Case 2:13-cv-03538-SH Document 1 Filed 05/17/13 Page 1 of 12 Page ID #:6

Case 2:13-cv-03538-SH Document 1 Filed 05/17/13 Page 2 of 12 Page ID #:7

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SUITE 500 1333 2 nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477

COMPLAINT Plaintiffs Minarc, Inc. and M3 House, LLC (collectively Plaintiffs unless referred to individually), by and through its attorneys, allege for their complaint against Kenneth Andrew Miller (Miller), as follows: 1. This counterclaim seeks a declaratory judgment of non-infringement of United States Patents 8,109,055 (the 055 Patent), 8,109,058 (the 058 Patent), and 8,234,833 (the 833 Patent) under the provisions of 28 U.S.C. 2201 and 2202 and the patent laws of the United States, Title 35, United States Code. Should Plaintiffs become aware of prior art that would tend to invalidate one or more of the aforementioned patents, Plaintiffs reserve the right to amend this complaint to seek a declaratory judgment of invalidity as well. THE PARTIES 2. 3. Plaintiff Minarc is a California corporation with its principal place of Plaintiff M3 House, LLC is a California limited liability company with business located at 2324 Michigan Ave., Santa Monica, California 90404. its principal place of business located at 2324 Michigan Ave., Santa Monica, California 90404. 4. Both Minarc and M3 House, LLC are involved in various aspects of business relating to affordable, modern, innovative, and sustainable building design and construction using factory-built, sustainable materials, including panels of standardized sizes, which are used in a way that reduces the carbon footprint of a building and minimizes energy consumption while providing up-to-date, stylish, and contemporary look and feel, among other things. 5. Defendant Miller, believed to be a resident of Nevada, is the owner of Kama Efficiency Building Systems, Inc. dba K-tect Sustainable Building Systems, which manufacturers panel for building construction.

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CISLO & THOMAS LLP

Attorneys at Law

Case 2:13-cv-03538-SH Document 1 Filed 05/17/13 Page 3 of 12 Page ID #:8

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SUITE 500 1333 2 nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477

JURISDICTION 6. 7. This Court has jurisdiction over the subject matter of these claims Defendant Miller is subject to personal jurisdiction in this judicial pursuant to 28 U.S.C. 1331, 1338(a), 2201, and 2202. district inasmuch as Defendant Miller and his company had a business relationship with Plaintiffs and shipped and supplied materials to Plaintiffs in this judicial district for use in at least one of Plaintiffs construction projects in this judicial district. 8. In addition, in or about early February of 2013, Miller, through his wife, Alaina, accused Plaintiffs of infringing one or more of the above-referenced patents (each owned by Miller) publicly on Facebook, privately to Plaintiffs through Plaintiffs Facebook account, and through e-mail communications directly to Plaintiffs at their business e-mail addresses at their business address in Santa Monica, California. Miller has also accused Plaintiffs of infringing one or more of the above-referenced patents through its counsels communications with Plaintiffs counsel. Miller has also accused one or both Plaintiffs of infringing the aforementioned patents via service in this judicial district of a lawsuit against Plaintiffs for patent infringement, albeit that said lawsuit for patent infringement was improperly filed in Nevada state court, rather than in a federal court, as required by 28 U.S.C. 1338. These various accusations and actions by Miller and those acting at his behest have also been communicated to businesses in the Los Angeles area with whom Plaintiffs are doing, or are attempting to do, business. For these reasons, Miller is subject to personal jurisdiction in this Court. 9. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b)(2) inasmuch as a substantial part of the events or omissions giving rise to the claim occurred in this judicial district, and the property(ies) that are undergoing construction, or will be undergoing construction, by Plaintiffs, are present in this judicial district.
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CISLO & THOMAS LLP

Attorneys at Law

Case 2:13-cv-03538-SH Document 1 Filed 05/17/13 Page 4 of 12 Page ID #:9

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SUITE 500 1333 2 nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477

10.

Miller has publicly and privately accused Plaintiffs of infringing the Plaintiffs deny Millers

055 Patent, the 058 Patent, and the 833 Patent.

allegations of infringement. Plaintiffs do not infringe, and have not in any way infringed, the 055 Patent, the 058 Patent, or the 833 Patent. As such, an actual and justiciable controversy exists between Miller and Plaintiffs with respect to Plaintiffs alleged infringement of the 055 Patent, the 058 Patent, and the 833 Patent. COUNT I (Declaratory Judgment of Non-Infringement of the 055 Patent) 11. 12. Plaintiffs repeat and incorporate the facts and allegations of paragraphs Plaintiffs have not, nor have they ever, directly infringed, 1 through 10 above, inclusive, as though fully set forth herein. contributorily infringed, or induced others to infringe, any valid claim, if any, of the 055 Patent, either literally or under the doctrine of equivalents, willfully or otherwise. 13. Plaintiffs technology that Miller contends infringes the 055 Patent is not covered by any valid claim, if any, of the 055 Patent, either literally or under the doctrine of equivalents. 14. Accordingly, there exists an actual justiciable controversy between Miller and Plaintiffs concerning whether any claims of the 055 Patent are infringed by Plaintiffs. 15. Plaintiffs request a judgment declaring that Plaintiffs do not, and have not, directly infringed, contributorily infringed, or induced others to infringe, the 055 Patent. Such a determination and declaration is necessary and appropriate at this time so that the parties may ascertain their respective rights and duties regarding the non-infringement of the 055 Patent.

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CISLO & THOMAS LLP

Attorneys at Law

Case 2:13-cv-03538-SH Document 1 Filed 05/17/13 Page 5 of 12 Page ID #:10

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SUITE 500 1333 2 nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477

COUNT II (Declaratory Judgment of Non-Infringement of the 058 Patent) 16. 17. Plaintiffs repeat and incorporate the facts and allegations of paragraphs Plaintiffs have not, nor have they ever, directly infringed, 1 through 15 above, inclusive, as though fully set forth herein. contributorily infringed, or induced others to infringe, any valid claim, if any, of the 058 Patent, either literally or under the doctrine of equivalents, willfully or otherwise. 18. Plaintiffs technology that Miller contends infringes the 058 Patent is not covered by any valid claim, if any, of the 058 Patent, either literally or under the doctrine of equivalents. 19. Accordingly, there exists an actual justiciable controversy between Miller and Plaintiffs concerning whether any claims of the 058 Patent are infringed by Plaintiffs. 20. Plaintiffs request a judgment declaring that Plaintiffs do not, and have not, directly infringed, contributorily infringed, or induced others to infringe, the 058 Patent. Such a determination and declaration is necessary and appropriate at this time so that the parties may ascertain their respective rights and duties regarding the non-infringement of the 058 Patent. COUNT III (Declaratory Judgment of Non-Infringement of the 833 Patent) 21. 22. Plaintiffs repeat and incorporate the facts and allegations of paragraphs Plaintiffs have not, nor have they ever, directly infringed, 1 through 20 above, inclusive, as though fully set forth herein. contributorily infringed, or induced others to infringe, any valid claim, if any, of the 833 Patent, either literally or under the doctrine of equivalents, willfully or otherwise.
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CISLO & THOMAS LLP

Attorneys at Law

Case 2:13-cv-03538-SH Document 1 Filed 05/17/13 Page 6 of 12 Page ID #:11

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SUITE 500 1333 2 nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477

23.

Plaintiffs technology that Miller contends infringes the 833 Patent is

not covered by any valid claim, if any, of the 833 Patent, either literally or under the doctrine of equivalents. 24. Accordingly, there exists an actual justiciable controversy between Miller and Plaintiffs concerning whether any claims of the 833 Patent are infringed by Plaintiffs. 25. Plaintiffs request a judgment declaring that Plaintiffs do not, and have not, directly infringed, contributorily infringed, or induced others to infringe, the 833 Patent. Such a determination and declaration is necessary and appropriate at this time so that the parties may ascertain their respective rights and duties regarding the non-infringement of the 833 Patent. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully requests that this Court enter a judgment in its favor and against Miller as follows: (1) Declaring that Plaintiffs do not infringe, and have not ever infringed U.S. Patent Nos. 8,109,055, 8,109,058, and/or 8,234,833 directly, contributorily, by inducement, literally, under the doctrine of equivalents, willfully, or otherwise; (2) Deeming this to be an exceptional case within the meaning of 35 U.S.C. 285, and awarding Plaintiffs its attorneys fees, expenses, and costs incurred herein; /// /// ///

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CISLO & THOMAS LLP

Attorneys at Law

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