Minemyer v. R-Boc Reps., Inc., No. 7 C 1763, Slip Op. (N.D. Ill. May 11, 2012) (Cole, Mag. J.).
Judge Cole denied defendant Grimsley’s Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction in this patent dispute. As an initial matter, the motion was denied as waived. Judge Coar denied an initial motion on the same grounds with leave to refile based upon information gathered during discovery. But Grimsley did not raise the issue for more than four and a half years, after entry of the final pretrial order and on the sixth day of trial. By failing to raise his motion in the final pretrial order, Grimsley waived his jurisdiction argument. And Grimsley would have also lost on the merits. Judge Coar’s original analysis remained correct. The fiduciary shield doctrine did not apply. The evidence showed that Grimsley was not acting at his employer Dura-Line’s instruction. Grimsley had discretion and control, and was “intimately involved” in a deception regarding the infringing product.