Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nisus Corp. v. Perma-Chink Systems

August 9, 2007

NISUS CORPORATION, PLAINTIFF,
v.
PERMA-CHINK SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

VARLAN/SHIRLEY

MEMORANDUM OPINION

This civil action is before the Court on two motions: (1) Objections to Report and Recommendation on Defendant's Motion for Sanctions [Doc. 506]; and (2) Motion to Strike or Dismiss Motion for Sanctions [Doc. 513]. At the outset, the Court notes that the patent infringement action underlying this dispute has now been settled [see Doc. 509], leaving these lingering sanctions motions as the only issues pending until this long-litigated, contentious case can be brought to a close. A hearing was held before the Court on January 9, 2007, at which the pending motions were thoroughly argued by the parties. [See Doc. 524.] Given that the facts of this case are well-known by the parties and the Court, and have been fully detailed in Magistrate Judge Shirley's Report and Recommendation [Doc. 505 at 2-18], the Court will forgo another recitation of the facts underlying this dispute and will instead proceed directly to resolving the pending motions.

I. Objections to Magistrate Judge Shirley's Report and Recommendation [Doc. 506]

Plaintiff's attorneys, Merchant & Gould, Douglas Williams, and Allan Altera (collectively, the "Attorneys") filed a 36-page objection to Judge Shirley's Report and Recommendation ("R&R") [Doc. 505], in which he recommends that: (1) defendant's First Renewed Motion for Sanctions as to the Pauly Declaration & '698 IDS [Doc. 438] be granted in part to the extent that sanctions should be awarded under the Court's inherent powers and/or 28 U.S.C. § 1927 and denied in part to the extend that defendant requests sanctions under Federal Rules of Civil Procedure 11 and 56(g); (2) defendant's Renewed Second Motion for Sanctions Regarding Mr. Altera's Sworn Testimony [Doc. 439] be granted; (3) the Attorney's Motion to Dismiss Defendant's Motion for Rule 11 Sanctions [Doc. 459] be granted; and (4) defendant's Cross-Motion to Modify Defendant's First Renewed Motion for Sanctions [Doc. 469] be denied as moot. Defendant has responded in opposition to the Attorneys' appeal [Doc. 511], and the Attorneys have filed a reply [Doc. 512].

A. Unobjected-to Portions of the R&R

Initially, the Court notes that certain portions of Judge Shirley's conclusions have not been objected to by the parties.*fn1 Specifically, the parties have not objected to the following recommendations of Judge Shirley: (1) that defendant's requests for sanctions under Federal Rules of Civil Procedure 11 and 56(g) in its Renewed First Motion for Sanctions be dismissed; (2) that the Attorneys' Motion to Dismiss Defendant's Motion for Rule 11 Sanctions be granted; and (3) that defendant's Cross-Motion to Modify Defendant's First Renewed Motion for Sanctions be denied as moot. [Doc. 524 at 13-14; 105-106.] Because enough time has passed since the filing of the R&R to treat any objections to those portions as being waived, see 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), the Court is not required to review those conclusions. Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate judge's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."). Accordingly, because the Court is in agreement with Judge Shirley on these portions of the R&R, the Court will adopt and incorporate into its ruling the following recommendations of Judge Shirley:

(1) that defendant's request for sanctions under Federal Rules of Civil Procedure 11 and 56(g) be dismissed;

(2) that the Attorneys' Motion to Dismiss Defendant's Motion for Rule 11 Sanctions be granted; and

(3) that defendant's Cross-Motion to Modify Defendant's First Renewed Motion for Sanctions be denied as moot.

As a result, the only claims remaining in defendant's Renewed First Motion for Sanctions are those seeking sanctions against plaintiff, and not the Attorneys, pursuant to 28 U.S.C. § 1927 and/or the Court's inherent powers. [Doc. 438 at 13-15; 19-20.] However, given that defendant withdrew all motions for sanctions sought against plaintiff on account of the settlement reached between the parties, [Doc. 505 at 8; Doc. 506 at 8-9], such withdrawal disposes of the remaining claims in defendant's Renewed First Motion for Sanctions.

Accordingly, all claims in defendant's Renewed First Motion for Sanctions as to the Pauly Declaration & '698 IDS [Doc. 438] have been resolved, and that motion will therefore be denied.

B. R&R Objections

As to the remaining portions of Judge Shirley's R&R to which the Attorneys object, the Court has undertaken de novo review of those conclusions, as is required by Federal Rule of Civil Procedure 72(b). This review entails "at least a review of the evidence that faced the Magistrate Judge," but may also include consideration of further evidence, at which point "the Court is free to accept, reject or modify the findings of recommendations of the Magistrate Judge." Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002) (internal citations removed). The Attorneys have objected to Judge Shirley's recommendation that defendant's Renewed Second Motion for Sanctions be granted and that sanctions be levied against the Attorneys pursuant to 28 U.S.C. ยง 1927 and/or the Court's inherent powers. As noted above, given that the parties' settlement agreement resolved all issues ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.