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Predator International, Inc. v. Gamo Outdoor Usa, Inc.

United States District Court, D. Colorado

August 14, 2014

PREDATOR INTERNATIONAL, INC., a Colorado corporation, Plaintiff,
GAMO OUTDOOR USA, INC., a Florida corporation, Defendant.


PHILIP A. BRIMMER, District Judge.

This matter comes before me on Claimant John M. Cogswell's Motion to Recuse the Honorable Philip A. Brimmer [Docket No. 588], wherein Mr. Cogswell, an attorney for plaintiff Predator International, Inc. ("Predator"), seeks my recusal pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455(a).


Predator filed this case on April 28, 2009, asserting claims for patent infringement, trade dress infringement, slogan infringement, copyright infringement, unjust enrichment, unfair competition, and violation of the Colorado Consumer Protection Act, see Colo. Rev. Stat. § 6-1-101 et seq. Docket No. 1. Mr. Cogswell was one of four attorneys representing Predator.

In the spring of 2010, Predator voluntarily moved to dismiss its patent infringement claims, stating that it could not "prove that it had standing to pursue these claims without a written assignment" from the patent's co-inventor. Docket Nos. 113 and 142 at 2. Predator subsequently commenced a state court action to determine ownership of the patent at issue. See Docket No. 266 at 4; Docket No. 268 at 8, ¶ 9. On July 11, 2011, over a year and a half after the deadline to amend the pleadings in this case had passed, see Docket No. 59 at 7, Predator moved for leave to file a supplemental complaint. Docket No. 227. Specifically, Predator sought leave to assert a claim for declaratory judgment of patent ownership and to reassert its claim for patent infringement. Id. On July 28, 2011, Gamo sent a letter to Predator's counsel expressing Gamo's belief that the motion to amend violated Federal Rule of Civil Procedure 11 and requesting that Predator withdraw its motion. Docket No. 266-1. Predator declined to do so. On March 26, 2012, the Court accepted the magistrate judge's recommendation denying Predator leave to amend for failure to provide a valid explanation for its delay in making this request. Docket No. 290.

On December 22, 2011, Gamo filed a motion for sanctions. Docket No. 266. On January 17, 2014, the Court granted this motion in part. Docket No. 439. The Court found that

Predator's attempt in July 2011 to supplement its complaint by (1) adding a claim for declaratory judgment of ownership of the 893 Patent and (2) reasserting its patent infringement claim was not "warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." See Fed.R.Civ.P. 11(b)(2). Rather, it appears to have been an attempt, in light of adverse rulings in the state court, to litigate these claims in a more favorable forum, resulting in the expenditure of significant time and resources on the part of Gamo and the Court. This type of forum shopping constitutes an improper purpose under Rule 11 and thus Predator's conduct is subject to sanction.

Docket No. 439 at 12 (citing Bolivar v. Pocklington, 975 F.2d 28, 32 (1st Cir. 1992) and Fransen v. Terps Ltd. Liability Co., 153 F.R.D. 655, 660 (D. Colo. 1994)). Accordingly, the Court awarded $10, 000 in sanctions against Mr. Cogswell pursuant to Rule 11(b). Id. at 18-19.

On February 3, 2014, the Court held a trial preparation conference. Docket No. 544. The trial was set for February 18, 2014. Docket No. 403. At the trial preparation conference, Mr. Cogswell indicated that his wife was ill and requested that the Court vacate the trial. Docket No. 544. The Court granted Mr. Cogswell's request. Id. The trial was reset for August 19, 2014. Docket No. 548.

On June 10, 2014, the parties filed a joint motion to withdraw Gamo's motion for sanctions and vacate the sanctions order. Docket No. 578. The parties stated that, pursuant to their May 27, 2014 settlement agreement, "the parties agreed to withdraw any Rule 11 motions and request that the Court withdraw any orders issued concerning Rule 11 motions." Id. at 1. The motion stated that it was "in the best interests of the parties and this Court based on the joint concurrence of the parties and the efficient administration of justice that the Court grant this motion to vacate its Order dated January 17, 2014." Id.

On June 16, 2014, the Court denied the parties' motion to vacate the sanctions order. Docket No. 579. The Court held that the parties' motion had not set forth any basis for vacating a properly issued order. Id. at 2. The Court further held that granting the parties' request would contravene the interest in maintaining the public nature of court proceedings. Id.

On June 25, 2014, the parties renewed their request to vacate the sanctions order. Docket No. 582. They stated that vacating the sanctions order was a "part of the confidential settlement agreement." Id. at 1-2. They further stated that "they had no intent that any of the papers relating to the sanctions order be sealed and, as such, all filings related thereto from the beginning to the end of the case would continue to be available for public view." Id. at 2.

The Court denied the parties' motion. Docket No. 584. The Court found that the settlement agreement was not conditioned on the Court vacating the sanctions order, but rather on the parties' agreement to request such relief from the Court, a provision with which both parties complied. Id. at 2. The Court, finding "no proper or persuasive reason" to vacate the sanctions order, once again declined to do so. Id. at 2-3.

On July 3, 2014, the parties jointly moved to dismiss the case. Docket No. 585. The same day, the Court dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 41(a). Docket No. 586. On July 29, 2014, Mr. ...

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