Professional Documents
Culture Documents
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IN THE UNITED STATES DISTRICT COURT . "oj'
ATLANTA DIVISION
INSITUFORM TECHNOLOGIES, )
INC., et aI, )
)
Plaintiffs, )
) CIVIL ACTION FILE
v. )
) NO. 1:08-cv-333-TCB
AMERIK SUPPLIES, INC., et aI, )
Defendants, )
ORDER
A. Background
that "[a]ll costs associated with the re-inspection [of Cosmic's Austrian
Court intended for Cosmic to pay for all of Insituform's fees and expenses
the February 19, 2010 order, the Court found that Insituform failed to
discovery requests and sanctioned Insituform $7,500 for its failure to fully
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Insituform asserts that the Court's finding constitutes clear error. It
contends that the Order did not provide which discovery request
disclose details about Becks' work with Cosmic. Insituform asserts that
even if the Court were to find that Insituform failed to provide proper
Insitufornl because Cosmic: (1) never met and conferred with Insituform
Third, Insituform requests that the Court modify its order regarding
19 order, the Court found that Insituform improperly requested Dr. Richard
Parnas to conduct destructive testing on the Top Hat without first seeking
tests on another Top Hat sample, should Cosmic so request. The Court
ordered that all costs associated with the test shall be borne by Insituform.
Top Hat samples for Parnas to test in order to determine whether the Top
its order that Insituform pay Cosmic's expenses associated with the
retesting by Parnas. Insituform contends that the testing was only done in
stated method of manufacture for its Top Hats and that as a result,
Insituform should not have to bear Cosmic's expenses associated with a re
does not infringe the patents-in-suit and that Insituform and its expert are
his testimony.
On March 10, 2010, Cosmic filed its response [602]. On March 15,
Insituform filed its reply [612]. In its reply brief, Insituform, for the first
time, requests that the Court modify the order regarding the site re
after screens obstructing irrelevant portions of the facility are put in place;
that the Court has ordered be produced as Cosmic keeps them in the
ordinary course of its business; (3) require Cosmic to produce three Top
Hats with sheets of fabric and three Top Hats without sheets of fabric; and
how employees know whether to make Top Hats with or without sheets of
B. Discussion
1. Legal Standard
motions for reconsideration. Local Rule 7.2 provides that motions for
reconsideration are not to be filed "as a matter of routine practice," but only
change in the controlling law; or (3) the need to correct a clear error or
United States Army Corps of Eng'rs, 916 F. Supp. 1557, 1560 (N.D. Ga.
moving party ... to instruct the court on how the court 'could have done it
better' the first time." Id. In other words, a party "may not employ a
evidence that should have been raised earlier, introduce novel legal
change its mind." Brodgdon ex rel. Cline v. Nat'l Healthcare Corp., 103 F.
---- ---
Supp. 2d 1322, 1338 (N.D. Ga. 2000); see also Godby v. Electrolux Corp.,
May 25, 1994) ("A motion for reconsideration should not be used to
reiterate arguments that have previously been made .... [It is an improper
use of] the motion to reconsider to ask the Court to rethink what the Court
re Hollowell, 242 B.R. 541, 542-43 (Bankr. N.D. Ga. 1999) ("Motions for
a substitute for appeal. Such motions also should not be used to raise
arguments which were or could have been raised before judgment was
2. Analysis
After careful consideration, the Court will grant in part and deny in
order that Cosmic is to bear all "costs" associated with Insituform's re
inspection of Cosmic's Austrian facility. The Court apologizes for its lack of
clarity on this issue. In directing Cosmic to pay costs associated with the
re-inspection, the Court orders that Cosmic shall bear the following fees,
expenses, and costs: (1) fees for one attorney, one interpreter, and one
The next issue raised by Insituform pertains to the Court's ruling that
information before the Court, the Court was correct in concluding that
in the original briefing on Cosmic's motion for sanctions and thus are
See Brodgdon, 103 F. Supp. 2d at 1338 (a party "may not employ a motion
should have been raised earlier ....") Nonetheless, the Court finds that in
light of the Court's strong policy in favor of the parties making good faith
the Court, the award of sanctions to Cosmic and against Insituform must be
Insituform's next request is that the Court modify its order regarding
the destructive testing of the Cosmic Top Hat. The Court is unpersuaded by
Hat sample and therefore will not modify its order requiring Insituform to
the destructive test on the Top Hat. Cosmic shall be permitted to have one
attorney and one expert present for the testing of the Top Hat sample.
were not raised as a part of the briefing on Insituform's motion for default
and Cosmic's motion for sanctions. Further, Insituform failed to meet and
confer on this issue prior to raising it with the Court. Thus, this matter is
reconsideration, and the Court will not grant Insituform the relief
requested.
details regarding the site re-inspection, the Court finds that due to Feldman
meet and confer with Insituform regarding these requests and has not had
brief. Thus, the Court will reserve ruling on these issues until such a time
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II. Insituform's Submission of Attorney's Fees and
Expenses
sanctions regarding alleged lies by Insituform and its counsel; and (4)
attorneys' fees and expenses [590] and on March 8, Cosmic filed its
clarification from the Court regarding whether the Court was awarding
page sixty-nine of the February 19 Order, the Court indicated that it was
fees related to this motion must be subject to the Court's inherent powers.
Thus, the Court will award attorney's fees pursuant to FED. R. Crv. P. 37 and
not dispute that Insituform's attorney billing rates are reasonable, that the
work was actually performed, or that Insituform paid for the services.
Cosmic's arguments are without merit. Namely, the Court will not reduce
fees due to allegations that (1) there is a lack of a causal link between the
fees and the failure to comply; (2) descriptions of the work performed are
insufficient to permit the Court to ascertain whether the work was related
to the sanctioned offenses; (3) work would have been performed regardless
However, the Court agrees with Cosmic's contention that certain work was
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excessive and unnecessary, and therefore will reduce Insituform's request
for fees by $73,767.52. Additionally, the Court agrees that fees associated
their personal depositions as fact witnesses are not recoverable and thus
and Cosmic TopHat LLC [606]. In the motion, Feldman Gale states that an
[614]. In its response, AMerik states that it has no objection to the motion
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to withdraw provided that Feldman Gale's withdrawal from the case does
not delay a ruling on AMerik's motion for entry of final judgment [428].
Specifically, AMerik notes that briefing on the motion for entry of final
judgment has been completed and that Cosmic's stated reasons for
that Feldman Gale's motion should be allowed, except to the extent that
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whether the documents are privileged; if the Court finds that
the documents are not privileged, then the Court orders that
those documents be produced to ITI's counsel and deemed
attorney's eyes only under the protective order; and
3) The Court continues to maintain jurisdiction over
Feldman Gale and its attorneys, and Feldman Gale and its
attorneys concede that such jurisdiction exists, until this action
is completely concluded through all appeals.
With respect to the third and final condition, Insituform asserts that it
Court should be aware of such facts in order to gauge "to what extent
Feldman Gale itself should be jointly and severally liable for any sanctions
After careful consideration, the Court finds that Feldman Gale has
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With respect to the first requested condition regarding the site
inspection, this condition is rendered moot given the Court's decision below
regarding the irreconcilable difference, the Court finds that such a review is
officers of this Court, that it can no longer proceed as counsel for Cosmic.
Additionally, the Court will not order Feldman Gale to produce any
differences to Insituform.
Finally, with respect to the final requested condition that the Court
unnecessary. The Court's February 19 order made clear that the Court was
sanctioning Cosmic, not its attorneys, for its improper conduct during
discovery. There is nothing to suggest that Feldman Gale has been acting
outside of the scope of its authority as counsel for Cosmic, and the Court
will not retain jurisdiction over Feldman Gale due to Insituform's mere
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is no need for the Court to retain jurisdiction over Feldman Gale at this
time.
TopHat LLC.
the patents-in-suit by the United States Patent and Trademark Office [616].
The notice pertains to a pair of non-final office action letters issued by the
accused products infringe three patents: (1) the '341 patent, which relates to
apparatus and method for installing this liner; (2) the '114 patent, which
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and (3) the '832 patent, which relates to a method of lining a lateral pipe.
reexamination of all claims of the '114 patent. On February 11, 2009, the
claims 1-4, 6-12, and 14-16 of the '832 patent. On May 15, 2009, the
On March 10, 2010, the USPTO issued two non-final office actions
regarding the reexamination proceedings of the '114 and '832 patents. With
respect to the '114 patent, the examiner rejected all claims of that patent as
examiner rejected all claims of the '114 patent as obvious under 35 U.S.C.
§ 103(a). With respect to the '832 patent, the examiner found that claims 1
4, 8-12, and 14-16 are patentable, but rejected claims 6 and 7 as anticipated
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The decision to stay a lawsuit pending the completion of
1872, 1873 (N.D. Ga. 1991). Given that the USPTO has preliminarily
rejected the '114 patent in its entirety and has rejected two claims in the
'832 patent, the Court finds that in order to conserve judicial resources, a
motivated by the fact that much of this action could be rendered moot if the
However, the stay in this action does not have any bearing on the
deadline for Cosmic to tender payment to Insituform for attorney's fees and
v. Conclusion
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Finally, this action is hereby STAYED. The following motions to seal
are hereby GRANTED: motion for leave to file under seal Plaintiffs' motion
privileged document [540]; motion to file under seal reply brief re motion
to disqualify Richard D. Beck [564]; motion to file under seal motion for
leave to amend complaint [571]; and motion to file under seal Plaintiffs'
by the Court's other March 29, 2010 Order regarding Feldman Gale's
emergency motion to shorten time and for direction from the Court [622]
unaffected by the stay of this action. All other pending motions are
DENIED WITH LEAVE TO REFILE [426, 427, 428, 439, 532, 536, 541,
1 Administratively closing a case is a docket control device used by the Court for
statistical purposes. Parties need only file a motion to reopen the case.
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Ti~Y C. Batten, Sr.
United States District Judge
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