Free Amended Complaint - District Court of California - California

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 1 of 38

1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 DARREN J. ROBBINS (168593) RANDALL J. BARON (150796) 3 A. RICK ATWOOD, JR. (156529) 655 West Broadway, Suite 1900 4 San Diego, CA 92101 Telephone: 619/231-1058 5 619/231-7423 (fax) [email protected] 6 [email protected] [email protected] 7 ­ and ­ JOHN C. HERMAN 8 RYAN K. WALSH JOSEPH BENZ III 9 JASON S. JACKSON 3424 Peachtree Road, N.E. 10 Suite 1650 Atlanta, GA 30326 11 Telephone: 404/504-6500 404/504-6501 (fax) 12 [email protected] [email protected] 13 [email protected] [email protected] 14 Attorneys for Plaintiff 15 UNITED STATES DISTRICT COURT 16 SOUTHERN DISTRICT OF CALIFORNIA 17 CARY A. JARDIN, ) No. 08-CV-1462-IEG-RBB 18 ) Plaintiff, ) FIRST AMENDED VERIFIED COMPLAINT 19 ) FOR VIOLATION OF 35 U.S.C. §101, ET vs. ) SEQ. 20 ) DATALLEGRO, INC. and STUART FROST, ) 21 ) Defendants. ) 22 ) ) DEMAND FOR JURY TRIAL 23 24 25 26 27 28

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 2 of 38

1

Plaintiff Cary A. Jardin ("Jardin") hereby makes this First Amended Verified Complaint

2 against defendants Datallegro, Inc. and Stuart Frost ("Frost") (collectively referred to as 3 "Defendants") and in support hereof respectfully shows the Court as follows: 4 5 1. PARTIES Plaintiff Cary Jardin is resident of California, residing at 14580 Hidden Knoll Road,

6 Poway, California 92064. 7 2. Defendant Datallegro, Inc. is a Delaware corporation, having its principal place of

8 business at 85 Enterprise, Second Floor, Aliso Viejo, California 92656. Datallegro was served with 9 the Complaint on August 12, 2008, through its Agent for Service of Process, Greg Williams, at 85 10 Enterprise, Second Floor, Aliso Viejo, California 92656. 11 3. Defendant Frost is a resident of the State of California and was served with the

12 Complaint on August 13, 2008, at 30 High Bluff, Laguna Niguel, California 92656. 13 14 4. JURISDICTION AND VENUE This is an action for patent infringement arising under the patent laws of the United

15 States, 35 U.S.C. §101 et seq. 16 5. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C.

17 §§1331 and 1338(a). 18 6. Defendants are subject to this Court's specific and general personal jurisdiction

19 because they are residents of the State of California and, pursuant to due process and/or the 20 California Long Arm Statute, due at least to their substantial business in this forum, including: (i) at 21 least a portion of the infringements alleged herein; and (ii) regularly doing or soliciting business, 22 engaging in other persistent courses of conduct, and/or deriving substantial revenue from goods and 23 services provided to individuals in California and this Judicial District. 24 7. Venue is proper in this Court pursuant to 28 U.S.C. §§1391 and 1400(b). Defendants

25 have done business in this Judicial District, committed acts of infringement in this District, and 26 continue to commit acts of infringement in this Judicial District, all of which entitle plaintiff to 27 relief. 28 -208-CV-1462-IEG-RBB

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 3 of 38

1 2 8.

BACKGROUND OF DISPUTE U.S. Patent No. 7,177,874 (the "`874 Patent"), entitled "System and Method for

3 Generating and Processing Results Data in a Distributed System," was duly and legally issued on 4 February 13, 2007 by the U.S. Patent and Trademark Office ("USPTO"). Jardin is the sole inventor 5 of the `874 Patent and is the owner of all rights thereunder by virtue of assignment duly filed with 6 the USPTO. A copy of the `874 Patent is attached hereto as Exhibit A. 7 9. Defendant Frost was employed at Jardin's company XPrime as the Chief Executive

8 Officer for a brief period of time in 2003. At this time, Jardin had invented and filed a patent 9 application for the novel technology described in the `874 Patent in the area of distributed database 10 architecture. 11 10. As the Chief Executive Officer, defendant Frost had access to confidential

12 information and documents from Jardin and other XPrime employees. 13 11. Shortly after leaving XPrime, defendant Frost attempted to convert Jardin's

14 inventions to his own by filing with the USPTO patent applications in the distributed database 15 architecture field, the same subject matter as Jardin's intellectual property. 16 12. At Datallegro, defendant Frost used and incorporated Jardin's intellectual property

17 into Datallegro's products. These actions were taken to benefit both defendant Frost and his newly18 formed company, defendant Datallegro. Defendants' unauthorized use of Jardin's intellectual 19 property continues to this day. 20 21 22 13. COUNT I Patent Infringement Plaintiff restates and realleges the allegations set forth in ¶¶1-12 of this First

23 Amended Verified Complaint and incorporates them herein by reference. 24 14. Plaintiff is the sole owner of the entire right, title, and interest in the `874 Patent,

25 including the right to seek past damages. 26 15. Defendants have infringed, continue to infringe, and unless enjoined will continue to

27 infringe one or more claims of the `874 patent, directly, contributorily, and/or by inducement, by 28 making, using, selling, and/or offering for sale in this country, and/or importing into this country, -308-CV-1462-IEG-RBB

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 4 of 38

1 and inducing others to use, without license, certain products and/or services that consist of and/or 2 incorporate the methods and/or apparatus disclosed in the `874 Patent, in violation of 35 U.S.C. 3 §271. 4 16. Defendants' acts of infringement of the `874 Patent have caused damage to Jardin,

5 and Jardin is entitled to recover from Defendants the damages sustained by Jardin as a result of its 6 wrongful acts in an amount subject to proof at trial. The infringement of Jardin's exclusive rights 7 under the `874 Patent by Defendants will continue to damage Jardin, causing irreparable harm, for 8 which there is no adequate remedy at law, unless enjoined by this Court. 9 10 11 17. COUNT II Willful Infringement Jardin restates and realleges the allegations set forth in ¶¶1-15 of this First Amended

12 Verified Complaint and incorporates them herein by reference. 13 18. As set forth herein, Defendants had access to and copied Jardin's inventions as

14 disclosed in the `874 Patent, without authorization. 15 19. Defendant Frost, while employed as the Chief Executive Officer of XPrime, had

16 direct access to plaintiff's intellectual property. 17 20. Defendant Frost, after leaving the employment of XPrime, used and incorporated

18 plaintiff's intellectual property in products sold by his new company, defendant Datallegro, without 19 the authorization of plaintiff or XPrime. 20 21. Defendants had actual or constructive knowledge of the `874 Patent, yet continue to

21 infringe this patent to this very day. As a result of Defendants' intentional copying and other 22 actions, the infringement of the `874 Patent by Defendants is willful and deliberate, entitling Jardin 23 to increased damages under 35 U.S.C. §284 and to attorneys' fees and costs incurred in prosecuting 24 this action under 35 U.S.C. §285. 25 26 27 PRAYER FOR RELIEF WHEREFORE, plaintiff prays for the following relief against Defendants: A. A judgment that Defendants have directly infringed the `874 Patent, contributorily

28 infringed the `874 Patent, and/or induced infringement of the `874 Patent; -408-CV-1462-IEG-RBB

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 5 of 38

1

B.

An award of all damages recoverable from Defendants, jointly and severally, under

2 the laws of the United States and the laws of the State of California in an amount to be proven at 3 trial; 4 C. An award of treble damages against Defendants, jointly and severally, as a result of

5 their willful infringement; 6 D. A preliminary, and thereafter permanent, injunction enjoining and restraining

7 Defendants and Datallegro's officers, directors, agents, servants, employees, attorneys, and all others 8 acting under, by or through them, from directly infringing, contributorily infringing, and inducing 9 the infringement of the `874 Patent, as set forth herein; 10 E. A judgment and order requiring Defendants, jointly and severally, to pay plaintiff's

11 pre-judgment and post-judgment interest on the full amounts of the damages awarded; 12 F. A judgment requiring Defendants, jointly and severally, to pay the costs of this action

13 (including all disbursements) and attorneys' fees as provided by 35 U.S.C. §285, with prejudgment 14 interest; and 15 16 17 G. Such other and further relief as this Court may deem just and equitable. DEMAND FOR JURY TRIAL Plaintiff hereby demands that all issues so triable be determined by a jury. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP DARREN J. ROBBINS RANDALL J. BARON A. RICK ATWOOD, JR.

18 DATED: August 22, 2008 19 20 21 22 23 24 25 26 27 28

s/ A. Rick Atwood, Jr. A. RICK ATWOOD, JR. 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax)

-5-

08-CV-1462-IEG-RBB

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 6 of 38

1 2 3 4 5 6

COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN C. HERMAN RYAN K. WALSH E. JOSEPH BENZ III JASON S. JACKSON 3424 Peachtree Road, N.E., Suite 1650 Atlanta, GA 30326 Telephone: 404/504-6500 404/504-6501 (fax) Attorneys for Plaintiff

7
S:\CasesSD\Jardin_Datallegro IP\Cpt Amended Jardin.doc

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -608-CV-1462-IEG-RBB

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 7 of 38

1 2

VERIFICATION I, Cary A. Jardin, a citizen of the United States and a resident of the State of California,

3 having read the foregoing First Amended Verified Complaint, declare under penalty of perjury under 4 5 6 7 8 9 10 11
C:\DOCUME~1\JJackson\LOCALS~1\Temp\1b\MetaSave\Jardin First Amended Complaint.doc

the laws of the United States of America that the foregoing factual statements are true and correct to the best of my knowledge and belief. __________________________________ CARY A. JARDIN

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT

-7-

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 8 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 9 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 10 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 11 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 12 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 13 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 14 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 15 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 16 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 17 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 18 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 19 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 20 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 21 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 22 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 23 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 24 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 25 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 26 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 27 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 28 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 29 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 30 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 31 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 32 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 33 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 34 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 35 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 36 of 38

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 37 of 38

1 2 3

DECLARATION OF SERVICE BY UPS DELIVERY I, the undersigned, declare: 1. That declarant is and was, at all times herein mentioned, a citizen of the United States

4 and a resident of the County of San Diego, over the age of 18 years, and not a party to or interested 5 party in the within action; that declarant's business address is 655 West Broadway, Suite 1900, San 6 Diego, California 92101. 7 2. That on August 22, 2008, declarant served by UPS, next day delivery, the FIRST

8 AMENDED VERIFIED COMPLAINT FOR VIOLATION OF 35 U.S.C. §101, ET SEQ. to the 9 parties listed on the attached Service List. 10 I declare under penalty of perjury that the foregoing is true and correct. Executed this 22nd

11 day of August, 2008, at San Diego, California. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 08-CV-1462-IEG-RBB s/ Alison K. Sloan ALISON K. SLOAN

Case 3:08-cv-01462-IEG-RBB

Document 5

Filed 08/22/2008

Page 38 of 38

JARDIN-DATALLEGRO IP Service List - 8/22/2008 (08-0158) Page 1 of 1 Counsel For Defendant(s) Greg Williams General Counsel Datallegro, Inc. 85 Enterprise, 2nd Floor Aliso Viejo, CA 92656 Stuart Frost Pro Per 30 High Bluff Laguna Niguel, CA 92656

Counsel For Plaintiff(s) John C. Herman Ryan K. Walsh E. Joseph Benz III Coughlin Stoia Geller Rudman & Robbins LLP 3424 Peachtree Street, N.E., Suite 1650 Atlanta, GA 30326 404/504-6500 404/504-6501(Fax) Darren J. Robbins Randall J. Baron A. Rick Atwood Coughlin Stoia Geller Rudman & Robbins LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 619/231-1058 619/231-7423(Fax)