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Erico International v. Phillips et. al.

Erico International v. Phillips et. al.

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Published by PriorSmart
Official Complaint for Declaratory Judgement in Civil Action No. 1:13-cv-00502-JG: Erico International Corporation v. Phillips et. al. Filed in U.S. District Court for the Northern District of Ohio, the Hon. James S. Gwin presiding. See http://news.priorsmart.com/-l7Mf for more info.
Official Complaint for Declaratory Judgement in Civil Action No. 1:13-cv-00502-JG: Erico International Corporation v. Phillips et. al. Filed in U.S. District Court for the Northern District of Ohio, the Hon. James S. Gwin presiding. See http://news.priorsmart.com/-l7Mf for more info.

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07/02/2013

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ERICO INTERNATIONAL CORPORATION

, Plaintiff, vs. BRUCE G. PHILLIPS and ELECTRICAL PREFAB SYSTEMS, LLC, Defendants. Plaintiff, ERICO International Corporation (“ERICO”), by and through its attorneys, for its Complaint against Defendants, Bruce G. Phillips and Electrical Prefab Systems, LLC, ERICO states and alleges as follows: NATURE OF THE ACTION 1. This is a civil action brought by ERICO seeking a declaratory judgment of CASE NO. 1:13-cv-502 COMPLAINT AND DEMAND FOR JURY TRIAL

invalidity and/or non-infringement of United States Patent No. 8,168,887 (the “Patent-In-Suit”) and seeking injunctive relief and damages for unfair competition and tortious interference with business relationships and contracts.

PARTIES, JURISDICTION, AND VENUE 2. ERICO is an Ohio corporation, with its principal place of business located at

31700 Solon Road, Solon, Ohio 44139. 3. Upon information and belief, Defendant Bruce G. Phillips is an individual and a

resident of the State of Arizona, residing at 108 West Laurel Court, Gilbert, Arizona 85233. 4. Upon information and belief, Defendant Electrical Prefab Systems, LLC is an

Arizona limited liability company, with its principal place of business located at 6607 West Boston Street # 3, Chandler, Arizona 85226. 5. Upon information and belief, Defendant Phillips is the co-founder and a member

of Defendant Electrical Prefab Systems, LLC. 6. Upon information and belief, either directly or indirectly, Defendants

manufacture, distribute, supply, and/or sell goods or services into and/or from the State of Ohio. Defendants derive a financial benefit from the commercial activities they conduct, either directly or indirectly, in the State of Ohio. 7. This Complaint seeks declaratory relief under the Declaratory Judgment Act, 28

U.S.C. §§ 2201 and 2202. This Court has subject matter jurisdiction over the claims in this action pursuant to 35 U.S.C. § 271 and 28 U.S.C. §§ 1331, 1338, and 1367, because it arises, in part, pursuant to 35 U.S.C. § 271. 8. This Court also has subject matter jurisdiction over the claims in this action

pursuant to 28 U.S.C. § 1332(a), because the amount in controversy exceeds $75,000, exclusive of interest and costs, and the controversy is between citizens of different States 9. Defendants are subject to this Court’s personal jurisdiction in that they: (1)

transact business within the State of Ohio and this District; (2) contract to supply goods or

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services in the State of Ohio and this District; and/or (3) have committed tortious acts without the State of Ohio causing injury to persons or property within the State of Ohio and this District, and either regularly do or solicit business, engage in other persistent course of conduct, or derive substantial revenue from goods used or consumed or services rendered in the State of Ohio and this District. 10. Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the

events giving rise to the claims set forth below occurred in this District. Defendants’ actions were designed to cause harm to ERICO in this District. FACTUAL BACKGROUND 11. ERICO is a premier manufacturer of engineered products designed for diverse

niche applications in the electrical, mechanical, commercial and industrial, rail, and utility markets. Among the products ERICO manufactures and distributes in the United States are electrical assemblies that combine an electrical box, support bracket, mud ring, far-side support, and ground wire pigtail into a single solution that is ready to use right out of the box. 12. Upon information and belief, Defendants own the Patent-In-Suit, titled “Method

and Apparatus for Pre-Fab Wiring,” which was issued by the United States Patent and Trademark Office on May 1, 2012. A copy of the Patent-In-Suit is attached hereto as Exhibit A. 13. Defendants have accused ERICO and its customers of infringement of the Patent-

In-Suit and have insisted that ERICO requires a license under the Patent-In-Suit and other unspecified patents to market its electrical assemblies. 14. ERICO disputes that it infringes or has ever infringed, willfully or otherwise, any

claim of the Patent-In-Suit and disputes that it requires a license under the Patent-In-Suit and other unspecified patents. Furthermore, ERICO disputes that its customers’ use of ERICO’s

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electrical assemblies infringe or have ever infringed any claim of the Patent-In-Suit and disputes that its customers require a license under the Patent-In-Suit and other unspecified patents. In addition, ERICO contends that the claims of the Patent-In-Suit are invalid for failure to satisfy one or more of the statutory conditions and requirements of patentability under 35 U.S.C. §§ 101, 102, 103, and/or 112. 15. Defendants, through Defendant Phillips, have contacted at least two of ERICO’s

customers (HPH Product, Inc., a prefabricator of ERICO’s electrical assemblies, and TowerDavis Electric, a electrical contractor and installer of ERICO’s electrical assemblies) in January and/or February, 2013, and have made threats of litigation and knowingly false and misleading statements concerning ERICO and/or its products with the intent of interfering with ERICO’s business relationships and contracts, including statements to the effect that ERICO’s products infringe Defendants’ patents, when Defendants knew or should have known that such patents are invalid. 16. Upon information and belief, Defendants had knowledge of the relationship

between ERICO and HPH Product, Inc. and between ERICO and Tower-Davis Electric at the time the statements were made. 17. Upon information and belief, Defendants, through Defendant Phillips, have also

contacted other customers of ERICO and, with knowledge of ERICO’s contracts and business relationships with those customers, has made similar threats of litigation and knowingly false and misleading statements concerning ERICO and/or its products with the intent of interfering with ERICO’s business relationships and contracts with such customers. 18. Defendants have stated their intention to continue contacting ERICO customers.

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19.

Defendants’ actions were improper inasmuch as Defendants had no justification,

privilege, or cause to interfere with ERICO’s business relationships and contracts. COUNT I DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE PATENT-IN-SUIT 20. ERICO incorporates each and every allegation of Paragraphs 1-19 of this

Complaint as though fully rewritten herein. 21. An actual case or controversy exists between ERICO and Defendants as to

whether the Patent-In-Suit is infringed by ERICO. 22. ERICO has not infringed, and is not infringing, directly or indirectly, any valid

claim of the Patent-In-Suit. 23. ERICO is entitled to a judicial determination and declaration from the Court that

ERICO has not directly infringed, contributorily infringed, or induced infringement of the Patent-In-Suit. COUNT II DECLARATORY JUDGMENT OF INVALIDITY OF THE PATENT-IN-SUIT 24. ERICO incorporates each and every allegation of Paragraphs 1-23 of this

Complaint as though fully rewritten herein. 25. An actual case or controversy exists between ERICO and Defendants as to

whether the Patent-In-Suit is valid. 26. The Patent-In-Suit is invalid for failure to comply with the conditions and

requirements of 35 U.S.C. §§ 101, 102, 103, and/or 112. 27. ERICO is entitled to a judicial determination and declaration from the Court that

the Patent-In-Suit is invalid.

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COUNT III TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS AND CONTRACTS 28. ERICO incorporates each and every allegation of Paragraphs 1-27 of this

Complaint as though fully rewritten herein. 29. ERICO has existing contracts and business relationships with distributors,

prefabricators, and electrical contractors and installers, including with HPH Product, Inc. and Tower-Davis Electric. 30. Upon information and belief, Defendants know of the contracts and business

relationships between ERICO and HPH Product, Inc. and between ERICO and Tower-Davis Electric. 31. Defendants, through Defendant Phillips, contacted HPH Product, Inc. and Tower-

Davis Electric in January and/or February, 2013. 32. In one or more of his communications with HPH Product, Inc. and Tower-Davis

Electric, Defendant Phillips made threats of litigation and knowingly made false and misleading statements concerning ERICO and/or its products, with the intent of interfering with ERICO’s business relationships and contracts, including statements to the effect that ERICO’s products infringe Defendants’ patents when Defendants knew or should have known that such patents are invalid. 33. Defendants had knowledge of the contracts and business relationship between

ERICO and HPH Product, Inc. and between ERICO and Tower-Davis Electric when Defendant Phillips communicated with HPH Product, Inc. and Tower-Davis Electric in January and/or February, 2013, as described above.

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34.

Through their actions described above, Defendants have attempted to and are

attempting to interfere with ERICO’s business relationships and to procure the breach of ERICO’s contracts with its customers. 35. Defendants’ actions to interfere with ERICO’s business relationships and

contracts are being done intentionally, willfully, and with conscious disregard of ERICO’s rights. 36. Defendants lack justification, privilege, or cause to interfere with ERICO’s

business relationships and contracts. 37. As a result of Defendants’ wrongful conduct, ERICO is suffering and, unless

restrained by this Court, Defendants will continue to cause serious and irreparable harm and damage to ERICO, for which ERICO has no adequate remedy at law. COUNT IV UNFAIR COMPETITION 38. ERICO incorporates each and every allegation of Paragraphs 1-37 of this

Complaint as though fully rewritten herein. 39. Defendants’ actions complained of herein constitute unfair competition in

violation of the common law of Ohio. 40. 41. Defendants’ acts of unfair competition have been willful. ERICO has been injured as a result of the foregoing acts by causing ERICO to

lose sales or by lessening the reputation and goodwill that ERICO and its products enjoy with its customers and the consuming public. 42. Defendants’ acts of unfair competition, as set forth above, have caused and,

unless restrained by this Court, will continue to cause serious and irreparable harm and damage to ERICO, for which ERICO has no adequate remedy at law.

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PRAYER FOR RELIEF WHEREFORE, ERICO prays that this Court enter an Order: A. Declaring that ERICO has not infringed and does not currently infringe,

directly or indirectly, any claims of the Patent-In-Suit; B. C. D. Declaring that the claims of the Patent-In-Suit are invalid; Finding that this is an exceptional case; Entering judgment that Defendants have wrongfully interfered with

ERICO’s business relationships and contracts and enjoining Defendants from continuing to engage in such conduct; E. Entering judgment that Defendants have engaged in unfair competition

under Ohio law and enjoining Defendants from continuing to engage in such conduct; F. Awarding ERICO all actual damages, punitive damages, and exemplary

damages as allowed by law; G. Granting judgment for ERICO and awarding ERICO its costs, expenses,

and attorneys’ fees incurred in connection with this action; and H. and proper. JURY DEMAND Pursuant to Federal Rule of Civil Procedure 38(b), ERICO respectfully requests a trial by jury on all issues triable thereby. Awarding ERICO such other and further relief as this Court deems just

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Dated: March 7, 2013

Respectfully submitted, s/ Angela R. Gott Thomas R. Goots (Ohio Bar No. 0066010) trgoots@jonesday.com Angela R. Gott (Ohio Bar No. 0082198) agott@jonesday.com JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio 44114-1190 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 Attorneys for Plaintiff ERICO International Corporation

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