Hildebrand v. Wilmar Corp.

          ORDER

          RAYMOND P. MOORE United States District Judge.

         This 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.

         I. LEGAL STANDARD

         A. Review of the Magistrate Judge's Recommendation

         When a 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.

         An 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 recommendation.”).

         B. Plaintiff's pro se status

         Plaintiff 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).

         II. ANALYSIS

         A. Background

         As no 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.

         Plaintiff is the owner of the ‘981 Patent which expired on September 20, 2015.^[1] 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 until ...