United States District Court, D. Minnesota
W. Anthony, Steven M. Pincus, Courtland C. Merrill, Cory D.
Olson, Steven C. Kerbaugh, and Daniel R. Hall, Anthony
Ostlund Baer & Louwagie PA, Jon E. Wright, Sterne Kessler
Goldstein & Fox, Ryan S. Dean, Fish & Tsang LLP, for
Plaintiff and Counterclaim Defendant Luminara Worldwide, LLC.
G. Carlson, Tara C. Norgard, Jonathan D. Carpenter, and Peter
M. Kohlhepp, Carlson, Caspers, Vandenburgh, Lindquist &
Schuman, P.A., Thomas N. Millikan, Joseph P. Reid, Kenneth J.
Halpern, Yun Louise Lu, and Patrick J. McKeever, Perkins Coie
LLP, for Defendants and Counterclaim Plaintiffs Liown
Electronics Co. Ltd., Liown Technologies/Beauty Electronics,
LLC, Shenzhen Liown Electronics Co. Ltd., Boston Warehouse
Trading Corp., Abbott of England (1981), Ltd., BJ's
Wholesale Club, Inc., Von Maur, Inc., Zulily, Inc., Smart
Candle, LLC, Tuesday Morning Corp., The Light Garden, Inc.,
and Central Garden & Pet Co.
ON DEFENDANT ABBOTT OF ENGLAND (1981), LTD.'S
MOTION FOR SUMMARY JUDGMENT
RICHARD NELSON, United States District Judge
matter is before the Court on Defendant Abbott of
England's Motion for Summary Judgment of Noninfringement
[Doc. No. 460]. For the reasons set forth below, Abbott's
Motion for Summary Judgment is granted.
of England (“Abbott”) is a Canadian company,
located in Canada, which wholesales a variety of home
décor products. (Decl. of Jody Abbott (“Abbott
Decl.”) at ¶¶ 2-3 [Doc. No. 463].) Abbott
sells exclusively to third-party retailers, not individual
consumers. (Id. at ¶ 4.) In August of 2011,
Abbott began selling a line of flameless candles
(“Reallite”) manufactured by Defendant Liown that
Plaintiff Luminara Worldwide
(“Luminara”) alleges infringe on its United States
patents. (See id. at ¶ 5.) However, it was not
until February 21, 2012, when Abbott received a cease and
desist letter from Luminara, that Abbott became aware of
Luminara's patents and its infringement claims.
(Id. at ¶ 6; Abbott Decl., Ex. A (“Cease
and Desist Ltr.”) at 02773- 74 [Doc. No. 463-1].) Important
here is the fact that Abbott only sells Reallite candles to
retailers in Canada and the United Kingdom (U.K.), not the
United States. (Abbott Decl. at ¶¶ 7-8.) Abbott
contends that United States patent law does not prohibit it
from continuing to sell Reallite candles to Canadian and U.K.
retailers and thus they did not stop selling the Reallite
product after receiving Luminara's cease and desist
letter. (See Abbott Decl., Ex. B at 02775-76 [Doc.
sued Abbott for direct infringement and inducing
infringement. (See Third Amended Compl., Count I
[Doc. No. 131].) However, Luminara subsequently abandoned its
direct infringement claim. (See Luminara's Opp.
to Abbott's Mot. (“Mem. in Opp.”) at 2, 5 n.1
[Doc. No. 525].) Abbott now moves for summary judgment on the
inducement claim because it alleges there is no evidence that
it performed an inducing act with the requisite intent, or
that a relevant third-party directly infringed on
Luminara's patents. (See Abbott's Mem. of
Law in Supp. of its Mot. (“Mem. in Supp.”) at
12-13 [Doc. No. 462]; Abbott's Reply Mem. of Law in Supp.
(“Reply”) at 2-4 [Doc. No. 537].) Luminara
opposes Abbott's motion and offers three pieces of
evidence it alleges support its inducement claim: (1)
Abbott's website, which supposedly “directs
consumers to locate United States retailers that sell the
Reallite candles[, ]” (2) a Facebook post by Abbott in
response to an inquiry about the availability of Reallite
candles in the United States, and (3) the purchase of a
Reallite candle by a Luminara employee from one of
Abbott's third-party Canadian retailers. (See
Mem. in Opp. at 3-4.)
judgment is proper if, drawing all reasonable inferences in
favor of the non-moving party, there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986); Morriss v. BNSF Ry. Co., 817 F.3d
1104, 1107 (8th Cir. 2016), cert. denied, (U.S. Oct.
3, 2016). “Summary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather
as an integral part of the Federal Rules as a whole, which
are designed ‘to secure the just, speedy, and
inexpensive determination of every action.'”
Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
party moving for summary judgment bears the burden of showing
that the material facts in the case are undisputed.
Id. at 323. However, a party opposing summary
judgment “‘may not rest upon the mere allegation
or denials of his pleading, but ... must set forth specific
facts showing that there is a genuine issue for trial, '
and ‘must present affirmative evidence in order to
defeat a properly supported motion for summary
judgment.'” Ingrassia v. Schafer, 825 F.3d
891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S.
at 256-57). “[T]he nonmoving party must ‘do more
than simply show that there is some metaphysical doubt as to
the material facts.'” Conseco Life Ins. Co. v.
Williams, 620 F.3d 902, 910 (8th Cir. 2010) (quoting
Matsushita Elec. Indus. Co., v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)). Summary judgment is proper where
the non-moving party fails “‘to make a showing
sufficient to establish the existence of an element essential
to that party's case . . . .'” Walz v.
Ameriprise Fin., Inc., 779 F.3d 842, 844 (8th Cir. 2015)
(quoting Celotex, 477 U.S. at 322). While the moving
party bears the burden of showing that the facts are
undisputed, a judge is not confined to considering only the
materials cited by the parties, and “it may consider
other materials in the record.” Fed.R.Civ.P. 56(c)(3).
other legal principles are important to the present matter.
First, “only evidence that would be admissible at trial
may be relied upon to counter a motion for summary
judgment.” Sokol & Associates, Inc. v.
Techsonic Indus., Inc., 495 F.3d 605, 611 n.4 (8th Cir.
2007). Statements containing double hearsay are not
admissible evidence and may not be relied upon. See Ward
v. Int'l Paper Co., 509 F.3d 457, 462 (8th Cir.
2007); McKay v. U.S. Dep't of Transp., 340 F.3d
695, 699 n.2 (8th Cir. 2003); Erickson v. Farmland
Indus., Inc., 271 F.3d 718, 728 (8th Cir. 2001). Second,
attorney statements and argument in briefing are not evidence
and cannot create issues of ...