Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:06-cv-OOO60—JJF Document 8 Filed O2/21/2006 Paget of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FAIRPLAY ELECTRIC CARS, LLC, )
)
)
) C. A. NO. l:O6—cv—OOO60·.lJP
Plaintiff, )
)
v. )
)
TEXTRON INNOVATIONS INC., AND )
TEXTRON, INC. (INCLUDING ITS E~Z— )
GO DIVISION), )
)
)
Defendants. )
DEFENDANTS’ MOTION TO DISMISS, TRANSFER OR STAY SECOND~FILED
DECLARATORY JUDGMENT ACTION
Pursuant to Fed. R. Civ. P. l2(b)(l), the iirst-filed doctrine, and 28 U.S.C. § l¢104(a),
Defendants Textron Innovations Inc., and E—Z—GO (A Division of Textron Inc.) (collectively "E—
Z—GO), hereby move this Court to dismiss, transfer, or stay this second—tiled action for
"declaratory _judgment." As set forth in the accompanying brief, the tiling of this action by
plaintiff FairPlay Electric Cars, LLC ("FairPlay") represents forunrshopping in its most
egregious form. The parties to this case are already involved in litigation over the very same
patents in the United States District Court for the Southern District of Georgia. In that case, the
Court has entered a preliminary injunction against FairPlay, finding that it has committed acts of
clear and intentional copying and design patent inhingenient. In a desperate attempt to escape
the continued scrutiny of that Court, FairPlay subsequently filed this action requesting a

Case 1:06-cv-OOO60—JJF Document 8 Filed O2/21/2006 Page 2 of 4
declaratoryjudgment, based on an alleged need for this Court to declare that a new model of golf
cars being introduced by FairPlay does not infringe E—Z-GO’s design patents.
This Court should dismiss, transfer, or stay this action for at least the following reasons.
First, the Court lacks subject matter jurisdiction over this action because plaintiff has no
"reasonable apprehension" of being sued over its new "2007 ZX" model of golf car. E—Z—GO has
not made any charge of infringement with respect to this new "2007 ZX" model of golf car.
Under clearly-settled Federal Circuit law, FairP1ay lacks a reasonable apprehension of being sued
with respect to this car, and accordingly the Court lacks subject matter jurisdiction to hear this
case.
Alternatively, if FairPlay contends that the pending Georgia litigation regarding the same
patents creates a "reasonab1e apprehension" of being sued, then it is also evident that this is a
mere second-filed action, and this Court should defer to the lirst—tiled action regarding the same
patents and the same parties.
The grounds for this Motion are set forth in detail in the accompanying brief and
accompanying exhibits and declarations.
Dated: February 21, 2006 THE BAYARD FIRM
v__,_- (ct _\ —
Edmond D Peter B. Ladig (#3513)
222 Delaware Avenue, Suite 900
P,O. Box 25130
Wilmington, DE 19801
(302) 655-5000
Attorneys for Defendants
Textron Innovations Inc., and
Textron Inc. (including its E—Z--GO Division)
-2-

Case 1:06-cv-OOO60—JJF Document 8 Filed O2/21/2006 Page 3 of 4
OF COUNSEL:
Scott L. Robertson
Christopher C. Campbell
HUNTON & WILLIAMS LLP
1900 K Street, N.W.
Washington, D.C. 20006-1109
Telephone: (202) 955-1500
Attorneys for Defendants
Textron Innovations Inc., and
Textron Inc. (including its E-Z—GO Division)
-3-

Case 1:06-cv-OOO60—JJF Document 8 Filed O2/21/2006 Page 4 of 4
CERTIFICATE OF SERVICE
I, Edmond D. Johnson, hereby certify that on February 21, 2006, 1 electronically
tiled the foregoing Defendants’ Motion To Dismiss, Transfer or Stay Second—Filed
Declaratory Judgment Action with the Clerk of the Court using CM/ECF, which will
send automatic notification ofthe tiling to the following;
Richard L. Horwitz, Esquire
David E. Moore, Esquire
Potter Anderson & Corroon LLP
Hercules Plaza, 6"` Floor
1313 N. Market Street
Wilrningtcn, DE 19899-0951
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Ediiioilgli)/J'6lniso11 (#2257)
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