sundesa v. incline health

8/13/2019 Sundesa v. Incline Health

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234567891 0

1 23

1 4151 61 71 81 92 0212 22 32 42 52 62 72 8

Taylor S. Wright (California State Bar No. 288609)E-mail: [email protected] R. Laycock (Utah State Bar No. 4868; Pro Hoc Vice Forthcoming)E-mail: [email protected] B. Beckstrom (Utah State Bar No. 14 12 7; Pro Hoc Vice Forthcoming)E-mail: [email protected] BRENNAN20 Pacifica, Suite 11 30 01 South Main St . Sute 6Q.,


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laintiff Sundesa, LLC ( Sundesa ) complains against Defendant Incline Health2 Inc., a Delaware Corporation, d/b/a Evlution Nutrition ( Eviution Nutrition ), for the3 causes of action alleged as follows:4 HE PARTIES5 undesa 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 Eviution Nutrition is a corporation organized and existing9 under the laws of the State of Delaware with its principal place of business located at10 1560 Sawgrass Corporate Parkway, 4 t h Fl., Sunrise, Florida 33323.1 1 URISDICTION AND VENUE12 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. 271.14 his Court has original jurisdiction over the subject matter of this action15 under at least 28 U.S.C. 1331 and 1338(a).16 his Court has personal jurisdiction over Eviution Nutrition because17 Evlution Nutrition has purposely availed itself of the privileges and benefits of the laws18 of the State of California.19 vlution Nutrition does, and has done, substantial business in this judicial20 District, including: (i) regularly doing business or soliciting business by virtue of21 Evlution Nutritions nationwide sales and offers to sell through interactive and22 commercial website(s) which direct(s) Evlution 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 State26 his Courts exercise of personal jurisdiction over Evlution 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

CTU L B CKGROUND4 undesas technological innovations are protected by, inter alia 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. Evlution Nutrition is in the business of selling nutritional supplements and14 accessories. In particular, Evlution Nutrition sells and offers for sale, inter alia EVL15 Shaker Bottles that embody at least claim 15 of the 032 Patent and allow users to16 perform the methods claimed in at least claim 18 of the 032 Patent (the Accused17 Products ).18 3. The Accused Products also embody the claimed design of the 235 Design19 Patent.20 4. Evlution Nutrition markets, describes, encourages, and instructs its21 customers to use the Accused Products to mix ingredients in such a way as to perform the22 claimed methods of the 032 Patent.23 5 Use of any of Evlution Nutritions Accused Products infringes the 03224 Patent.25 6. The Accused Products have no substantial non-infringing uses.26 7. The design of the Accused Products are substantially the same as the design27 that is the subject matter of the 235 Design Patent.28

2COMPLAINT FOR PATENT INFRINGEMENT


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8. Furthermore, the design of the Accused Products is so similar to the design2 that is the subject matter of the 235 Design Patent that customers are likely to be3 deceived and persuaded to buy the Accused Products thinking they are actually buying4 products protected by the 235 Design Patent.9. On information and belief, Evlution Nutrition had pre-suit knowledge of the6 Asserted Patents at least because of Sundesa s marking of its products embodying the7 claims of the Asserted Patents. Commensurate with this filing, Sundesa mailed Evlution8 Nutrition a courtesy copy of this Complaint and the Asserted Patents. Thus, Evlution9 Nutrition has had knowledge of the Asserted Patents at least since filing of this10 Complaint.

IRST CLAIM FOR RELIEF2 Infringement of the 032 Patent)3 0. By this reference Sundesa realleges and incorporates the foregoing

14 paragraphs as though fully set forth herein.5 1. Eviution Nutrition has directly infringed and continues to directly infringe

16 the 032 Patent under 35 U.S.C. 271(a) by selling, and offering for sale within the17 United States the Accused Products, which infringe the 032 patent.8 2. Evlution Nutrition has had, and continues to have, the specific intent to

19 induce its customers or users of its products to infringe the 032 Patent. For example,20 Evlution Nutrition instructs its customers or users of the Accused Products to use them to21 mix ingredients according to the claimed methods of the 032 Patent.22 3. Evlution Nutrition s customers or users of the Accused Products do, in fact,23 infringe the 032 Patent.24 4. Evlution Nutrition has known, or should have known, that its customers, or25 users of its products, infringe the 032 Patent.26 5 The Accused Products are especially made to be used, and are in fact used,27 by customers, or users, of the Accused Products, in a way that infringes the 032 Patent.28



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6. Eviution Nutrition has indirectly infringed and continues to indirectly2 infringe the Asserted Patents under 35 U.S.C. 271(b) and (c) by actively inducing3 infringement of, and contributorily infringing the 032 Patent.4 7. Despite its knowledge of the 032 Patent, Eviution Nutrition has continued5 to infringe and induce others to infringe the 032 Patent.6 8. The conduct of Eviution Nutrition as set forth hereinabove gives rise to a7 cause of action for infringement of the 032 Patent, pursuant to at least 35 U S C 2718 and 281.9 9. Evlution Nutrition has manufactured, used, imported, sold, and offered for10 sale Accused Products despite an objectively high likelihood that its actions constitute11 infringement of the 032 Patent.12 0. Evlution Nutrition s manufacture, use, importation, sale, and offer for sale of13 Accused Products has been both willful and deliberate.14 1. Eviution Nutrition s acts of infringement have caused damage to Sundesa,15 and Sundesa is entitled to recover the damages sustained as a result of Eviution16 Nutrition s wrongful acts in an amount subject to proof at trial. Eviution Nutrition s17 infringement of Sundesa s rights under the 032 Patent will continue to damage18 Sundesa s business causing irreparable harm for which there is no adequate remedy at19 law, unless it is enjoined by this Court.20 2. By reason of the foregoing, Sundesa is entitled to monetary relief and21 injunctive relief against Eviution Nutrition, pursuant to 35 U.S.C. 283-85, as more22 fully set forth herein below.23 ECOND CLAIM FOR RELIEF24 Infringement of the 235 Design Patent)5 3. By this reference Sundesa realleges and incorporates the foregoing

26 paragraphs as though fully set forth herein.27 4. Evlution Nutrition has infringed, and continues to infringe the 235 Design28 Patent by offering to sell, selling, or importing, in this District, and elsewhere in the



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1 United States, the Accused Products, the design of which is substantially the same as the2 ornamental design of the 235 Design Patent.

5 Eviution Nutrition s actions constitute infringement of the 235 Design4 Patent in violation of 35 U.S.C. 271.6. Sundesa has sustained damages and will continue to sustain damages as a6 result of Evlution Nutrition s aforementioned acts of infringement.7 7. Sundesa is entitled to recover damages sustained as a result of Eviution8 Nutrition s wrongful acts in an amount to be proven at trial.9 8. Evlution Nutrition s infringement of Sundesa s rights under the 235 Design10 Patent will continue to damage Sundesa s business, causing irreparable harm, for which11 there is no adequate remedy at law, unless Evlution Nutrition is enjoined by this Court.12 9. Evlution Nutrition has willfully infringed the 235 Design Patent, entitling13 Sundesa to increased damages under 35 U.S.C. 284 and to attorneys fees and costs14 incurred in prosecuting this action under 35 U.S.C. 28515 0. Alternatively, Plaintiff is entitled to recover Evlution Nutrition s total profits16 from its sale of the Accused Products under 35 U.S.C. 289.17 R YER FOR RELIEF18 undesa prays for judgment as follows:19 judgment finding Evlution Nutrition liable for infringement of one or20 more of the claims of the 032 Patent;21 judgment finding Eviution Nutrition liable for infringement of the claims22 of the 235 Design Patent;23 rders of this Court temporarily, preliminarily, and permanently enjoining24 Eviution Nutrition, its agents, servants, and any and all parties acting in concert with any25 of them, from directly or indirectly infringing in any manner any of the claims of the 03226 Patent and 235 Design Patent, pursuant to at least 35 U.S.C. 283;27 . An award of damages adequate to compensate Sundesa for Evlution28 Nutrition s infringement of the 032 Patent, in an amount to be proven at trial;



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n award of damages adequate to compensate Sundesa for Eviution2 Nutrition s infringement of the 235 Design Patent in an amount to be proven at trial or3 in the alternative, an award of Eviution Nutrition s total profits under 35 U.S.C. 289;4 n award of treble Sundesa s damages, pursuant to at least 35 U.S.C. 284;declaration that this is an exceptional case and that Sundesa be awarded its6 attorney fees and expenses, pursuant to at least 35 U.S.C. 285;7 n award of 5undesa s costs in bringing this action, pursuant to all8 applicable state statutory and common law, including at least 35 U.S.C. 284;9 n award of Sundesa s attorney fees, pursuant to all applicable state10 statutory and common law.11 rejudgment interest, pursuant to at least 35 U.S.C. 284;12 ost-judgment interest, pursuant to at least 28 U.S.C. 1961(a); and13 or such other and further relief as the Court deems just and equitable.14 EM ND FOR JURY TRI L15 undesa demands trial by jury on all claims and issues so triable.16171819202122232425262 728

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

By: /aylor J. Wright

Attorneys for PlaintiffSundesa LLC

COMPLAINT FOR PATENT INFRINGEMENT


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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

NOTICE OF SSIGNMENT TO UNITED ST TES JUDGES

This case has been assigned to D istrict Judge osephine L Staton nd the assignedMagistrate Judge is ouglas F. McCormick

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

SACV13-01986 JLS DFMx)

Pursuant to General Order 05M7 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 m otions should be noticed on the calendar of the Magistrate Judge.

C lerk U. S. District Court

December 20 2013 y M. BarrDate eputy Clerk

NOTICE TO COUNSELA copy of this notice must be served with the summons and complaint on all defendants if a removal action isf i led, a cop y o this notice must be served on all plaint s .Subsequent documents must be filed at the following location:


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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 D)Sundesa, LLC, a Utah limited Liability Company Incline Health Inc. a Delaware Corporation, d/bfa Eviution Nutrition

(b) County of Residence of First Listed Plaintiff tah County, UT County of Residence of First Listed DefendantE X CE P TI N U. S . P LA I NT I FF CA S E S ) I N U. S . P LA I NT I FF CA S E S ONLY )c) Attorneys Firm Name, Address and Telephone Number If you are Attorneys Firm Name Address and Telephone Number) If you are

representing yourself, provide the same information, representing yourself, provide the same information.MaschoIf Brennan aschoffltrennan201 South Main Street, Suite 600 0 Pacifica, Suite 1130Salt Lake City, UT 84111 rvine, CA 92618(435) 252-1360 940) 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. Citizen of This State I ncorporated or Principal PlacePlaintiff overnment Not a Party) of Business in this StateCitizen of Another State I 2 ncorporated and Principal Place l Iof Business in Another State2. U.S. Government i 4. Diversity (Indicate Citizenship Citizen or Subject of a i 3 oreign NationDefendant f Parties In Item Ill) Foreign CountryIV . ORIGIN Place an X in one box only.) MultI-l. Original 2. Removed from 3. Remanded from 4. Reinstated or S. Transferred from Another DistrictXProceedingSate Court Appellate Court ReopenedDstrict lSpecifyl LtigationV. REQUESTED IN COMPLAINT; JURY DEMAND: nX Yes fJ No Check Yes only ifdemanded incomplaint.)CLASS ACTION under F.R.CV.P. 23: fl Yes [X]No MONEY DEMANDED IN COMPLAINT: $ subject to proofVI . 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).6

j 375 False Claims Act400 StateReapportionment

LI 410 Antitrusti anks anking30 n rt tgLI e m e m e l

460 Deportation470 Racketeer Influ-enced Corrupt Org.480 Consumer Credit

U 90 Cable/Sat TV850 Securities/Cornmodities/Eachange

L I 90 Other StatutoryActionsO 891 Agricultural Acts

893 EnvironmentalMatterso 895 Freedom ofInto.ActLI 896 Arbitration

899 Admin. ProceduresLI Act/Review of Appeal ofAgency Decisioni 950 Constitutionality ofState Statutes

LI 110 InSuranceLI 120 Marine1 7 130 Miller ActLI 140 Negotiable

150 Recovery ofOverpaymertt&Enforcement ofJument151 Medicare Actl52RecoveryofLI DefaultedLon(ExCl Vet)153 Recovery ofLI Overpayment ofVet. Benefits160 StockholdersL I uits190 OtherContract195 ContractU roduct Liability

o 196 Franchise

Instrument

L 40 Torts to LandE l 45 Tort ProductLiability290 All Other RealProperty

--P Hs9tLJfJvc..EJ 3lOAlrpIane315 AIrplaneL I roduct Liability320 Assault, LibelSlander330 Fed. EmployersL I iability340 MarIne345 Marine ProductL I b

L I 50 Motor Vehiclei 55 otor VehicleL _ roduct Liability

360 Other PersonalLI njury362 Personal Injury-7 Med Mslpratice365 Personal Injury.Product Liability367 Health Care/

Cl harmaceutical Personal InjuryProduct Liability368 AsbestosPersonal injury

E j 462 NaturalizationApplication1 465 Other

Immigration Actions

Habeas Corpus:463 Alien DetaineeSIG MOtionS to VacateSentenceLI 530 GeneralTJ S35 Death Penalty

L I 820 Copyrightsf 30 PatentLI 840 TrademarkO R T S .

PERSOAtPROPERTtOcIAESECURrr(

LI 861 HIA (1395ff)J 862 Black Lung (923)fl 863 DIWC/DIWW(405(g))L I 864 SSID Title XVILI 865 851(405(g))S60 Civil Detairiee

LI 370 Other Fraudfl 371 Truth in Lending380 Other PersonalProperty Damagen 385 Property DamageProduct Liability

h . R r : \ rT040 Mandamus/Other550 C i v i l Rights555 Prison Condition

1 : 1 ConfinementFORFITUREJP 4.FEDERALTAXU[SJII

B7OTaxes US Plaintiff or:i Defendant)r 871 IRS-Third Party 26 U S C1J 7609

422 Appeal 280 USC 158423 Withdrawal 28LI USC 157

625 Drug Related0Seizure of Property 21U S C 8 8 1LI 690 OtherLI 440 Other C i v i l Right

4 4 1 Voting442 Employment443 Housing/ccomo ations445 American withDisabilities-Employment

n 446 American withisabilities-Other0 48 Educationr.3/1A. ow

Product Liability

710 Fair Labor StandardsActLI 720 LaborlMgmt.Relations

LI 740 Railway Labor Act751 Family and MedicalLeave Act

L I 700 Other LaborLitigation791 Employee Ret. I n c .Security Act

SEAL PROPERTYEl 210 LandCondemnation2 2 3 Foreclosure0230 Rent LeaseEjectment

FOR OFFICE USE ONLY: ase Number: AC VI 3-01986 JLS DFMx)C V - 7 1 11113) I V I L C O V E R S H E E T age 1 of 3CPY


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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 fromstate court?

Yes No 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 the Southerncorresponding division in response to OrangeQuestion D, below, and skip to Section IX. EasternRiverside or San Bernardino

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

Los Angeles estern

l entura, Santa Barbara, or San LuisObispo WesternOrange SouthernRiverside or San Bernardino EasternOther Western

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 San Luiscorresponding 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: IIIIndicate the location in which amajority of defendants reside:Indicate the location in which amaioritv 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 DIVISIONEnter 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 Donly 1 answer in Column D and no answers in Column C

Your case will initially be assigned to theEASTERN DIVISION

Enter 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 D below.

h ThiLflhs

nter the initial division determined by Question A, B, or C above: 4 O U TH RN

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


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U N ITED STA TES D ISTR IC T C OU R T, C EN TR A L D ISTR IC T OF C A LIFOR N IAC IVIL C OVER SHEET

I X a) . I DENTI CA L CASES: Has this action been previously filed in this ourt and dismissed, remanded or closed? X O ESIf yes, list case number(s):

IX b). RELATED CASES: Have any cases been previously filed in this ourt that are related to the present case? O ESIf 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; or

D. Involve the same patent, trademark or copyright -nd one of the factors identified above in a, b or c also is present.

X . SI G N A T U R E O F A T T O R N E YOR SELF-REPRESENTED LITIGANT): ATE

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) under Title 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. 1935FF 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 All 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. incline health

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