Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-00617-LTB-BNB

Document 53

Filed 08/11/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-cv-0617-LTB-BNB POLYROCK TECHNOLOGIES, LLC, a Colorado limited liability company, Plaintiff, vs. GENERAL STEEL DOMESTIC SALES, LLC, a Colorado limited liability company, d/b/a General Steel Corporation; GENSTONE ENTERPRISES, LLC, a Colorado limited liability company, d/b/a GenStone; JEFF KNIGHT; KEVIN KISSIRE; and CHUCK DEMAREST, Defendants.

DEFENDANTS GENERAL STEEL DOMESTIC SALES, LLC, GENSTONE ENTERPRISES, LLC AND JEFF KNIGHT MOTION TO STRIKE PARAGRAPHS 5 AND 53 OF PLAINTIFF'S SECOND AMENDED COMPLAINT Defendants General Steel Domestic Sales, LLC (hereinafter "General Steel"), Genstone Enterprises, LLC (hereinafter "Genstone") and Jeff Knight (hereinafter "Knight") (collectively "Defendants"), by and through their undersigned attorneys, Lewis Scheid, LLC, pursuant to Fed.R.Civ.P. 12 (f) hereby move to strike Paragraphs five ("5") and fifty-three ("53") of the Second Amended Complaint of PolyRock Technologies, LLC (hereinafter "PolyRock") and assert the following in support of their motion: 1. Plaintiff PolyRock has twice amended their complaint against Defendants to protect

their alleged intellectual property rights or proprietary technology related to the production of molded polyurethane siding or building panels. Plaintiff has both added claims and deleted claims against Defendants during the course of these two amendments.

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2. 5:

In its Second Amended Complaint, Plaintiff first asserted the following in Paragraph

"General Steel's actions in this regard, as well as its use of misappropriated technology to manufacture products without permission, are not the first time it has engaged in deceptive trade practices. In December 2004, a judge of the Jefferson County, Colorado, District Court found that in connection with the sale of steel buildings General Steel "for years engaged in sales practices that were riddled with misrepresentations and omissions" and imposed civil penalties against Jeff Knight of $200,000 and against defendant Kevin Kissire of $20,000, and permanently enjoined defendants General Steel, Knight and Kissire from engaging in deceptive sales practices or actions contrary to the Colorado Consumer Protection Act." 3. Federal Rule of Civil Procedure 12(f) allows a party to make a motion to strike a

pleading containing any redundant, immaterial, impertinent, or scandalous matter. The party so moving may bring this motion any time prior to responding to the pleading sought to be stricken. Fed.R.Civ.P. 12(f). Motions to strike "should be granted when a defendant cannot reasonably be expected to frame a responsive pleading or to defend against those portions of the complaint," and "Offending portions of the complaint must be stricken if defendants would suffer undue prejudice otherwise." FDIC v. Wise, 758 F.Supp. 1414, 1420 (D.Colo.1991). Prejudice exists if the allegation confuses the issues in the case. (N.D.Ill.1997). 4. The allegations of Paragraph 5 contained in Plaintiff's Second Amended Complaint Cumis Ins. Soc'y, Inc. v. Peters, 983 F.Supp. 787, 798

are immaterial and impertinent. The liability of one Defendant in a separate and unrelated case bears no essential or important relationship whatsoever to the claims brought in this action. First, there are no allegations of deceptive sales practices in Plaintiff's Second Amended Complaint. Second, there was no misappropriation claim in the previous case to which Plaintiff refers to in Paragraph 5. Third,

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the previous case involved sales practices to customers and potential customers of steel building products, of which Plaintiff is neither. And fourth, this order has been appealed by Defendant General Steel and has not yet been made a final decision. The allegations that Defendant General Steel has had civil penalties ordered against two of its officers in an ongoing litigation is prejudicial to Defendants because it will be difficult to respond and defend against, and will likely only confuse the issues in the present case. 5. Even if the allegations of Paragraph 5 were conclusively found to be true (i.e. The

case referred to by Plaintiff had resulted in a final decision on the merits), that fact would not make them any more pertinent to the claims brought by Plaintiff than they are today. Allegations contained in a complaint must contain "some question, of either law or fact, which the court ought to hear and determine." Burke v. Mesta Mach. Co., 5 F.R.D. 134, 138 (D.C.Pa.1946). The allegation must pertain to some issue which may be decided by the court. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993). The order of a court in a civil case that is ongoing would not be admissible as evidence to support any proposition in a subsequent case. In other words, the Plaintiff will not be permitted to offer evidence in this trial to support these allegations. As their amendments have shown, the core of Plaintiff's complaint against Defendants is that they misappropriated Plaintiff's trade secrets and confidential information. Plaintiff rests its claim for violation of the Colorado Consumer Protection Act on Defendants' alleged unpermitted use of Plaintiff's predecessors' marketing materials. Thus, these averments do not pertain and are otherwise unnecessary to the issues in dispute. 6. Plaintiff makes no attempt to explain the presence of the allegations contained in

Paragraph 5, or to make them relevant to the issues presented in their Second Amended Complaint. Plaintiff casts Defendants in a false and derogatory light by quoting an order that is irrelevant to 3

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their present claims. These allegations are brought in bad faith to cause disparagement and not for any recovery for claims brought or in dispute of any issue in the present action. 7. For the foregoing reasons, Plaintiff should be prevented from alleging a violation of

this non-final order and seeking further injunctive relief as stated in Paragraph 53 to Plaintiff's Second Amended Complaint. Therefore, Defendants request this court to strike, in their entirety, Paragraphs 5 and 53 to Plaintiff's Second Amended Complaint. Dated August 11, 2005. /s/ Kurt Lewis ____________________________ Kurt S. Lewis Lewis Scheid LLC 2300 Fifteenth Street, Suite 320 Denver, CO 80202 (303) 534-5040 ATTORNEYS FOR DEFENDANTS GENERAL STEEL DOMESTIC SALES, LLC GENSTONE ENTERPRISES, LLC & JEFF KNIGHT
CERTIFICATE OF SERVICE I hereby certify that on this 11th day of August, 2005, I electronically filed the foregoing DEFENDANTS GENERAL STEEL DOMESTIC SALES, LLC, GENSTONE ENTERPRISES, LLC AND JEFF KNIGHT MOTION TO STRIKE PARAGRAPHS 5 AND 53 OF PLAINTIFF'S SECOND AMENDED COMPLAINT with the Clerk of court using the CM/ECF system which will send

notification of such filing to the following e-mail addresses: John A. DeSisto E-mail: [email protected] Susan M. Hargleroad E-mail: [email protected] /s/ Kurt Lewis ________________________________________

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