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Bovino v. Levenger Co.

United States District Court, D. Colorado

July 8, 2015

JERALD A. BOVINO, Plaintiff/Counter-Defendant,
v.
LEVENGER COMPANY, Defendant/Counter-Plaintiff.

ORDER

RAYMOND P. MOORE, District Judge.

This matter is before the Court on the following motions:

(1) Plaintiff/Counter-Defendant Jerald A. Bovino's ("Bovino" or "Plaintiff") motion to dismiss his clam for direct infringement (ECF No. 59);

(2) Plaintiff's motion to restrict public access to certain filings made by Defendant/Counter-Plaintiff Levenger Company ("Levenger" or "Defendant") (ECF No. 62); and

(3) Plaintiff's motion to dismiss his claim for indirect infringement (ECF No. 66). Defendant opposes, in part, Plaintiff's motions to dismiss (ECF Nos. 59; 66) on the basis Defendant argues that it is entitled to an award of attorneys' fees and costs (ECF Nos. 60; 68).

For the following reasons, the Court:

(1) GRANTS Plaintiff's motion to dismiss his claim for direct infringement (ECF No. 59);

(2) GRANTS Plaintiff's motion to restrict public access (ECF No. 62);

(3) GRANTS, in part, Plaintiff's motion to dismiss his claim for indirect infringement (ECF No. 66); and

(4) DENIES, in part, Plaintiff's motion to dismiss his claim for indirect infringement (ECF No. 66).

I. LEGAL STANDARDS

A. Voluntary Dismissal

Rule 41(a)(2) of the Federal Rules of Civil Procedure provides that

Except as provided in Rule 41(a)(1) [of the Federal Rules of Civil Procedure], an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent ...

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