Free Motion for New Trial - District Court of Arizona - Arizona

Stephen T. Sullivan (#016038) ROBERTS, MLOTKOWSKI & HOBBES, P.C. 1850 North Central Avenue Suite 1140 Phoenix, Arizona 85004-4586 Telephone: (602) 956-6161 Attorneys for Plaintiff Desert Extrusion Corp. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Desert Extrusion Corp., an Arizona corporation, Plaintiff, vs. K2, Inc., a California corporation, and Shakespeare Company Monofilament Division, a division of K2, Inc.; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 02-02180-PHX-JAT PLAINTIFF'S MOTION UNDER RULES 59 AND 60 FOR MODIFICATION OF ORER AND RELIEF FROM JUDGMENT Oral Argument Requested

Plaintiff Desert Extrusion Corp hereby moves the Court under Fed. R. Civ. P. 59 for modification of the Court's Order of September 23, 2005 (hereinafter the "Order"), or for a new trial under that rule, and for vacation of the Judgment entered by the Clerk on September 23, 2005 (hereinafter the "Judgment"). Desert Extrusion also moves the Court under Fed. R. Civ. P. 60 for relief from the Order and the Judgment.

Case 2:02-cv-02180-JAT

Document 89

Filed 10/07/2005

Page 1 of 4

Desert Extrusion requests that the Court vacate its holding of summary judgment of non-infringement in favor of Defendants under the doctrine of equivalents as to Defendants' method used to make its Exhibit 500 product. It further requests that the Court grant summary judgment of infringement as to that method, or in the alternative, rule that summary judgment is unavailable to either party on that infringement issue based on genuine issues of material fact. Desert Extrusion also requests that the Court vacate the Judgment. The Order does not dispose of all issues in the case, and the Order is not a "final judgment." In addition, presuming the Court grants the Rule 59 motion, remaining issues, such as infringement and/or Plaintiff's remedy will require resolution. This Motion is supported by the concurrently filed Memorandum of Points and Authorities in Support of Plaintiff's Motion Under Rules 59 and 60, Plaintiff's moving papers filed by it in connection with its Motion for Summary Judgment of Infringement, including supporting documents, the pleadings, papers and other documents of record in the case, by any further evidence offered by Plaintiff at any hearing on the Motion, and on such other matters as may be allowed by the Court. Dated this 7th day of October, 2005. Respectfully submitted,

By

S / Stephen T. Sullivan Stephen T. Sullivan ROBERTS, MLOTKOWSKI & HOBBES, P.C. 1850 North Central Avenue Suite 1140 Phoenix, Arizona 85004-4586

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Attorneys for Plaintiff Desert Extrusion Corp.

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CERTIFICATE OF SERVICE It is hereby certified that the PLAINTIFF'S MOTION UNDER RULES 59 AND 60 FOR MODIFICATION OF ORER AND RELIEF FROM JUDGMENT was served upon Defendants at the address listed below on this 7th day of October, 2005: By first class mail, postage prepaid, to: Lawrence D. Graham, Esq. David A. Lowe, Esq. BLACK LOWE & GRAHAM PLLC 701 Fifth Avenue, Suite 4800 Seattle, WA 98104 Todd Feltus, Esq. SNELL & WILMER LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202

___S / Stephen T. Sullivan ________

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