Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-00600-JLK-MEH

Document 64

Filed 07/07/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-0600-JLK-MEH GO PRO, LTD., a Georgia limited liability company, Plaintiff, v. RIVER GRAPHICS, INC., a Colorado corporation, Defendant.

GO PRO, LTD.'S RESPONSE TO RIVER GRAPHICS, INC.'S MOTION TO STRIKE

In its Motion to Strike, River Graphics, Inc. ("River Graphics") raises two main arguments: (1) Go Pro, Ltd. ("Go Pro") should have raised arguments to suppress evidence of delay in a motion for summary judgment rather than a motion in limine; and, (2) that a 27 month delay in bringing suit may constitute laches. River Graphics' Motion is not well founded. I. FED. R. CIV. P. 56 DOES NOT PROVIDE FOR SUMMARY JUDGMENT ON AN AFFIRMATIVE DEFENSE River Graphics contends that Go Pro's motion in limine to exclude evidence of delay is a dispositive motion which should have been filed during the dispositive motion period. Fed. R. Civ. P. 56 does not provide for summary judgement on affirmative defenses. See Barreca v. South Beach Beverage Co., Inc., No. 03-cv-02372-PSF-PAC, slip op. at 3 (D. Colo. Sept. 30, 2005) (Figa, J.) (court stating that rule 56 does not provide for summary judgment on an affirmative defense) (attached as Ex. 1). Additionally, arguments related to River Graphics' affirmative defense of laches did not come to issue until recently, i.e., the fact that River Graphics had no evidence to support its

Case 1:01-cv-00600-JLK-MEH

Document 64

Filed 07/07/2006

Page 2 of 4

defense did not become clear until the Final Pretrial Order, where River Graphics was required to outline evidence in support of its positions, was completed. Because summary judgment is not available on an affirmative defense and because the issue of laches was not ripe prior to this briefing, Go Pro properly raised the issue in its motion in limine. In any case, however, Go Pro has not moved for summary judgment. Rather, it has simply moved to strike introduction of irrelevant evidence. While River Graphics attempts to convert Go Pro's motion in limine into a Rule 56 motion is clever, it is just factually not accurate. II. A 27 MONTH DELAY DOES NOT CONSTITUTE LACHES River Graphics contends that a 27 month delay constitutes laches. In Colorado, however, a three year statute of limitation applies to claims brought under Section 43(a) of the Lanham Act. Full Draw Prod. v. Easton Sports, Inc., 85 F. Supp. 2d 1001, 1011 (D. Colo. 2000). Moreover, if the delay time period is within the statute of limitations, there is a presumption that laches does not apply and defendants have the burden to establish otherwise. See Conopoco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir. 1996). Go Pro properly brought this action within the appropriate three year (36 month) statute of limitation and as such, a defense of laches presumptively does not apply. Importantly, River Graphics presents nothing in the Final Pretrial Order by way of argument or evidence it would present to overcome the presumption. River Graphics simply cannot prove laches and it would be a waste of time to even allow evidence on the issue to be presented to the jury. River Graphics' argument for prejudice is merit less. River Graphics chose to continue sales of infringing products after it received a cease and desist letter from Go Pro. River Graphics also chose to continue its sale of infringing products after this action was initiated and throughout the pendency of this case. See Elvis Presley Enter., Inc. v. Capece, 141 F.3d 188, 205 (5th Cir. 1998) 2

Case 1:01-cv-00600-JLK-MEH

Document 64

Filed 07/07/2006

Page 3 of 4

("Any acts after receiving a cease and desist letter are at the defendant's own risk because it was notice of plaintiff's objections.") There is no legally recognized prejudice to River Graphics for its voluntary actions. For these reasons as well, River Graphics cannot prove its affirmative defense of laches and any introduction of evidence of delay is irrelevant, prejudicial and a waste of judicial resources. III. CONCLUSION Because Fed. R. Civ. P. 56 does not provide summary judgment for a plaintiff on a defendant's affirmative defense and that a 27 month delay does not constitute laches, Go Pro respectfully requests the Court to deny River Graphics' Motion to Strike. A proposed Order is attached for the Court's convenience and use. Respectfully submitted,

Dated: July 7, 2006

By:

s/ Paul S. Cha Robert R. Brunelli, Esq. [email protected] Paul S. Cha, Esq. [email protected] SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 E-mail: [email protected] ATTORNEYS FOR PLAINTIFF GO PRO, LTD.

3

Case 1:01-cv-00600-JLK-MEH

Document 64

Filed 07/07/2006

Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that on July 7, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Franklin D. Patterson, Esq. [email protected] William P. Boyle, Esq. [email protected] PATTERSON, NUSS & SEYMOUR, P.C. 304 Inverness Way South, Suite 305 Englewood, Colorado 80112 Telephone: 303-741-4539 Facsimile: 303-741-5043 ATTORNEYS FOR DEFENDANT RIVER GRAPHICS, INC.

s/ Kristin M. Heil Kristin M. Heil Assistant to Paul S. Cha, Esq. SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 E-mail: [email protected] [email protected]

4