Free Motion for Attorney Fees - District Court of Arizona - Arizona

l has regarding design features, (3) customer purchase and rental information, (4) rental rates,
2 (5) the useful life of a True Center gate, and (6) manufacturing and design details.
3 Opp’n at 2 l . Plaintiff acknowledges that this information must derive independent economic
` 4 value from not being generally known to constitute trade secrets under the Act. Id. at 22.
5 Plaintiff asserts that, "[if] not obvious, this infonnation is extremely valuable to an entity
6 entering the gate making business because it provides a road map" to competitors. Id.
7 Plaintiff cannot rely on mere assertions. In response to Defendants’ motions for
8 summary judgment, Plaintiff must come forward with specific evidence to support its claims.
9 Failure to do so will result in summary judgment. Celorex, 477 U.S. at 322.
I0 Plaintiff has presented no evidence in support of its assertion regarding trade secrets.
I l Specifically, Plaintiff has not provided documents or other evidence showing what the
12 alleged secret information includes. See Reply at I3. Nor has Plaintiff come forward with
l 3 evidence to support its allegation that the"information confers upon it an economic advantage
l4 over others in the industry." Enter. Leasing C0. of Phoenbc, 3 P.3d at 1l 20; see A.R.S. § 44-
1 5 401(4)(a). The Court will grant the motions for summary judgment with respect to the eighth
16 cause of action because Plaintiff has presented no evidence of any trade secrets. See Weins
17 v. Sporleder, 569 N.W.2d 16, 20-26 (S.D. 1997) (finding no trade secret as a matter of law
18 in part because the plaintiff presented insufficient evidence that its product had independent
l9 economic value from not being readily ascertainable by proper means).
20 7. The Ninth Cause of Action: Slender.
21 Plaintiff alleges in the ninth cause of action that 0’Com1or and Donald Kammerzell
22 slandered Plaintiff by falsely stating to a vendor that Plaintiff had financial difficulties and
23 could not timely pay its bills. 2nd Supp. Cornpl. 1]'|| 107-08. Defendants argue that the
24 slander claim fails as a matter of law in part because Plaintiff has presented no evidence that
25 either O’Connor or Kammerzell made a such a statement.
26 Plaintiff contends that whether "Kammc1zell and/or . . . O’Connor made slanderous
27 statements is a classic issue of fact.” Resp. at 26. Plaintiff states that it disputes whether
28 payments to O’Connor were untimely and that Kammerzell has testified inconsistently as to
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I whether Plaintiff was late with payments or completing portions of a gate. Id.; SOF
2 1|1l 34-35). But Plaintiff has presented no admissible evidence that either O’Connor or
· 3 Kammerzell made any slanderous statement. See Pl.’s SOF Ex. D (Fleming Dep. Vol. ll at
4 161:1-6); Defs.’ SOF 1] 80, Ex. E (Russ Dep. at 103: 1-24); O’Connor SOF'|[ 12, Exs. 2-4.
5 The Court will accordingly grant sununary j udgment with respect to the ninth cause of action.
6 8. The Tenth Cause of Action: Conversion.
7 Plaintiff alleges in the tenth cause of action that O’Connor unlawfully took and
8 converted to his own use three of Plaintiff s business tiles. 2nd Supp. Comp!. 1|1l 114-16.
` 9 O’Connor has testified that he did not take the tiles. O’Connor SOF 1] 14, Ex. 1 1l 10.
10 Plaintiffs representatives have testified that they have no information that O’Connor took
11 the tiles. Id. 1] 15, Exs. 2-4.
I2 Without citing any evidence or legal authority, Plaintiff contends that a jtuy could
13 reasonably infer that O’Connor took the tiles because he had a motive and access and also
14 took photographs of Plaintiffs gates. Resp. at 4. The Court disagrees. Given Plaintiffs
15 lack of evidence and O’Connor’s testimony that he did not take the tiles, a jury could not
16 reasonably conclude that O’Connor converted the files. The Court will accordingly giant
17 O’Connor’s motion for summary judgment with respect to the tenth cause of action.
18 9. The Eleventh and Twelfth Causes of Action: Declaratory Relief.
19 Plaintiff alleges in the eleventh and twelfth causes of action that the ‘201 and ‘094
20 Patents are invalid. 2nd Supp. Compl.1]1] 1 18-46. Plaintiff alleges invalidity on numerous
21 grounds pursuant to 35 U.S.C. §§ 101, 102, 103, and 112. Id.1l1[ 126, 140. Plaintiff further
‘ 22 alleges that the patents are invalid based on the app1icants’ inequitable conduct before the
23 PTO. Id. '|]•|l 127, 140.
24 K-Zell argues that its patents are presumed valid and that Plaintiff CBIIIIOI meet its
25 burden of proving invalidity by clear and convincing evidence. Mot. at 26. K—Ze11 notes that
26 the presumption of validity is not lessened when a plaintiff relies on prior art references that
27 were not before the PTO. Id at 27.
28
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U 1 1 As discussed above with respect to Plaintiff s motion for partial summary judgment,
2 there are genuine issues of material fact as to whether the patent applicants intended to
3 deceive the PTO during the prosecution of the ‘20l Patent. Plaintiff has also presented
4 evidence that gates were built in the manner described in the ‘094 Patent before it was issued,
5 creating a genuine issue of material fact as to whether the patent applicants committed
6 inequitable conduct during the prosecution of the ‘094 Patent. Pl.'s SOF1| 37. The Court
7 will deny the motion for sununary judgment with respect to the eleventh and twelfth causes l
8 of action because on the record before it the Court cannot find that the ‘20l and *094 Patents
9 are valid as a matter of law.
10 {T IS ORDERED:
l l 1. Defendant K-Zell Metals’ motion to dismiss (Doc. #90-2) is denied.
12 2. Plaintiff True Center Gate Leasing’s motion for partial summary judgment
I3 (Doc. #84) is denied.
14 3. Defendants K—Zell Metals’ and Donald and Barbara Kam1nerzell’s motion for
15 sumtuary judgment (Doc. #90-l) is granted in part and denied in part as set forth in this
16 order.
17 4. Defendant Mike O’Connor’s motion for summary judgment (Doc. #92) is
18 granted.
19 5. Defendant Sonoran Gate is granted summary judgment with respect to the tirst,
20 second, third, and eighth causes of actionon the basis of its joinder in other motions.
21 6. By separate order the Court will set a pretrial conference with respect to the
22 causes of action against Defendant Sonoran Gate and the eleventh and twelfth causes of
23 action against Defendant K-Zell Metals.
24 DATED this 3 lst day of March, 2005. i
25
26 _>a..../é dag
27 Unifgdvdihgs ¥udge
28
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