Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00385-DMS-NLS

Document 17

Filed 07/25/2008

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Paul Adams (Bar No. 42,146) THE ADAMS LAW FIRM California Address 550 West C Street, Suite 2000 San Diego, California 92101 Telephone: 619-241-4810 Facsimile: 619-955-5318 Paul Adams THE ADAMS LAW FIRM 901 Rio Grande Blvd. NW, Suite H262 Albuquerque, NM 87104 Telephone: 505-222-3145 Facsimile: 505-222-3147 [email protected] Attorneys for Plaintiff

10 11 12 13 JOON PARK, an individual, 14 Plaintiff, 15 v. 16 17 18 19 20 21 22 23 24 25 26 27 28 CAS ENTERPRISES, INC., an Iowa Corporation d/b/a KREG TOOL COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No.: 08-cv-0385 DMS/NLS PLAINTIFF'S NOTICE OF MOTION AND MOTION TO DISMISS ONE DECLARATORY JUDGMENT COUNTERCLAIM FOR LACK OF CASE OR CONTROVERSY AND TO STRIKE CERTAIN AFFIRMATIVE DEFENSES AND DISMISS CERTAIN COUNTERCLAIMS Hearing: September 19, 2008 Time: 1:30 p.m. Place: Courtroom 10 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

PLEASE TAKE NOTICE that on September 19, 2008, at 1:30 p.m. or as soon thereafter as Plaintiff's Motion may be heard, Plaintiff will present this Motion to Dismiss One Declaratory Judgment Counterclaim for Lack of Case or Controversy and to Strike Certain Affirmative Defenses and Dismiss Certain Counterclaims before the Honorable Dana M. Sabraw, Judge of the United States District Court for the Southern District of California in Courtroom 10, located at 940 Front Street, San Diego, California. Plaintiff's motion is based on the following facts and law:

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Case 3:08-cv-00385-DMS-NLS

Document 17

Filed 07/25/2008

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Plaintiff moves the Court pursuant to FRCP Rule 12(b)(1) for an Order dismissing Defendant's counterclaim for declaratory judgment with respect to U.S. Patent No. 7,374,373 (the `373 patent) on the grounds of lack of a justiciable controversy that deprives this Court of subject matter jurisdiction. Plaintiff further moves the Court pursuant to Rule 12(b)(6) and/or 12(f) to strike the allegations of inequitable conduct as failing to comply with Rule 9(b). These allegations are asserted in Defendants's Eighth and Ninth Affirmative Defenses and Defendant's Third Counterclaim for declaratory judgment of inequitable conduct. Based on this Motion and Plaintiff's Memorandum in Support, it is respectfully submitted that the inequitable conduct defense (Eighth and Ninth Affirmative Defenses) should be stricken with no leave to amend and the corresponding counterclaim (Third Counterclaim) as to each of the three patents that are the subject of Defendants' declaratory judgment counterclaim should be dismissed with prejudice. Moreover, as to the `373 patent, the declaratory judgment counterclaims as to that patent should be dismissed for lack of subject matter jurisdiction. Dated this 25th day of July, 2008. Respectfully submitted, THE ADAMS LAW FIRM

s: Paul Adams Paul Adams, (Bar No. 42,146) 550 West C Street, Suite 2000 San Diego, California 92101 Telephone: 619-241-4810 Attorney for Plaintiff

By

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Case 3:08-cv-00385-DMS-NLS

Document 17

Filed 07/25/2008

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on July 24, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to: John L. Haller Susan Meyer Gordon & Rees LLP 101 West Broadway, Suite 1600 San Diego, CA 92101 [email protected] [email protected]

s: Paul Adams Paul Adams

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