Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00424-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CASS AND CREW INC., LLC, Plaintiff, v. MGI GRAPHICS, INC., Defendant. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 08- __________

JURY TRIAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT Plaintiff Cass and Crew Inc., LLC ("Cass") for its complaint against Defendant MGI Graphics, Inc. ("MGI") hereby demands a jury trial and alleges as follows: NATURE OF THE ACTION 1. This is a civil action for infringement of a United States Patent. This action is

based upon the patent laws of the United States, 35 U.S.C. § 1 et seq. THE PARTIES 2. Plaintiff is a limited liability company organized and existing under the laws of the

State of Delaware with an office and principal place of business at 5811 Kennett Pike, Wilmington, Delaware 19807. 3. Upon information and belief, Defendant is a corporation organized under the laws

of the State of Florida with a principal place of business located at 6709 114th Ave. North Suite #3, Largo, Florida 33773.

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JURISDICTION AND VENUE 4. This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331 and 1338(a). 5. Upon information and belief, MGI has transacted business and committed acts of

infringement within this State and District and is subject to the personal jurisdiction of this Court. 6. Upon information and belief, MGI has offered for sale and sold infringing products

within this District. 7. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400(b). COUNT I - INFRINGEMENT OF THE `557 PATENT 8. On July 8, 2008, the United States Patent and Trademark Office duly and legally

issued U.S. Patent No. 7,395,557 B1 ("the `557 Patent") entitled Seamless Upper Body Garment to Cass, as assignee of the inventor Susan D. Ledyard, as confirmed by a Confirmatory and Corrective Assignment, dated nunc pro tunc November 7, 2005 and recorded in the U.S. Patent and Trademark Office on July 9, 2008. The `557 Patent is in full force and effect. Cass is the legal owner of the `557 Patent and possesses all rights of recovery under the `557 Patent. A copy of the `557 Patent is attached hereto as Exhibit A. 9. 10. The `557 Patent is valid and enforceable. MGI has made, used, offered to sell, sold, contributed to the use by others of, or

induced the use by others of, and continues to make, use, offer to sell, sell, contribute to the use by others of, and induce the use by others of women's garments, including at least shapewear sold as "n-finiTM" or "n-finiTM shape" products.

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11.

MGI has infringed, and is still infringing, either literally or under the doctrine of

equivalents, at least one claim of the `557 patent in this District and elsewhere by making, using, importing, offering for sale, and/or selling its products, including at least its n-finiTM and n-finiTM shape products. 12. MGI has induced, and still is inducing, the infringement of the `557 patent in this

District and elsewhere by selling products, including at least its n-finiTM and n-finiTM shape products, that when used as intended by MGI, infringe at least one claim of the `557 patent, either literally or under the doctrine of equivalents. 13. MGI has contributed to, and still is contributing to, the infringement of the `557

patent in this District and elsewhere by selling products, including at least its n-finiTM and nfiniTM shape products, that are non-staple items that are not suitable for substantial noninfringing uses and that, when used as intended and directed by MGI, infringe at least one claim of the `557 patent, either literally or under the doctrine of equivalents. 14. 15. Cass has been damaged by MGI's infringement of the `557 patent. On information and belief, MGI will continue to infringe, actively induce others'

infringement, and/or contributorily infringe the `557 patent. Cass will thereby suffer irreparable injury, unless and until this Court enjoins MGI's infringement. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays this Court to: A. Enter a judgment that MGI has infringed, actively induced others to infringe,

and/or contributorily infringed the Patent-in-Suit;

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B.

Award Cass damages in an amount sufficient to compensate it for MGI's

infringement, active inducement of others' infringement, and/or contributory infringement of the Patents-in-Suit, but not less than a reasonable royalty; C. D. Award Cass prejudgment interest pursuant to 35 U.S.C. § 284; Enter a preliminary and permanent injunction enjoining MGI, its officers,

directors, servants, managers, employees, agents, attorneys, successors and assignees, and all persons in active concert or participation with any of them, from further acts of infringement of the Patent-in-Suit, pursuant to 35 U.S.C. § 283; E. Declare this case exceptional under 35 U.S.C. § 285 and award Cass its

reasonable attorneys' fees, expenses, and costs incurred in prosecuting this action; and F. Grant Cass such other and further relief as this Court may deem just and proper. JURY DEMAND Cass hereby demands a jury trial on all issues appropriately triable by a jury.

Dated: July 10, 2008 /s/ Mary B. Matterer Richard K. Herrmann #405 Mary B. Matterer #2696 Amy Arnott Quinlan #3021 MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 Wilmington, Delaware 19801-1494 302-888-6800 [email protected] [email protected] [email protected] Counsel for Plaintiff Cass and Crew Inc., LLC

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CIVIL COVER SHEET
The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS CASS AND CREW INC., LLC DEFENDANTS MGI GRAPHICS, INC.
COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT

(IN U.S. PLAINTIFF CASES ONLY). (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF (EXCEPT IN U.S. PLAINTIFF CASES) ATTORNEYS (IF KNOWN) (c) ATTORNEYS (FIRM NAME, ADDRESS AND TELEPHONE NUMBER) Richard K. Herrmann/Mary B. Matterer/Amy Arnott Quinlan Morris James LLP 500 Delaware Avenue, Suite 1500 Wilmington, DE 19801 302-888-6800 III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN "X" IN ONE BOX FOR PLAINTIFF II. BASIS OF JURISDICTION (PLACE AN "X" IN ONE BOX ONLY) (For Diversity Cases Only) AND ONE BOX FOR DEFENDANT) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties of Business In Another State in Item III) Citizen or Subject of a 3 3 Foreign Nation Foreign County IV. ORIGIN (PLACE AN "X" IN ONE BOX ONLY) Transferred from 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 another district 6 Multidistrict Proceeding State Court Appellate Court Reopened (specify) Litigation V. NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY
110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury PERSONAL INJURY 362 Personal Injury Med. Malpractice 365 Personal Injury ­ Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability 610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R. R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157

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Appeal to District Judge from 7 Magistrate Judgment
400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce/ICC Rates/etc. 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 891 Agricultural Arts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900 Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes 890 Other Statutory Actions

OTHER STATUTES

PROPERTY RIGHTS
820 Copyrights 830 Patent 840 Trademark

710 Fair Labor Standards Act 720 Labor/Mgmt Relations 730 Labor/Mgmt Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc Security Act

LABOR

SOCIAL SECURITY
861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS ­ Third Party 26 USC 7609

REAL PROPERTY

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

CIVIL RIGHTS

441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 440 Other Civil Rights

PRISONER PETITIONS
510 Motions to Vacate Sentence HABEAS CORPUS: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

FEDERAL TAX SUITS

VI. CAUSE OF ACTION

(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE BRIEF STATEMENT OF CAUSE. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.)

Action for patent infringement under 35 U.S.C. §§ 1 et seq. VII. REQUESTED IN complaint: COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): JUDGE

DEMAND $

CHECK YES only if demanded in JURY DEMAND: YES NO

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

July 10, 2008
FOR OFFICE USE ONLY

/s/ Mary B. Matterer

RECEIPT#

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE