Free Proposed Scheduling Order - District Court of Colorado - Colorado

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

Document 32

Filed 07/07/2005

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-617-LTB-BNB POLYROCK TECHNOLOGIES, LLC, a Colorado limited liability company, Plaintiff, v. GENERAL STEEL DOMESTIC SALES, LLC, et al. Defendant(s).

SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES On July 12, 2005, the Court held a Scheduling Conference in this matter at which the following counsel appeared for the parties listed: John A. DeSisto, Featherstone DeSisto LLP, 600 17th Street, #2400, Denver, CO 80202, Telephone: 303 626-7100 Attorney for PolyRock Technologies, LLC; Kurt S. Lewis, Lewis Scheid LLC, 2300 15th Street #320, Denver, CO 80202, Telephone: 303 534-5040, Attorney for General Steel Domestic Sales, LLC; Genstone Enterprises, LLC and Jeff Knight; David S. Fein, Davis S. Fein, P.C., 2316 Main Street, Littleton, CO 80120, Telephone: 303 854-0234, Attorney for General Steel Domestic Sales, LLC; Genstone Enterprises, LLC and Jeff Knight; and Susan M. Hargleroad, Pendleton, Friedberg, Wilson & Hennessey, P.C., 1875 Lawrence Street, 10th Floor, Denver, CO 80202, Telephone: 303 839-1204, Attorney for Charles Demarest. 2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff: This is an action to protect the intellectual property rights of plaintiff P l okT cnl i , L aa s df dn ' i prpii ad o R c eho g s L C gi t e nat m s por t n n y oe n e s a ao infringement. PolyRock is the owner of United States Patent No. 6,607,683, entitled Methods and Apparatus for Manufacturing Articles With Natural Characteristics, and of other proprietary technology

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

Document 32

Filed 07/07/2005

Page 2 of 11

(collectively, the "rpia T cnl y)frt m nf t e o Por t y eho g" o h aua u f er o e cr molded polyurethane siding or building panels that realistically replicate, at significantly reduced cost, many of the desirable characteristics, including appearance, color and texture, of stone, brick and other natural building materials. Use of the Proprietary Technology enables production, through a simple and economical process, of manufactured materials that are less expensive and weigh much less than an equivalent quantity of natural stone, brick or other traditional building products. The lightweight, easily-installed panels manufactured using the Proprietary Technology do not require a skilled brick or stone-mason to install, but instead can be installed by a person having basic carpentry skills and standard carpentry tools. PolyRock licenses its Proprietary Technology to a number of companies whose products have generated significant interest in the marketplace for both exterior and interior uses in the construction and decoration of buildings. Defendant General Steel sells steel buildings commonly used for commercial or storage purposes. Prior to their involvement with those from whom PolyRock received its rights in the Proprietary Technology ( o R c' peeesr )General Steel and the other defendants did " l oks r cs s , Py d o" not manufacture or sell artificial stone or brick products. In 2002, responding to pressure from municipal and other governmental authorities to improve the exterior appearance of its steel buildings, General Steel sought to offer the option to add lightweight synthetic stone or brick facades. In preparation for negotiations concerning a possible license, General Steel undertook in writing to hold in strict confidence proprietary i om t n d c sd b P l oks peeesr and to use such n r ao i l e y oy c' r cs s f i so R d o information solely for the purpose of evaluating whether to enter into a bs esr aosi P l okspeeesr subsequently disclosed ui s e t nh . o R c' r cs s n li p y d o confidential information concerning the Proprietary Technology and other proprietary business information to General Steel and its representatives. General Steel then made unilateral proposals to PolyRock' predecessors, s and later PolyRock, for a licensing arrangement, on a take-it or leave-it basis. G nr Sel uit a pooa d ntl d t a ar d ee l t ' n a r rpsl i o e o n ge -upon a e s le l s d a e licensing arrangement. When PolyRock' peeesr and later, s r cs s d o PolyRock, attempted to negotiate the terms that General Steel sought to impose, General Steel repeatedly threatened that absent agreement to the business terms it demanded, General Steel would utilize the Proprietary Technology to manufacture products without a license. Unfortunately, General Steel made good on its threats. Having learned confidential aspects of the Proprietary Technology, General Steel, with the participation and assistance of the other defendants, commenced the commercial manufacture and distribution of products based upon such confidential information. General Steel also used, without authorization o cnetm ren m t isht oy oks r eesr prepared to r osn a t g a r lt P l c' pe cs s , ki ea a R d o 2

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

Document 32

Filed 07/07/2005

Page 3 of 11

sell products manufactured using the Proprietary Technology. PolyRock has also learned of a likelihood that General Steel disclosed the Proprietary Technology to others, also in violation of its contractual undertakings and legal obligations. PolyRock seeks damages misappropriation of its rights. b. Defendants: and injunctive relief against the

Defendants have not yet answered in this case because the Plaintiff failed to prosecute the case. Defendants have requested that the case be dismissed with prejudice pursuant to Rule 41(b). In this scheduling order, Defendants are requesting the court to stay discovery regarding any issues other than those related to the Defendan ' t no i i . t Mo o tDs s s i m s Viewed on the jurisdictional grounds this case should be dismissed. The only grounds for federal court jurisdiction are two Lanham Act claims which have no basis in fact or law. T e in bs frh Pa tf c i o sc hr s o ai o t ln fs lm feondary e s e i i' a meaning. Originally this case was filed as a patent case but the Plaintiff dismissed the patent claim leaving only the Lanham Act claims as a basis for jurisdiction Viewed on substantive grounds this case should be dismissed because the Defendants have not infringed any intellectual property rights of the Plaintiff. In fact, the Plaintiff dismissed its patent claim and does not have any legitimate trade secret rights. The existence of the patent which was the original centerpiece of the lawsuit for l e t Pa tf c i s fr e er it sm m tr If e o sh ln fs lm o t d sc tnh a e ae . c s e i i' a a e e ts Plaintiff arguably had any trade secret rights they would have been waived by their failure to take reasonable steps to enforce those rights. The Defendants deny all of the claims asserted by the Plaintiff. This case is frivolous and if the case is not dismissed, the Defendants anticipate asserting counterclaims and sanctions as a result of having to defend it.

3. UNDISPUTED FACTS The following facts are undisputed: a. Defendant General Steel Domestic Sales, LLC, d/b/a/ General Steel Corporation, is a Colorado limited liability company. b. Defendant Chuck Demarest is a Colorado resident.

3

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

Document 32

Filed 07/07/2005

Page 4 of 11

4. COMPUTATION OF DAMAGES a. Plaintiff

PolyRock does not have adequate information at this time to determine the extent or amount of damages that it will seek in this action.P l oks eio i t sea o R c'dc i n h r r y sn i gd wldpn uo t nt eadet t f e nat m sprpii o P l oks i eed pn h a r n x n o df dn ' i por t n f oy c' l e u e e s a ao R intellectual property, including its trade secrets. PolyR c ati t t tt t et ttek dm gs ae uo df dn ' ok n c a sh ,o h x n ises a ae bsd pn e nat ip e a e e e s misappropriation and use of its trade secrets, it m yse t r oe df dn ' rfs a ek o e vr e nat poi c e s t from their misappropriation or a r snb ryl fr e nat ue f Proprietary e oal oay o df dn ' s o the a e t e s Technology. In the event that PolyRock seeks a reasonable royalty, it anticipates that such damages will take into consideration all relevant facts and circumstances including, without limitation: t et t f e nat ue r i l ue f o R c'Proprietary h x n o df dn ' s o d c sr o P l oks e e e s so y Technology; t u ly ui ees n bnfs ele t og t ue f o R c' h ti , n uns ad ee tr i d h uh h s o P l oks e it q i az r e y Proprietary Technology; df dn ' a s f rdc m nf t e ui P l oks e nat sl o pout aua u d s g oy c' e s e s cr n R Proprietary Technology; the t m o P l oks gem n wt gni licensees and e s f oy c'ar et i eu r R e s h ne royalty rate that PolyRock receives from such genuine licenses for use of the Proprietary Technology; the current and former relationship between PolyRock and defendants and the wlu nt e f e nat m sprpii adue t p ifl a r o df dn ' i por t n n s;h rojected future harm to l u e s a ao e P l okf m df dn ' i prpii add c sr o P l oks o R c r e nat m s por t n n i l ue f oy c' Proprietary y o e s a ao so R Technology; defendants'profitability from sales of products manufactured utilizing P l oksProprietary Technology; and any additional relevant factors that become o R c' y apparent during or through discovery. In addition to the above factors, deterrence of df dn ' ifl i prpii a o ut e at e i o n r snb ryl o e nat wlu m s por t n l m sb f o d n ay e oal oay r e s l a ao s cr t a e t comparable damages that PolyRock seeks. PolyRock further anticipates that it will seek exemplary damages and, to the et trv e b l , s t re'f s n cs i ur it s co. x npoi d ya i aonyse ad ot n r dnh at n e d w t t e s c e i i b. Defendants

The Defendants will seek attorneys fees, costs and sanctions for having to defend this meritless case. Furthermore, if the case is not immediately dismissed the Defendants may assert appropriate Counterclaims.

5. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. b. Date of rule 26(f) meeting: June 21, 2005. Names of each participant and party he/she represented. The following counsel participated in the Rule 26(f) conference in this matter:

4

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

Document 32

Filed 07/07/2005

Page 5 of 11

John A. DeSisto, Featherstone DeSisto LLP, 600 17th Street, #2400, Denver, CO 80202, Telephone: 303 626-7100, Attorney for PolyRock Technologies, LLC; Kurt S. Lewis, Lewis Scheid LLC, 2300 15th Street #320, Denver, CO 80202, Telephone: 303 534-5040, Attorney for General Steel Domestic Sales, LLC; Genstone Enterprises, LLC and Jeff Knight; David S. Fein, Davis S. Fein, P.C., 2316 Main Street, Littleton, CO 80120, Telephone: 303 854-0234, Attorney for General Steel Domestic Sales, LLC; Genstone Enterprises, LLC and Jeff Knight; and Susan M. Hargleroad, Pendleton, Friedberg, Wilson & Hennessey, P.C., 1875 Lawrence Street, 10th Floor, Denver, CO 80202, Telephone: 303 839-1204, Attorney for Charles Demarest. c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1). Pa tf psi : o hne. ln fsre i R l2 d c sr on ln fs oio N cags Pa tfe d t u 6 i l ues i i' tn ii v s e so July 5, 2005. D f dn ' oio: e nat psi Defendants propose that Rule 26 (a) (1) disclosures be e s tn made fourteen days after the Motion to Dismiss is denied, if necessary. d. Statement as to when rule 26(a)(1) disclosures were made or will be made. See above. e. Statement concerning any agreements to conduct informal discovery, including joint interviews with potential witnesses, exchanges of documents, and joint meetings with clients to discuss settlement. If there is agreement to conduct joint interviews with potential witnesses, list the names of such witnesses and a date and time for the interview which has been agreed to by the witness, all counsel, and all pro se parties. The parties do not currently anticipate conducting informal discovery. 6. CONSENT All parties have not consented to the exercise of jurisdiction of a Magistrate Judge. 7. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings:

5

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

Document 32

Filed 07/07/2005

Page 6 of 11

Pa tf pooa August 26, 2005 ln fs rpsl i i' : D f dn ' rpsl September 15, 2005 e nat pooa e s : b. Discovery Cut-off: Pa tf pooa Ma h 120, for all nonexpert discovery. ln fs rpsl r 3,06 i i' : c D f dn ' rpsl D f dn pooeo i r td cvr, i a i tl e nat pooa e nat rps tb uc e i oe wt n n i e s : e s f a s y h ia period of forty-five days in which discovery will be limited to discovery relating to the sb c stoti df dn ' t n o E pd e Dsoe , ev T S pl et uj t efr n e nat Mo o F r xeid i vr L ae o up m n es h e s i t c y e D f dn ' t n o i i A d o AH a n fe Ma 3,05fl w di e nat Mo o T Ds s n F r er g id y 120,o o e, e s i m s i l l f ncs r a et C ut dc i o t Mo o tDsmiss, by a period of merits ees y f rh ors eio nh a t e ' sn e t no i i discovery. That merits discovery would be scheduled following a determination of the Motion to Dismiss. D f dn s rpslf i oe intt e: ee br ,05 o a e nat pooaid cvr s o s yd D cm e120 fr l e ' s y a l nonexpert discovery. c. Dispositive Motion Deadline: Pa tf pooa A r 3,06 ln fs rpsl pi 020 i i' : l D f dn ' rpsl If discovery is not stayed January 16, 2006. e nat pooa e s : d. Expert Witness Disclosure (1) State anticipated fields of expert testimony, if any. Plaintiff: Plaintiff anticipates offering expert testimony on the nature, utility and benefits of its proprietary processes, the harm to plaintiff and its business through misappropriation of such processes and damages. Defendants: Defendants have been unable to ascertain what trade secret is being claimed by the Plaintiff and therefore are limited in determining what experts might be relevant. Defendants would have rebuttal experts as well as a damage expert regarding the damages caused by the Plaintiff to the Defendants. (2) State any limitations proposed on the use or number of expert witnesses. Plaintiff: Plaintiff proposes a limit of four experts per side, subject to modification for good cause. Defendants: Defendants are unable to ascertain the number of necessary experts because the Plaintiff cannot articulate the nature of their trade secrets.

6

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

Document 32

Filed 07/07/2005

Page 7 of 11

(3) The parties shall designate all experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before: Plaintiff proposes April 15, 2006. Defendant proposes that Plaintiff designate expert witnesses by October 3, 2005 and the Defendants designate any experts by December 15, 2005. (4) The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before: Plaintiff proposes May 15, 2006. Defendant proposes February 1, 2006 if the matter is not stayed pending decision on the Motion to Dismiss. (5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court. e. Deposition Schedule: Due to their differences with respect to the proposed schedule for and form of discovery, the parties have not yet established a deposition schedule. Plaintiff anticipates that it will depose individual defendants Knight, Kissire and Demarest. Plaintiff likely will conduct a Rule 30(b)(6) deposition of each defendant entity. Plaintiff anticipates that it will take deposition discovery from t s f iawtdf dn ' rdc ad auat i poesssc h ea lr i e nat pout n m nf u n rcs ;uh o mi h e s s c rg e witnesses will have to be identified through written discovery. Defendants propose staying the substantive discovery and taking the Rule 30(b)(6) deposition of Plaintiff o i use t go h D f dn ' t n o ns e r an t t e nat Mo o t s li e e s i Dismiss f. Interrogatory Schedule Pa tf pooa T e a i sa sre n i e oa r s n r e r ln fs rpsl h pre hl e ayn r gt i o o bf e i i' : ts l v tr o e o February 24, 2006. D f dn s rpsl That Interrogatories be served on or before September 15, e nat pooa e ' : 2005. g. Schedule for Request for Production of Documents

7

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

Document 32

Filed 07/07/2005

Page 8 of 11

Pa tf pooa T e a i sa sre n r us fr rdco o o ln fs rpsl h pre hl e ay e et o pout n n r i i' : ts l v q s i before February 24, 2006. Defendn s rpsl : That Requests for Production be served on or before at pooa ' : September 15, 2005. h. Discovery Limitations: (1) Any limits which any party wishes to propose on the number of depositions. Any limits which any party wishes to propose on the length of depositions. Modifications which any party proposes on the presumptive numbers of depositions or interrogatories contained in the federal rules. Limitations which any party proposes on number of requests for production of documents and/or requests for admissions.

(2) (3)

(4)

Pa tf psi : ln fpooe t fl wt peu p v l it n o t ln fs oio Pa tf rpsso o o h r m t ei ti s fh i i' tn ii l e s i m ao e federal rules but does not propose any further limitations on the type or amount of discovery that may be taken. (5) Other Planning or Discovery Orders

Defendants propose the stay on discovery previously set forth above. 8. SETTLEMENT Counsel certify that they have discussed the possibility of settlement. 9. OTHER SCHEDULING ISSUES a. A statement of those discovery or scheduling issues, if any, on which counsel, after a good-faith effort, were unable to reach an agreement. As reflected above, the parties disagree concerning the structure (i.e., whether to bifurcate) and schedule for discovery. b. Anticipated length of trial and whether trial is to the court or jury. Plaintiff has requested a jury trial on all matters so triable. Plaintiff anticipates that a full trial on all merits issues will require approximately seven trial days.

8

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

Document 32

Filed 07/07/2005

Page 9 of 11

10. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on________________________ at ______ o'clock __.m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. () Pro se parties and attorneys only need be present. () Pro se parties, attorneys, and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.) Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______________ outlining the facts and issues in the case and the party's settlement position. b. Status conferences will be held in this case at the following dates and times:

c. A final pretrial conference will be held in this case on __________________at _____ o'clock __.m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties.

9

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

Document 32

Filed 07/07/2005

Page 10 of 11

12. AMENDMENTS TO SCHEDULING ORDER This Scheduling Order may be altered or amended only upon a showing of good cause.

10

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

Document 32

Filed 07/07/2005

Page 11 of 11

DATED this ______ day of _____________ 2005. BY THE COURT:

United States Magistrate Judge APPROVED: s/John A. DeSisto John A. DeSisto, FEATHERSTONE DESISTO LLP 600 17th Street, #2400 Denver, CO 80202 Telephone: 303 626-7100 Facsimile: 303 626-7101 e-mail: [email protected] Attorney for Plaintiff PolyRock Technologies, LLC s/Kurt Lewis Kurt S. Lewis LEWIS SCHEID LLC 2300 15th Street #320 Denver, CO 80202 Telephone: 303 534-5040 Facsimile: e-mail: David S. Fein DAVIS S. FEIN, P.C. 2316 Main Street Littleton, CO 80120 Telephone: 303 854-0234 Facsimile: e-mail: Attorneys for Defendants General Steel Domestic Sales, LLC; Genstone Enterprises, LLC and Jeff Knight;

s/Susan M. Hargleroad Susan M. Hargleroad PENDLETON, FRIEDBERG, WILSON & HENNESSEY, P.C. 1875 Lawrence Street, 10th Floor Denver, CO 80202 Telephone: 303 839-1204 Facsimile: e-mail: Attorney for Defendant Charles Demarest.

11