ProductLiability

29oPill Other Real_ _ . ? i b _ _ , _ _ _ . , _ _ . .462 NaturalizationApplication465 OtherImmigration Actions

Habeas Corpus:463 Allen Detainee510 Motions to VacateSentenceJ 530 General535 Death Penalty

L i 820 Copyrights830 P atent840 Trademark

._ OR ,u1PiR5OL PROERTY

. CIALSEURITh- p861 HIA (t395f0862 Black Lung 1923)

Li 863 DIWC/DIWW (405(g))L i 864SSID Title XVI

865 8511405 Ig))560 Civil Detainee

370 Other FraudL i 371 Truth In Lending

380 Other PersonalEl Property DamageL i 385 Property DamageProduct Liability

3t0 A ir plane315 AirplaneL i p,Pr

L i 20 Assault, Libel &Slander330 Fed EmployersLi iability340 Marine

MarineLi ane ProductLi 50 Motor Vehicle- 55 Motor Vehicle

360 Other PersonalL i njury362 Personal Injury.Li Med MalpraticeEj 65 P ersonal InjuryProduct Liability367 Health CaretI ri harmaceuticalersonal InjuryProduct Liability

68 A sbestosLi ersonal Injury

L i 540 Mandamus/OtherL i 550 Civil Rights555PrIson Condit ion

L i Conditions ofConfinement FEDERALTAX S UI TS. BANKRUPTCY,, 422 Appeal 2BUSC 158

423 Withdrawal 28USC 157

870 Taxes (U.S.Plaintiff orL Defendant)- 71 IRS-Third Party 26 USCL_J 7609

gTtfIIF/PEALTY625 Drug RelatedL i Seizure of Property 21US C 881L i 690 OtheritltVS.RIHTtifijiifProduct Liability

Product Liability....,..

Li 40 Other Civil Rightsfl 441 VotingLi 442 Employment443Li Housin9/Accomodations

45 American withLi isabilities-Employmentt--i 446 Americas withU isabilities-OtherLi 448 Education

ri 710 Fair Labor StandardsActL i 720 Labor/Mgmi.Relations

L i 740 Railway Labor ActLi 75k amily and Medicale Act

190 Other LaborLitigation791 Employee Ret. Inc.Security Act

. t Jci 210 LandC o ndemnat io nLi 220 ForeclosureLi 230 Rent l.ease &5ctment_.......j

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Li Los AngelesLi Ventura, Santa Barbara, or SObispoLi OrangeLi Riverside or San BernardinoLi Other

WesternLusWesernSouthern

Eastern

Western

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 kIfftILCU1Fstate court?

Yes o Los Angeles Western

If 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 oneits agencies or employees, a party to this

Yes o

If no, go to Question C. If yes, check the os Angelesbox to the right that applies, enter the entura, Santa Barbara, or Scorresponding division in response to l ObispoQuestion D, below, and skip to Section IX.

OrangeRiverside or San BernardinoOther

Indicate the location in which amajority of plaintiffs reside:Indicate the location in which amajority of defendants reside:Indicate the location in which a El I Imaioritv of claims arose:

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

Your case will initially be assigned to theSOUTHERN D IVISIONEnter Southern in response to Question D, below.

If none applies, answer question C2 to the right.

C.2. Is either of the following true? If so, check the one that applies:2 or more answers in Column D

l only 1 answer in Column D and no answers in Column CYour case will initially be assigned to the

EASTERN DIVISIONEnter Eastern in response to Question D, below.If none applies, go to the box below.

Your case will initially be assigned to theWESTERN DIVISION

Enter Western in response to Question 0 below.

.nter the initial division determined by Question A, B, or C above: OUTHERN

CV-71 11/13) IV IL COVER SHEET age 2of3


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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 ESIf 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 E SIf 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: ? fccIi3

Notice to Counsel/Parties: The CV-71 (JS-44) 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 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 bbreviation Substantive Statement of Cause of Action

All claims for health insurance benefits (Medicare) underTitle 18, Part A, of the Social Security Act, as amended. Also,861 IA include 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 All 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 All 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 All 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 All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, asamended.865 S ll claims for retirement (old age) and survivors benefits underTitle 2 of the Social Security Act, as amended.42 U.S.C. 405 g))

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

sundesa v. 310 nutrition

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