Bone Care Int’l, LLC v. Pentech Pharma., Inc., No. 08 C 1083, Slip Op. (N.D. Ill. Jul. 16, 2010) (Ashman, Mag. J.).
Judge Ashman granted plaintiffs’ motion to strike defendants’ late-filed expert declaration. The Court previously held that discovery in this case was long closed and that “enough [was] enough.” The Court, therefore, granted the motion to strike defendants’ expert declaration filed with a Daubert motion for three reasons:
The Court’s February 9, 2010 Order holding that “enough [was] enough” regarding discovery was still in effect.
Plaintiff would suffer prejudice from defendants’ late-filed expert declaration with trial “looming.”
Defendants had the information required in December 2009, before discovery closed.

Continue Reading Enough Really is Enough: Court Strikes Expert Declaration

Bone Care Int’l, LLC v. Pentech Pharm. Inc., No. 08 C 1083, Slip Op. (N.D. Ill. Jul. 16, 2010) (Ashman, Mag. J.).
Judge Ashman granted plaintiffs’ motion to strike defendants’ expert affidavit (the “Affidavit”) in this patent case. The Affidavit was filed in support of defendants’ Daubert motion filed after the close of fact discovery. The Court struck the Affidavit for three reasons:
The Court had already warned the parties regarding discovery that “enough [was] enough.”
The Affidavit, which contained substantive opinions and calculations, would prejudice plaintiffs. Discovery was closed, trial was looming, and plaintiffs would not have had enough opportunity to consult their experts or to file supplemental reports addressing the Affidavit.
Defendants had the information in the Affidavit at least by December 2009. Defendants could have filed the information as part of a timely expert report.

Continue Reading Court Strikes Post-Discovery Expert Declaration

Valley Entertainment, Inc. v. Friesen, No. 08 C 3470, Slip Op. (N.D. Ill. Feb. 17, 2010) (Der-Yeghiayan, J.).
Judge Der-Yeghiayan granted defendants summary judgment of noninfringement regarding plaintiff Valley Entertainment’s (“Valley”) copyright infringement claim regarding certain songs by the artist Raphael. The Court also granted defendants’ motion to strike Valley’s newly identified copyright, SR 107-850. Finally, the Court declined to exercise supplemental jurisdiction over Valley’s remaining state law claims. Valley’s asserted copyright covered only words and arrangement of sheet music, but defendants’ alleged infringement was based upon the use of sound recordings of the songs at issue. Valley did not challenge this analysis, instead identifying a new copyright, SR 107-850, that covers sound recordings. But the Court struck that copyright because it was not identified until briefing of the summary judgment motion. The copyright was not identified in Valley’s complaint or in any of Valley’s numerous discovery responses as a basis for Valley’s copyright infringement claims. The Court noted that Valley was no longer free to update its discovery pursuant to Fed. R. Civ. P. 26(a) because the update would no longer be timely.
Having resolved Valley’s federal claims, the Court declined to exercise supplemental jurisdiction over Valley’s related state law claims.

Continue Reading Court Strikes Plaintiff’s Late-Identified Copyright

Rudnicki v. WPNA 1490 AM, No. 04 C 5719, Slip. Op. (N.D. Ill. Dec. 10, 2009) (Pallmeyer, J.).
Judge Pallmeyer granted plaintiff summary judgment of copyright registration of six of his Polish radio broadcasts. The Court also granted defendants summary judgment that plaintiff lacked standing to bring his copyright infringement suit. But the Court gave plaintiff thirty days to seek reconsideration if he was able to get an assignment of plaintiff’s radio broadcasts from his employer RadioZET during that time. The Court also granted in part defendants’ motion to strike plaintiff’s summary judgment declarations.
As an initial matter, the Court held that pursuant to the Berne Convention, Polish law controlled copyright ownership issues as the country most closely related to the work and that U.S. law controlled infringement issues.
Copyright Ownership
The Court held that plaintiff’s radio news reports were protectable pursuant to Polish law, although the reported facts were not protectable. Furthermore, plaintiff’s reports dealt with political issues which is a type of reporting Polish law specifically provided should be compensated. Plaintiff’s six copyrighted broadcasts, therefore, were protectable and the copyrights were owned by plaintiff or his assignee.
Plaintiff’s contract with RadioZET provided a transfer of rights to RadioZET in plaintiff’s broadcasts that was “unlimited in time and space.” Based upon that contract, plaintiff was not the exclusive copyright holder either in Poland or anywhere in the world where a copyright was held, including in the United States. The Court, however, gave plaintiff thirty days to get an assignment from RadioZET and seek reconsideration of the standing decision based upon the assignment.
Entitlement to Damages
Plaintiff’s deposition statement that he did not incur economic loss from defendant’s alleged infringement did not prevent plaintiff from an award of actual damages. The Court noted that actual damages could be determined in the range of $20-$38 per broadcast based upon what plaintiff was originally paid for his reports, including the copyrighted reports. If plaintiff proved all 53 alleged infringements that would result in damages of $1,060 to $2,014. The Court did not consider whether statutory damages were available.
Copyrighted Works
The Court held that plaintiff had properly registered his copyright in the six broadcasts deposited with the Copyright Office.
Motion to Strike
The Court did not strike the declaration of a previously undisclosed witness because the witness was only required because the equipment required to playback recordings of the broadcasts at issue unexpectedly failed.
The Court did, however, strike portions of two declarations by plaintiff’s RadioZET supervisors. There was no evidence that the supervisors drafted or negotiated the contract. The fact that the witnesses were not disclosed in Rule 26 disclosures was not relevant, however, because they were disclosed during plaintiff’s deposition.

Continue Reading Copyright Suit Dismissed With 30 Days to Prove Standing

Lorillard Tobacco Co. v. Elston Self Service Wholesale Groceries, Inc., No. 03 C 4753, Slip Op. (N.D. Ill. May 13, 2008) (Ashman, Mag. J.).
Judge Ashman granted in part plaintiff Lorillard’s motion to strike defendant Elston’s expert report. Lorillard alleged that Elston, in violation of the Lanham Act and state law, knowingly bought and sold counterfeit Newport cigarettes. Elston offered an expert to opine on three general subjects: (1) customs and practices in the cigarette industry; (2) Elston’s cigarette purchasing history; and (3) whether the prices of the allegedly counterfeit cigarettes would have made it obvious to Elston that the cigarettes were counterfeit.
The Court held that the expert’s seven years in the cigarette industry and subsequent consulting were sufficient to qualifying him as an expert in the custom and practice of the industry. But the Court struck the remainder of the expert’s opinions. His opinions regarding Elston’s purchasing history were based solely on produced documents. And the jury could glean the same information from its review of the documents. The expert’s opinions regarding Elston’s subjective reaction to the price difference were struck because they were beyond both the expert’s expertise and his personal knowledge.

Continue Reading Opinions Beyond Expert’s Expertise Struck

MPC Containment Sys., Ltd. v. Moreland, No. 05 C 6973, 2008 WL 1775501 (N.D. Ill. Apr. 17, 2008) (Aspen, J.).*
Judge Aspen granted in part plaintiff MPC Containment’s (“MPC”) Fed. R. Civ. P. 12(f) motion to strike defendants’ (collectively “Moreland”) waiver and unclean hands defenses. The Court struck Moreland’s unclean hands defense. Moreland alleged unclean hands based upon MPC’s allegedly fraudulent procurement of a patent related to the flexible tank technology at issue. But the Court held that Moreland failed to show that MPC’s alleged fraud was somehow directed at Moreland. Furthermore, while the patented technology is related to the technology in suit, MPC’s alleged misconduct in obtaining the patent had no connection to this suit.
The Court, however, allowed Moreland’s waiver defense. Moreland did not specifically plead that MPC voluntarily relinquished its rights to the claims in suit. But it was sufficient that voluntary relinquishment could be inferred from the pleadings.
* Click here for more on this case in the Blog’s archives.

Continue Reading Affirmative Defense Struck for Insufficient Pleading