United States District Court, D. Colorado
DAVID L. HILDEBRAND, an individual, Plaintiff,
WILMAR CORPORATION, a Washington corporation, Defendant.
RAYMOND P. MOORE United States District Judge.
matter is before the Court on the “Report and
Recommendation on Defendant's Motion to Dismiss (DKT.
#20)” (the “Recommendation”) (ECF No. 33)
issued by Magistrate Judge N. Reid Neureiter. Judge Neureiter
recommended denying Defendant's Motion to Dismiss (the
“Motion”) filed pursuant to Fed.R.Civ.P. 12(b)(6)
but barring Plaintiff from seeking damages for unpaid
royalties after September 20, 2015, the date U.S. Patent No.
5, 737, 981 (the “‘981 Patent”) expired.
Plaintiff's Objection (ECF No. 37) followed, to which
Defendant did not file a response. Upon consideration of the
Recommendation, Objection, the court record, and the
applicable rules and case law, and being otherwise fully
advised, the Court accepts the Recommendation, as modified.
Review of the Magistrate Judge's Recommendation
magistrate judge issues a recommendation on a dispositive
matter, Fed.R.Civ.P. 72(b)(3) requires that the district
court judge “determine de novo any part of the
magistrate judge's [recommendation] that has been
properly objected to.” “The district court judge
may accept, reject, or modify the recommendation; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Id.
objection is proper if it is filed timely in accordance with
the Federal Rules of Civil Procedure and specific enough to
enable the “district judge to focus attention on those
issues - factual and legal - that are at the heart of the
parties' dispute.” United States v. One Parcel
of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996)
(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
In the absence of a timely and specific objection, “the
district court may review a magistrate's report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations
omitted); see also Fed. R. Civ. P. 72 Advisory
Committee's Note (“When no timely objection is
filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
Plaintiff's pro se status
was represented by counsel until after the Recommendation was
issued. Plaintiff now proceeds pro se; thus, the Court
liberally construes his Objection. Haines v. Kerner,
404 U.S. 519, 520-21 (1972). The Court, however, cannot act
as an advocate for Plaintiff, who must still comply with the
fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
party objects to the Recommendation's recitation of the
factual background, and the Court finds no clear error, it is
accepted and incorporated herein by reference. Nonetheless,
the Court provides a brief recitation to provide clarity to
this Order addressing Plaintiff's Objection.
is the owner of the ‘981 Patent which expired on
September 20, 2015. In 2009, Plaintiff filed a patent
infringement action against Defendant. The parties settled
that lawsuit as set forth in their Settlement Agreement (the
“Agreement”) dated March 2, 2009. As relevant to
the Objection, the Agreement provides that:
• Plaintiff would grant Defendant “a non-exclusive
license for any future and-or continued sales of Products
covered” under the ‘981 Patent (Section 1.2);
• Defendant would pay Plaintiff “an ongoing
royalty in the amount of 15% of the Gross Selling Price of
Products sold and covered” by the ‘981 Patent