MMI v. Rich Godfrey Assocs. - Complaint

8/21/2019 MMI v. Rich Godfrey Assocs. - Complaint

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

MMI, Inc., an Arizona corporation,

Plaintiff,

v.

Rich Godfrey & Associates, Inc., an Arizona Corporation, dba ColemanPowersports; Richard W. Godfrey and

Jane Doe Godfrey, husband and wife;Cabela’s, Inc., a foreign corporation;BJ’s Wholesale Club, Inc., a foreigncorporation; Recon Enterprise, LLC,an Arizona limited liability company;

John and Jane Does 1-97, and Blackand White Companies 1-97,

Defendants.

No.

COMPLAINT FOR PATENTINFRINGEMENT

AND

DEMAND FOR JURY TRIAL

Plaintiff MMI, Inc. (hereinafter “Plaintiff”), for its Complaint against the

Defendants, alleges as follows:

THE PARTIES

1.

Plaintiff MMI, Inc., (hereinafter “MMI”) is a corporation organized and

existing under the laws of the State of Arizona, with its principal place of business at

8512 East Jenan in Scottsdale, Arizona.

2. At all times relevant, Defendant Rich Godfrey & Associates, Inc

(hereinafter “RGA”), was an Arizona corporation doing business in Maricopa County

Arizona, and doing business as Coleman Powersports.

3. At all times relevant, and upon information and belief, Defendants

Richard W. Godfrey and Jane Doe Godfrey (hereinafter “Godfrey”), were husband

MICHAEL GERITY , B AR NO. 015750ISRAEL & GERITY , PLLC3300 NORTH CENTRAL A VENUE, SUITE 2000PHOENIX , ARIZONA 85012 TELEPHONE: (602) 274-4400F ACSIMILE: (602) 274-4401MGERITY @IG-LAW .COM

A TTORNEYS FOR PLAINTIFF

Case 2:15-cv-00449-ESW Document 1 Filed 03/12/15 Page 1 of 35


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and wife, and reside in Maricopa County, Arizona. At all times material to the

Complaint, Defendant Richard Godfrey, if married, acted on behalf of and in

furtherance of his marital community with his wife, Jane Doe Godfrey. The name

Jane Doe Godfrey is a fictitious name used to represent the wife of DefendantGodfrey until her true identity is discovered

4.

At all times relevant, Defendant Cabela’s, Inc (hereinafter “Cabelas”)

was a Nebraska corporation authorized to and doing business in Maricopa County

Arizona.

5.

At all times relevant, Defendant BJ’s Wholesale Club, Inc. (hereinafter

“BJ’s”), was a Delaware corporation authorized to and doing business in Maricopa

County, Arizona.

6.

At all times relevant, Recon Enterprise, LLC (hereinafter “Recon”), was

an Arizona limited liability company doing business in Maricopa County, Arizona.

7. The true names or capacities, whether individuals, corporations

associations or otherwise of defendants John and Jane Does 1 through 97, and Black

and White Companies 1-97, are unknown to Plaintiff, who therefore sues said

Defendants by fictitious names. Plaintiff is informed and believes, and thereupon

alleges, that each of the Defendants designated herein as such is legally responsible in

some manner for the events and happenings herein referred to, and thereby

proximately caused injury and damage to Plaintiff as herein alleged. Plaintiff prays for

leave to amend this Complaint so as to allege their true names and capacities as

ascertained.

JURISDICTION AND VENUE

8.

Subject matter jurisdiction is proper in this Court pursuant to 28 U.S.C

§§ 1331 and 1338 because this action, at least in part, is for patent infringement and

arises under the Patent laws of the United States, Title 35 of the United States Code.

Jurisdiction also exists pursuant to 28 U.S.C. § 1332(a) because complete diversity of



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citizenship exists between the parties and the amount in controversy exceeds the sum

or value of $75,000, exclusive of interest and costs. This Court has jurisdiction over

any Arizona state law claims under principles of pendent, ancillary, and supplemental

jurisdiction, 28 U.S.C. §§ 1338(b) and 1367(a).9. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b), (d), and

1400(b) because, inter alia , one or more of the acts of infringement complained of took

place in this district and have had or will have had effect in this judicial district.

GENERAL AVERMENTS

MMI Background and the Patent

10.

MMI and its principal have been leaders in designing and developing

motorbike and related products for decades. Plaintiff has dedicated substantia

resources to remain on the cutting edge of an ever-changing and challenging market.

11.

To protect its investment in its designs and technology, Plaintiff has

procured several patents, including design patents. Plaintiff’s products built around

these patented designs have been widely successful, appreciated and embraced by the

industry.

12.

On April 28, 2009, United States Patent No. D591,203S (“the ‘203

Patent”) was duly and legally issued to Christopher V. Martin. MMI is the assignee of

all rights in and title to the ‘203 Patent. A true and correct copy of the ‘203 Patent is

attached as Exhibit A, and incorporated herein by this reference.

13.

The ‘203 Patent applies, at least in part, to the ornamental design of an

asymmetrical mini bike.

Defendants and the Infringing Activity

14.

Defendant Richard Godfrey is the sole owner, director and officer of

Defendant RGA. He formerly associated with Plaintiff, both as an employee of other

companies and on his own, in the business of distributing and selling mini bikes

including those incorporating the design of the ‘203 Patent and other patented designs.



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15.

Both Defendant Richard Godfrey and Defendant RGA engage, have

engaged and continue to engage in the manufacture, marketing, distribution and sale of

mini bikes.

16.

As an employee of a former licensee of ‘203 Patent, Defendant RichardGodfrey was made well aware of the existence, value and scope of that Patent, as well

as other patents owned by or otherwise assigned to Plaintiff. In fact, Defendant

Godfrey was a material witness in a prior lawsuit for infringement of the ‘203 Patent

that was brought against Defendant’s prior employer.

17.

After that litigation against his former employer was concluded

Defendant Godfrey entered into discussions with Plaintiff to license the ‘203 Patent

and sell mini bikes pursuant to such a license.

18.

As part of those discussions, and in furtherance of the proposed license

Defendant Godfrey was provided with a prototype mini bike that Plaintiff had built

using the design set forth in the ‘203 Patent. That prototype remained the property of

Plaintiff at all times. Defendant Godfrey specifically agreed he would return the

prototype to Plaintiff after he had used it to attempt to secure manufacturing and

distributing agreements for the mini bike pursuant to the proposed license.

19.

Instead of using the prototype mini bike for the intended purposes,

Defendant Godfrey took possession and control of it, deprived Plaintiff of it. Upon

information and belief, Defendant Godfrey shipped or caused the prototype to be

shipped to China to be copied into an almost identical mini bike model that directly

incorporated the design elements of the ‘203 Patent (hereinafter referred to as the

“Infringing Products”).

20.

Defendant Godfrey failed and refused to return the prototype mini bike,

in violation of the parties’ agreement.

21.

While the parties had come to a licensing agreement in principle

Defendant Godfrey failed and refused to reduce the terms to writing. Nonetheless



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the parties very plainly agreed, and Defendant Godfrey specifically acknowledged, that

he would only manufacture, market, import, distribute or sell mini bikes pursuant to a

license agreement with Plaintiff.

22.

Thereafter, Defendant Godfrey formed Defendant RGA for thepurposes of manufacturing, marketing, importing, distributing and selling the

Infringing Products.

23.

Notwithstanding Defendant Godfrey’s knowledge and appreciation of

the value and scope of the ‘203 Patent, upon information and belief, Defendant

Godfrey, by himself or in conjunction with Defendant RGA, has made, imported,

distributed, sold, offered for sale and/or used Infringing Products.

24.

Upon information and belief, Defendants Godfrey and/or RGA have

sold the Infringing Products to, or have otherwise made the Infringing Products

available for subsequent purchase by, Defendant Cabelas.

25. Upon information and belief, Defendant Cabelas has thereafter made

imported, distributed, sold, offered for sale and/or used Infringing Products.

26.



available for subsequent purchase by, Defendant BJ’s.

27.

Upon information and belief, Defendant BJ’s has thereafter made,


28. Upon information and belief, Defendants Godfrey and/or RGA have


available for subsequent purchase by, Defendant Recon.

29.

Upon information and belief, Defendant Recon has thereafter made




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30.


actively induced and currently are actively inducing others to infringe one or more

claims of the ‘203 Patent through their sale of certain products.

31.


contributorily infringed and currently are contributorily infringing the ‘203 Patent by

their offer for sale and sale of certain products.

32.

Defendants Godfrey’s and/or RGA’s Infringing Products infringe the

claim of the ‘203 Patent.

33. Upon information and belief, Defendants Godfrey and/or RGA have

been aware of their infringing activity since the time the prototype was taken on oraround October 21, 2013.

34.

Upon information and belief, Defendants Cabelas, BJ’s and Recon have

been aware of the infringing activity since at least June 25, 2014, when they were sent a

demand letter on behalf of Plaintiff by undersigned counsel.

35.

Despite notice of their infringing activity, Defendants have continued

and continue the above activities to date.

36. The activities of the Defendants, with regard to their manufacture

importation, distribution, sale, offers for sale and/or use of the Infringing Products,

are and have been without authorization from Plaintiff.

COUNT I

PATENT INFRINGEMENT

37.

This cause of action arises under the Laws of the United States, Title 35

United States Code.

38. Plaintiff hereby realleges and incorporates all of the allegations contained

in the above Paragraphs as though fully set forth herein.



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39.

Upon information and belief, Defendants have infringed the ‘203 Patent

under 35 U.S.C. § 271 et seq. Upon information and belief, this infringement was

intentional.

40.

Upon information and belief, Defendants continue to infringe the ‘203

Patent under 35 U.S.C. § 271 et seq. Upon information and belief, these ongoing acts

of infringement are intentional.

41.

Upon information and belief, Defendants, acting through and by their

respective officers and owners, have, without authority, consent, right or license, and

in direct infringement of the ‘203 Patent, made, imported, distributed, sold, offered for

sale and/or used the Infringing Products in this country, and such Infringing Productshave been sold and used in this jurisdiction and district.

42.

Defendants’ infringing conduct is intentional and unlawful and, upon

information and belief, will continue unless enjoined by this Court.

43.

Because the ‘203 Patent is a design patent, the additional remedy

provided for by 35 U.S.C. § 289 applies, and Defendants are liable to Plaintiff to the

extent of their total profit on the Infringing Products, but not less than $250.

COUNT II

INDUCEMENT OF PATENT INFRINGEMENT

44.

This cause of action arises under the Patent Laws of the United States

Title 35, United States Code, in particular under 35 U.S.C. § 271(b).

45.

Plaintiff hereby realleges and incorporates all of the allegations contained


46.

Upon information and belief, Defendants, acting through and by their

respective officers and owners, have, in this country, actively and/or intentionally

induced others to make, import, distribute, sell, offer for sale and/or use the Infringing

Products, in direct infringement of the ‘203 Patent.



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47.

Defendants’ infringing conduct is intentional and unlawful and, upon


COUNT III

CONTRIBUTORY PATENT INFRINGEMENT

48.

This cause of action arises under the Patent Laws of the United States

Title 35, United States Code, in particular under 35 U.S.C. § 271(c).

49.



50. Upon information and belief, Defendants are furthermore liable for

contributory infringement, pursuant to 35 U.S.C. § 271(c), in that Defendants havemade, imported, distributed, sold, offered for sale and/or used within the United

States a component of a patented combination or composition, consisting of a

material part of the invention, knowing the same to be especially made or adapted for

use in the infringement of the ‘203 Patent and not a staple article or commodity of

commerce suitable for substantial non infringing use.

51. Defendants’ infringing conduct is intentional and unlawful and, upon


COUNT IV

BREACH OF CONTRACT

(As to Defendant Godfrey)

52.



53.

Plaintiff and Defendant Godfrey entered into valid and binding

agreements regarding the use of the prototype mini bike and any subsequent sales of

mini bike products.



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54.

Plaintiff has made demand upon Defendant Godfrey for the return of

the prototype mini bike. Defendant Godfrey has failed and refused to return it

although demand therefor has been made.

55.

Plaintiff has made demand upon Defendant Godfrey to cease and desist

all sales of Infringing Products, or to finalize a license agreement as was agreed by the

parties. Defendant Godfrey has failed and refused to do so, although demand therefor

has been made.

56.

There is now due, owing and unpaid from Defendant Godfrey to

Plaintiff, an amount to be proven at trial, but in no event less than the value of the

prototype mini bike, plus interest on the amount unpaid at the rate of ten percent(10%) per annum until paid, which amount remains due and owing despite demand

therefor.

57.

By virtue of the foregoing, Defendant Godfrey has breached his

contractual and legal obligations to Plaintiff, thereby causing Plaintiff to suffer damage

injury, and loss for which it is entitled to recover against Defendant. In addition

Plaintiff seeks its costs, expenses, and attorneys’ fees, and such other and further relief

as the court deems just and reasonable, pursuant to A.R.S. § 12-341.01 and the terms

of the parties’ agreement.

COUNT V

BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING


58.



59. The law implies in every contract, including the agreements referenced

herein, a covenant of good faith and fair dealing. The actions of Defendant Godfrey



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including but not limited to those described above, constitute breaches of the

covenant of good faith and fair dealing imposed on him.

60. As a direct result of Defendant’s breach of the covenant of good faith

and fair dealing, Plaintiff has suffered damages in an amount to be proven at trial.

COUNT VI

FRAUD


61.



62.

In requesting that Plaintiff provide Defendant Godfrey with itsprototype, Defendant Godfrey made false representations of material facts, omitted to

state material facts necessary to prevent statements made from being false, and/or

made promises he did not intend to fulfill. Defendant Godfrey knew that these

statements were false when made, that the omissions rendered certain statements false

and that Defendant had no intention of fulfilling his promises.

63. Upon information and belief, Defendant Godfrey intended that Plaintiff

rely on such misrepresentations, omissions and promises.

64.

Defendant Godfrey’s misrepresentations, omissions and promises were

material to Plaintiff’s decision to provide the prototype to Defendant Godfrey

Plaintiff was unaware of the falsity of the statements or omissions or Defendant

Godfrey’s intention not to fulfill his promises to Plaintiff.

65.

Plaintiff reasonably relied on Defendant Godfrey’s misrepresentations

omissions and promises, and had a right to so rely.

66. As a direct result of their detrimental reliance on Defendant Godfrey’s

misrepresentations, omissions and promises, Plaintiff has suffered damages in an

amount to be proven at trial.



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67.

Defendant Godfrey’s conduct and misrepresenting or omitting certain

material facts or making promises he did not intend to fulfill was in conscious

disregard of Plaintiff’s rights and interests and therefore warrants the imposition of

punitive damages.

COUNT VII

FRAUDULENT INDUCEMENT


68.



69.

Defendant Godfrey made untrue misrepresentations to and/or failed todisclose to Plaintiff facts and conditions concerning his intentions of entering into a

licensing agreement with Plaintiff.

70.

Defendant Godfrey knew or should have known that his statements or

failure to disclose all relevant facts and conditions surrounding that proposed

agreement would have the effect of materially misleading Plaintiff into providing

Defendant Godfrey with the prototype mini bike. Upon information and belief

Defendant Godfrey intended to induce Plaintiff to rely upon misrepresentations and

omissions.

71.

The misleading or undisclosed facts, particularly those regarding

Defendant’s inability or unwillingness to enter into a licensing agreement, were central

to Plaintiff’s basic decisions concerning Defendant Godfrey, and Plaintiff would not

have provided the prototype mini bike to Defendant Godfrey but for his

misrepresentations.

72. Plaintiff did not and should not have known that the misleading or

undisclosed facts were either untrue or had failed to be disclosed.



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73.

Plaintiff reasonably relied upon the representations made by Defendant

Godfrey.

74. Defendant Godfrey’s untrue statements and omissions fraudulently

induced Plaintiff to provide him with the prototype mini bike, and Plaintiff is entitled

to recover from Defendant Godfrey the damages resulting from Plaintiff’s reliance

along with all costs and reasonable attorneys’ fees.

COUNT VIII

NEGLIGENT MISREPRESENTATION


75.

Plaintiff hereby realleges and incorporates all of the allegations containedin the above Paragraphs as though fully set forth herein.

76.

Defendant Godfrey had a duty to impart true and correct information to

Plaintiff with regard to Defendant Godfrey’s willingness or ability to enter into a

licensing agreement, and to otherwise deal in good faith.

77.

Defendant Godfrey breached his duty to Plaintiff by falsely and recklessly

asserting that Defendant would enter a licensing agreement.

78. Defendant Godfrey knew or should have known that Plaintiff would rely

on this information in making its decision to provide Defendant with the prototype

mini bike.

79.

Plaintiff materially relied on this information when it decided to provide

Defendant Godfrey with the prototype mini bike.

80.

As a direct and proximate cause of Defendant Godfrey’s breach of his

duty of care, Plaintiff has suffered damages.



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COUNT IX

INJUNCTIVE RELIEF

81. Plaintiff hereby realleges and incorporates all of the allegations contained


82.

Defendants’ wrongful conduct has caused and threatens to cause

irreparable harm to Plaintiff that is incapable of being adequately determined and

adequately remedied by money damages.

83.

Plaintiff will continue to suffer irreparable harm unless Defendants are

enjoined from continuing improper acts, including but not limited to, wrongfully

infringing, inducing infringement of, and contributing to the infringement of the ‘203Patent.

84.

Accordingly, Plaintiff is entitled to a preliminary injunction and a

permanent injunction, prohibiting Defendants from making, using, selling, offering for

sale, importing and offering to import any and all Infringing Products.

85.

A Preliminary Injunction is appropriate in this matter: (a) because

Plaintiff has a likelihood of success on the merits; (b) Plaintiff faces immediate and

irreparable harm due to Defendants’ acts and conduct; (c) that there is a special

urgency warranting the grant of injunctive relief; and (d) the balance of hardship tips in

favor of Plaintiff.

DAMAGES

86.

Plaintiff has suffered, is suffering, and will continue to suffer irreparable

harm and injury as a result of Defendants’ aforesaid activities. Defendants will, unless

restrained and enjoined, continue to act in the unlawful manner complained of herein,

all to Plaintiff’s irreparable damage. Plaintiff’s remedy at law is not adequate to

compensate it for the injuries suffered and threatened.



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87.

By reason of Defendants’ acts complained of herein, Plaintiff has

suffered monetary damages in an amount that has not yet been determined, but upon

information and belief, is substantially in excess of the sum or value of $75,000,

exclusive of interest and costs.

88.

Pursuant to 35 U.S.C. § 284, Plaintiff is entitled to: an accounting by

Defendants of all revenues received through the commercial exploitation of the

Infringing Products; the imposition of a constructive trust for the benefit of Plaintiff

upon all such funds in the custody or control of Defendants; and to such other

damages to which Plaintiff may be determined to be entitled.

89.

Pursuant to 35 U.S.C. § 289, Plaintiff is entitled to recover Defendants’total profit on the Infringing Products, but not less than $250, as an additional remedy

for infringement of a design patent.

REQUEST FOR JURY TRIAL

90.

Plaintiff hereby demands that this cause be tried by a jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays as follows:

A. That judgment be entered that Defendants have infringed, actively

induced others to infringe, and/or contributorily infringed United States Letters Patent

No. D591,203S.

B. That Defendants, their agents, officers, directors, employees

servants, attorneys, privies, successors and assigns, and all holding by, through or

under Defendants, and all those acting for or on the behalf of Defendants, or in active

concert, participation, or combination with them, be enjoined and restrained

immediately and preliminarily, during the pendency of this action and permanently

thereafter from:



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(1) making, using, selling and/or importing the Infringing

Products, or any colorable imitation thereof,

(2) otherwise infringing upon Plaintiff’s Patent.

C. That this Court order Defendants, and their officers, agents

servants and employees, to deliver up to this Court, and to permit the seizure by

Officers appointed by the Court of all articles and materials infringing upon the rights

of Plaintiff, and particularly, without limitation, all products or other merchandise

which embodies or includes the Infringing Products, and to be delivered up for

destruction on the issuance of a final Order in this action, including all Infringing

Products, and all equipment, molds and other matter or materials for reproducing suchInfringing Products.

D. That Defendants be required to file with the Court within thirty

(30) days after entry of final judgment of this cause a written statement under oath

setting forth the manner in which Defendants have complied with the final judgment.

E. That Defendants be required to pay to Plaintiff such damages as

Plaintiff has sustained in consequence of Defendants’ infringement of the ‘203 Patent.

F. That Defendants, as an additional remedy for infringement of a

design patent, be ordered to account for and pay over to Plaintiff all their respective

gains, profits and advantages derived from the infringement of Plaintiff’s Patents

pursuant to 35 U.S.C. § 289, or such damages as may appear to the Court as proper

within the Patent Laws.

G. That in the alternative, a reasonable royalty be awarded to Plaintiff

pursuant to 35. U.S.C. § 284.

H. Due inter alia to Defendants’ willful infringement of Plaintiff’s

patent rights, that Defendants be ordered to pay Plaintiff enhanced damages (e.g.,

treble damages).



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I. That Defendants be ordered to pay to Plaintiff the costs of this

action, prejudgment interest, and post-judgment interest.

J. That Defendants be ordered to pay to Plaintiff its reasonable

attorneys’ fees, pursuant to 35 U.S.C. § 285, as well as pursuant to A.R.S. § 12-341.01.

K. Due inter alia to Defendants’ willful and flagrant disregard of

Plaintiff’s patent rights, that this case be found to be exceptional and that Defendants

be ordered to pay Plaintiff’s reasonable attorneys’ fees and experts’ fees.

L. That Plaintiff has such other and further relief as the Court may

deem just and proper.

RESPECTFULLY SUBMITTED this 11th day of March 2015.

ISRAEL & GERITY, PLLC

By: /s/Michael GerityMichael GerityIsrael & Gerity, PLLC3300 North Central Avenue, Suite 2000Phoenix, Arizona 85012

Attorneys for Plaintiff



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CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of March 2015, I electronically transmittedPlaintiff’s Complaint and Jury Demand using the CM/ECF system for filing. Thereare no CM/ECF registrants at this time.

DATED this 11th day of March 2015.

ISRAEL & GERITY, PLLC

By: /s/Michael GerityMichael Gerity3300 North Central AvenueSuite 2000Phoenix, Arizona 85012



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EXHIBIT A

‘203 Patent



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MMI v. Rich Godfrey Assocs. - Complaint

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Transcript of MMI v. Rich Godfrey Assocs. - Complaint