IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN FLEET ENGINEERS, INC.

a Michigan Corporation, Plaintiff v. MUDGUARD TECHNOLOGIES, LLC a Tennessee limited liability company, TARUN SURTI an Individual, Defendant. G. Thomas Williams (P53734) Robert J. Eleveld (P13142) Attorneys for Plaintiff MCGARRY BAIR PC 32 Market Ave SW Suite 500 Grand Rapids, Michigan 49503 Tel: (616) 742-3500 Fax: (616) 742-1010 COMPLAINT NOW COMES Plaintiff Fleet Engineers, Inc. (Fleet Engineers), by and through its attorneys, McGarry Bair PC, and for its complaint against Defendants Mudguard Technologies, LLC (Mudguard) and Tarun Surti (Mr. Surti) (collectively Defendants) states as follows: NATURE OF THE ACTION 1. This is an action for declaratory judgment under 28 U.S.C. 2201 and 2202,

Case No. 1:12-CV-1143 Judge

adjudging that United States Patent No. 8,146,949 (the 949 patent) is not infringed by Plaintiff Fleet Engineers, Inc., and is invalid and unenforceable.

JURISDICTION AND VENUE 2. This action arises under the patent laws of the United States, 35 U.S.C. 271

and 281, et seq. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1331 and 1338. 3. This Court has personal jurisdiction over Defendants, and venue is proper in this

judicial district pursuant to 28 U.S.C. 1391(b)-(c) and 28 U.S.C. 1400(b). Defendants have conducted business in, had substantial contacts with, and entered into contractual agreements with Plaintiff in this judicial district. 4. Venue is further proper in this judicial district because Plaintiff resides in this

district. 28 U.S.C. 1391(b)-(c). THE PARTIES 5. Fleet Engineers, Inc. is a Michigan Corporation residing in the State of Michigan

and in this judicial district with its main offices in Muskegon, Michigan. 6. Upon information and belief, Defendant Mudguard Technologies, LLC is a

limited liability company organized under the laws of the State of Tennessee. 7. Upon information and belief, Defendant Tarun Surti is an individual residing in

the State of Tennessee. 8. Mudguard. FLEET ENGINEERS 9. Fleet Engineers is in the business of developing, manufacturing, and selling high Upon information and belief, Mr. Surti is an officer and/or manager of Defendant

quality after-market products for the trucking industry.

10.

Fleet Engineers was founded by Lewis Eklund in 1963 to manufacture

components and accessories for the trucking industry, and Fleet Engineers continues to be a family company today. 11. Fleet Engineers now manufactures and sells over 1500 products, including roll-up

doors, mud flaps, brackets, swing door hinges, corner protectors, and service decks. 12. Fleet Engineers in-house engineers improve existing products and develop new

proprietary products such as the Air Slipper line of quarter fenders, the X-FLEX mounting system, the HELLCAT mud flap bracket, the SPRAY MASTER line of fenders and most recently, the POLYTRAK and TOUGHTRAK roll-up doors, Air Slipper Side Skirts and the aerodynamic AEROFLAP mud flap. 13. These products are marketed and sold through distributors, dealers and OEM's

serviced by regional warehouses throughout North America. 14. Fleet Engineers has been producing truck parts for more than 48 years. Over the

years, it has received Fords Q-1, Navistars QA-70 and ISO 9001 awards and certifications for quality. 15. Fleet Engineers has been awarded 25 US patents over the years and currently

owns 14 unexpired U.S. patents and has other patents pending. 16. facility. GENERAL ALLEGATIONS 17. Mr. Surti is the owner of U.S. Patent No. 8,146,949 entitled MUD FLAP, filed Fleet Engineers currently employs about 105 people in its Muskegon, Michigan

on September 2, 2009, and issued April 3, 2012. See Exhibit A. 18. Upon information and belief, Mr. Surti has not assigned his rights in the 949

patent to Defendant Mudguard. 3

19.

On April 20, 2010, Mr. Surti contacted Fleet Engineers through his company

Defendant Mudguard regarding the V-Flap mudflap product design, which is the subject of the 949 patent. See Exhibit B. 20. In order to facilitate discussion between the two companies, Defendant Mudguard

and Fleet Engineers entered into a Confidentiality and Non-Competition Agreement on April 28, 2010. 21. Defendant Mudguard and Fleet Engineers entered into a Distributor Agreement

on July 20, 2010, for Mudguards V-Flap mudflap product design. See Exhibit C. 22. The Distributor Agreement superseded the prior Confidentiality and Non-

Competition Agreement, pursuant to the terms of the Distributor Agreement. Exhibit C, para. 11(b). 23. C. 24. The Distributor Agreement does not contain a covenant not to compete The Distributor Agreement does not contain a confidentiality provision. Exhibit

subsequent to the termination of the agreement. Exhibit C. 25. The Distributor Agreement could be terminated upon mutual agreement of the

parties. Exhibit C, para 8(b)(i). 26. Upon termination of the Distributor Agreement, neither party shall be

responsible to the other for any damages growing out of the termination of this Agreement for any reason whatsoever . Exhibit C, para 8(c)(iii). 27. From July 20, 2010 to September 27, 2010, Fleet Engineers performed testing and

evaluation of the V-Flap product and ultimately determined the product was not saleable.

28.

The Distributor Agreement was terminated by mutual agreement of the parties on

September 30, 2010. See Exhibit D. 29. After termination of the Distribution Agreement, Fleet Engineers undertook

development of its AeroFlap brand mudflap product which was introduced at a trade show in February 2012. 30. On June 28, 2012, Mr. Wes Eklund, President of Fleet Engineers, received

correspondence from Mr. Edward S. Wright, counsel for Mr. Surti, asserting that the Fleet Engineers AeroFlap brand mudflap product infringes upon the 949 patent. See Exhibit E. 31. On June 29, 2012, Mr. John McGarry, outside patent counsel for Fleet Engineers

with the undersigned law firm of McGarry Bair PC, contacted Mr. Wright and requested copies of documentation to support the claims of infringement outlined in the June 28, 2012, correspondence. See Exhibit F. 32. Almost one month later on July 23, 2012, Mr. Wright responded to Mr.

McGarrys request. See Exhibit G. 33. Mr. Wright asserted in his July 23, 2012, correspondence that Mr. Surti had

provided proprietary information to Fleet Engineers, along with customer list information. 34. 35. No documentation supporting these claims was provided. On July 24, 2012, Mr. McGarry again requested documentation and evidence to

support the claims asserted by Mr. Wright. See Exhibit H. 36. On July 27, 2012, Mr. Wright did respond with additional information and some

documents. See Exhibit I. 37. The documentation provided by Mr. Wright failed to support the claims asserted

by Mr. Wright.

38.

On September 4, 2012, Mr. McGarry sent a response to Mr. Wright on behalf of

Fleet Engineers responding to Mudguards June 28, July 23, and July 27, 2012, correspondence. See, Exhibit J. 39. As detailed in the correspondence from Mr. McGarry, Fleet Engineers has not

infringed any claims of the 949 patent. Exhibit J. 40. Also as detailed in Mr. McGarrys correspondence, Fleet Engineers has not

misappropriated the proprietary information of Defendant Mudguard in violation of the Confidentiality & Non-Competition Agreement or the Distributorship Agreement. Exhibit J. 41. On September 27, 2012, Mr. Wright again contacted Mr. McGarry and again

asserted that the Fleet Engineers AeroFlap brand product infringed on the claims of the 949 patent. See, Exhibit K. 42. Mr. Wright threatened that if Fleet Engineers continued to sell its AeroFlap brand

product, that Mr. Surti would have no choice but to take action to terminate your clients infringing activities and recover damages if the matter continues much longer. Exhibit K. 43. On October 16, 2012, Fleet Engineers became aware that Defendants had issued

an open letter to companies who had purchased the Fleet Engineers AeroFlap brand product. See, Exhibit L. 44. Fleet Engineers has also become aware that Defendants have issued various

accusatory statements through the social media website Twitter. See, Exhibit M. 45. allegations. 46. At least one customer of Fleet Engineers has refrained from purchasing and using Fleet Engineers have been contacted by many of its customers about Defendants

the AeroFlap brand product as a result of the correspondence from Defendants.

47.

Several customers of Fleet Engineers have expressed concern about purchasing

and using the AeroFlap brand product as a result of the correspondence from Defendants. 48. Fleet Engineers has a reasonable apprehension of imminent suit based upon the

blanket statements of Defendants to the market, its threats of litigation and its statements in social media that Fleet Engineers is in violation of its 949 patent. 49. Fleet Engineers, its reputation, and its products have been damaged as a result of

the Defendants actions. COUNT I DECLARATORY JUDGMENT OF NON-INFRINGEMENT 50. 51. Fleet Engineers incorporates all prior paragraphs as if asserted herein. Under 28 U.S.C. 2201, this Court is empowered to declare the rights and

obligations of the parties in this dispute and to put an end to the allegations of patent infringement by Defendants against Fleet Engineers and its customers. 52. An ongoing and actual controversy exits between the parties about whether Fleet

Engineers has infringed the 949 patent. 53. Fleet Engineers is entitled to a Declaratory Judgment on this issue that it does not

infringe any valid claim of the 949 patent. COUNT II DECLARATORY JUDGMENT OF INVALIDITY 54. 55. Fleet Engineers incorporates all prior paragraphs as if asserted herein. The 949 patent and each of its claims are invalid for failure to comply with the

patent laws of the United States, including but not limited to 35 U.S.C. 102 and 103, for reasons including, but not limited to, the following:

(a)

The alleged invention claimed in the 949 patent was known or used by others in

this country, or patented or described by others in this or a foreign country, before its alleged date of invention; (b) The alleged invention claimed in the 949 patent was patented or described in a

printed publication in this or a foreign country, or in public use or on sale in this country, more than one year prior to the application date of the 949 patent; (c) patent; (d) Before the applicants alleged invention of the subject matter claimed in the 949 The applicant for the 949 patent did not invent the subject matter claimed in the

patent, such invention was made in this country by others who did not abandon, suppress, or conceal it; and (e) The differences between the patented subject matter and the prior art are such that

the subject matter as a whole would have been obvious at the time the subject matter was made to a person having ordinary skill in the art to which the subject matter pertains. 56. Fleet Engineers is entitled to a declaratory judgment of this Court that the claims

of the 949 patent are invalid. COUNT III TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS (MICHIGAN LAW) 57. 58. Fleet Engineers incorporates all prior paragraphs as if asserted herein. As described herein, Defendants, jointly and severally, have interfered with

existing and prospective relationships between Fleet Engineers and its customers without justification and through the use of wrongful means and/or by creating or having continued an unlawful restraint of trade.

59.

Fleet Engineers had a business relationship or expectancy with at least one

potential or current customer at the time of Defendants interference. 60. The business relationship or expectancy had a reasonable likelihood of future

economic benefit for Fleet Engineers. 61. Defendants knew of the business relationship or expectancy at the time of the

claimed interference. 62. 63. 64. Defendants intentionally interfered with the business relationship or expectancy. Defendants improperly interfered with the business relationship or expectancy. Defendants conduct caused Fleet Engineers actual and/or potential customers to

disrupt or terminate the business relationship or expectancy. 65. 66. Fleet Engineers was damaged as a result of Defendants conduct. Fleet Engineers has suffered substantial injuries as a result of Defendants

interference with its existing and prospective customer relationships. 67. Defendants conduct has been willful, wanton, malicious and in bad faith,

justifying an award of punitive damages. REQUEST FOR RELIEF WHEREFORE, Plaintiff Fleet Engineers, Inc. requests that this honorable Court enter a judgment as follows: A. Finding that United States Patent No. 8,416,949 is not infringed by the AeroFlap

brand product made by Fleet Engineers; B. Finding that one or more claims of the 949 patent is invalid and void;

C.

Allowing purchase and use of the Fleet Engineers AeroFlap brand product

without any threat or other interference whatsoever against the customers of Fleet Engineers by Defendants, based on or arising out of the 949 patent; D. Finding that the 949 patent is unenforceable against the customers of Fleet

Engineers or any other users of the Fleet Engineers AeroFlap brand product; E. Enjoining Defendants pending the final adjudication of this action, and

permanently thereafter, from prosecuting or bringing or threatening to bring any action against any buyers, sellers, or users of the AeroFlap brand product for alleged infringement of the 949 patent; F. Enjoining Defendants , their officers, agents, employees, and attorneys, pending

the final adjudication of this action, and permanently thereafter, from charging or asserting that either the sale or use of the AeroFlap brand product manufactured by Fleet Engineers is in violation of or infringes Defendants alleged patent rights under the 949 patent; G. Engineers; H. trebled; and I. Awarding such other and further relief as this court may deem proper, including Awarding Fleet Engineers damages, including lost profits, such damages to be Awarding all costs and fees incurred in connection with this action to Fleet

reasonable attorney fees, this being an exceptional case.

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Respectfully submitted, Dated: October 19, 2012 By: /G. Thomas Williams/ G. Thomas Williams (P53734) Robert J. Eleveld, Esq. (P13142) Attorneys for Plaintiff MCGARRY BAIR PC 32 Market Ave SW Suite 500 Grand Rapids, Michigan 49503 Tel: (616) 742-3500 Fax: (616) 742-1010

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