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Kowalski v. Anova Food, LLC

United States District Court, D. Hawai'i

July 31, 2013

William R. Kowalski; Hawaii International Seafood, Inc., Plaintiffs,
v.
Anova Food, LLC; Anova Food, Inc.; Clearsmoke Technologies, Ltd.; DOES 1-10, Defendants

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For William R. Kowalski, Hawaii International Seafood, Inc., Plaintiffs: Allison Mizuo Lee, Milton M. Yasunaga, Cades Schutte, Honolulu, HI.

For Anova Food, LLC, Defendant: Gary G. Grimmer, LEAD ATTORNEY, Gary G. Grimmer & Associates, Honolulu, HI; R. Randall Huff, LEAD ATTORNEY, PRO HAC VICE, Zobrist Law Group, Charlottesville, VA.

For Clearsmoke Technologies, LTD, Defendant: Andrew L. Pepper, LEAD ATTORNEY, Bronster Hoshibata, Attorneys at Law, A Law Corporation, Honolulu, HI.

For Anova Food, Inc., Defendant: Stefan M. Reinke, Steven Y. Otaguro, LEAD ATTORNEYS, Lyons Brandt Cook & Hiramatsu, Honolulu, Hi.

OPINION

Helen Gillmor, United States District Judge.

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ORDER DENYING DEFENDANT ANOVA FOOD, LLC's MOTION FOR RECONSIDERATION (ECF No. 112) AND DENYING DEFENDANT CLEARSMOKE TECHNOLOGIES, LTD.'S MOTION FOR RECONSIDERATION (ECF No. 113) AND DENYING DEFENDANT ANOVA FOOD, INC.'S MOTION FOR RECONSIDERATION (ECF No. 115) AND DENYING DEFENDANTS' REQUEST FOR AN INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(b)

On January 2, 2012, Plaintiffs William R. Kowalski and Hawaii International Seafood, Inc. (" Plaintiffs" ) filed a four-count First Amended Complaint asserting claims for (Count 1) patent infringement in violation of 35 U.S.C. § 271, (Count 2) unfair competition and/or deceptive trade practices under 15 U.S.C. § 1125(a), (Count 3) unfair methods of competition under Hawaii Revised Statute (" H.R.S" ) § 480-2, and (Count 4) unfair and deceptive trade practices in violation of H.R.S. § 481A-3. (ECF No. 6.) The Plaintiffs allege that Defendants Anova Food, LLC, Anova Food, Inc., and Clearsmoke Technologies, Ltd. have infringed a patent that covers a process for treating food with smoke without the food retaining smoke taste or odor, and have falsely represented that their fish products are processed with a non-infringing process. (Id. at ¶ 8, 14.)

On August 10, 2012, the Court denied Defendant Anova Food, LLC (" Anova LLC" ) and Anova Food, Inc.'s (" Anova Inc." ) Motions to Dismiss for lack of personal jurisdiction. (ECF No. 103.) On the same date, the Court denied Defendant Clearsmoke Technologies, Ltd.'s (" Clearsmoke" ) Motion to Dismiss for lack of personal jurisdiction. (ECF No. 104.)

On August 24, 2012, Defendant Anova LLC, filed a Motion for Reconsideration of the Order Denying the Motion to Dismiss for lack of personal jurisdiction. (ECF No. 112.) The same day, Defendants Anova Inc. and Clearsmoke filed Motions for Reconsideration. (ECF No. 113, ECF No. 115.) Anova Inc. and Clearsmoke's Motions referred the Court to Anova LLC's Memorandum in support of its Motion for Reconsideration, maintaining that their arguments were similar to those of Anova LLC, and they wished to avoid unnecessary repetition.

Alternatively, the Defendants requested that the Court enter an interlocutory order pursuant to 28 U.S.C. § 1292(b), if the Motions for Reconsideration are denied.

The parties requested a number of continuances before the Court ruled on the Motions for Reconsideration. There is now no impediment to the Court ruling.

The Motions for Reconsideration (ECF No. 112, ECF No. 113, ECF No. 115.) are DENIED. The request for an interlocutory order pursuant to 28 U.S.C. § 1292(b) is DENIED.

PROCEDURAL HISTORY

The Orders that Defendants wish to have reconsidered, issued on August 10, 2012, provide a detailed procedural history. The following procedural history is relevant

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to the three Motions for Reconsideration before the Court.

On December 3, 2011, Plaintiffs William R. Kowalski (" Kowalski" ) and Hawaii International Seafood, Inc. (" Plaintiffs" ) filed a Complaint. (ECF No. 1.)

On January 2, 2012, the Plaintiffs filed a First Amended Complaint. (ECF No. 6.)

On March 19, 2012, Defendant Anova LLC filed a Motion to Dismiss. (ECF No. 15.) On the same date, Defendant Anova Inc. filed a Motion to Dismiss. (ECF No. 16.)

On April 5, 2012, Defendant Clearsmoke filed a Motion to Vacate Entry of Default, Quash Service, and Dismiss First Amended Complaint. (ECF No. 29.)

On August 10, 2012, the Court denied all of the Defendants' Motions to Dismiss for lack of personal jurisdiction (" Jurisdictional Orders" ). (ECF No. 103, ECF No. 104.)

On August 16, 2012, Plaintiffs filed an Affidavit of Service on Douglas Brinsmade (" Brinsmade" ), former President of Anova, Inc. (ECF No. 106.) Brinsmade was served with a subpoena to produce documents, information, or objects, or to permit inspection of premises. (Id.) The Affidavit of Service stated that Brinsmade was served with the subpoena on July 28, 2012.

On August 24, 2012, Defendants Anova LLC filed a Motion for Reconsideration of the Order Denying the Motion to Dismiss for lack of personal jurisdiction (" Anova LLC's Motion for Reconsideration" ). (ECF No. 112.) A declaration of Brinsmade was attached as an exhibit in support of the Motion. (ECF No. 112-2.)

That same day, Defendants Anova Inc. and Clearsmoke filed Motions for Reconsideration of the Orders denying the Motions to Dismiss for lack of personal jurisdiction. (ECF No. 113, ECF No. 115.) To avoid unnecessary repetition, Anova Inc. and Clearsmoke's Motions incorporated by reference the arguments put forth in Anova LLC's Motion, as their arguments on the errors of law and fact were similar to those of Anova LLC.

On September 12, 2012, Plaintiffs filed an Opposition to the Motions for Reconsideration. (ECF. No. 118.)

On October 4, 2012, the Court approved a " Stipulation and Order Regarding Extensions." (ECF No. 120.) To facilitate possible settlement, the Court granted the parties' request to stay all proceedings until October 17, 2012.

On October 22, 2012, the Court approved a " Second Stipulation and Order Regarding Extensions." (ECF No. 122.) To facilitate possible settlement, the Court granted the parties' request to stay proceedings until November 16, 2012. Defendants agreed not to petition for any reexamination of Plaintiff Kowalski's patents before December 1, 2012. The deadline for Defendants' Reply Memorandums were extended to December 1, 2012. The deadline for Brinsmade to respond to the subpoena was extended to December 1, 2012.

On November 21, 2012, Defendants Anova LLC, Anova Inc., and Clearsmoke filed Reply Memorandums. (ECF No. 123, ECF No. 124, ECF No. 125.)

On November 29, 2012, the Court approved a " Third Stipulation and Order Regarding Extensions." (ECF No. 127.) To facilitate possible settlement, the Court granted the parties' request to stay proceedings until January 2, 2013. Once again, Defendants agreed not to petition for any reexamination of Plaintiff Kowalski's patents before January 2, 2013. The deadline for Brinsmade to respond to the subpoena was extended to January 9, 2013.

On February 20, 2013, the Court approved a " Fourth Stipulation and Order Regarding Extensions." (ECF No. 143.) To facilitate possible settlement, the Court

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granted the parties' request to defer ruling on the Motions for Reconsideration until at least five court days after the parties' March 25, 2013 settlement conference before the Magistrate Judge. In addition to other discovery stipulations, the deadline for Brinsmade to respond to the subpoena was extended to April 8, 2013.

On February 22, 2013, in light of the six month delay in ruling on the Motions for Reconsideration at the parties' request pending settlement discussions, the Court set a hearing on the Motions for Reconsideration for April 1, 2013.

On March 25, 2013, a settlement conference was held before the Magistrate Judge. (ECF No. 148.) No settlement was reached.

On March 29, 2013, the Court approved a " Fifth Stipulation and Order Regarding Extensions." (ECF No. 149). To help facilitate ongoing settlement efforts, the Court agreed to grant the parties' request to continue the hearing on the Motions for Reconsideration to May 1, 2013. In addition to other discovery stipulations, the deadline for Brinsmade to respond to the subpoena was extended to five court days after May 1, 2013.

On April 30, 2013, after a settlement was not reached, the Court vacated the May 1, 2013 hearing.

On May 3, 2013, Defendant Anova LLC filed a Motion to Stay. (ECF No. 152.) Anova Inc. joined in the Motion.

On June 14, 2013, the Magistrate Judge denied the Motion to Stay, without prejudice. (ECF No. 178.)

Pursuant to Local Rule 7.2(d), the Court elected to decide the Motions for Reconsideration without a hearing.

STANDARD OF REVIEW

I. Motion for Reconsideration


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