new castle v premiere foods - complaint

' '

·'·

1 Frederick Gotha, Esq. [SBN 40480]

2 [email protected] 301 E. Colorado Blvd., Suite 800

3 Pasadena, CA 9110 1 ~ 4 Telephone No: 626.796.1849

\Y) 5 Niria M. Arvizu, Esq., [SBN 236994] 6 [email protected]

7 301 E. Colorado, Blvd., Suite 800 Pasadena, CA 9110 1

8 Telephone No.: 626.831.8077

9 Attorneys for Plaintiffs,

10 New Castle Beverage, Inc., and Ricky D. Monugian 11

12 UNITED STATES DISTRICT COURT

13

14 CENTRAL DISTRICT OF CALIFORNIA

15

16 NEW CASTLE BEVERAGE INcf y 1 0.s~~.P 5 ~fuO(bJx)

17 California corporation, and RICKY D. 18 MONUGIAN, an individual.

19 Plaintiffs,

20

21 vs.

22 PREMIER FOODS, LLC, a California 23

Limited Liabili!)' Company, Spicy Beer Mix, Inc. a California

24 Corporation, and DOES 1-5 inclusive,

Defendants.

COMPLAINT FOR PATENT INFRINGEMENT; DEMAND FOR JURY TRIAL

25

26

27 Plaintiffs, NEW CASTLE BEVERAGE, INC., (hereinafter "NEW

28 CASTLE") and Ricky D. Monugian (hereinafter "MONUGIAN") allege as follows


1 against Defendants, PREMIER FOODS, LLC, ("Premier Foods") a California

2

3 Limited Liability Company, SPICY BEER MIX, INC., ("Spicy Beer") a California

4 Corporation, (collectively the "Defendants") and DOES I through 5, inclusive:

5

6

7 1.

JURISDICTION AND VENUE

This is an action for patent infringement arising under 35 U.S.C.,

8 sections 271 and 281. This Court has original and exclusive jurisdiction over the

9 patent infringement claim pursuant to 28 U.S.C. sections 1331 and 1338(a).

10

11 2. This Court has personal jurisdiction over the Defendants pursuant to

12 California Code of Civil Procedure section 410.10. Plaintiffs are informed and

13

14 believe, and thereon allege, that Defendants have continuous and substantial

15 contacts with the State of California in this Judicial District, and reside within this 16

Judicial District. 17

18

19

20

21

22

23

24

25

26

27

28

3. Venue is proper in this district pursuant to 28 U.S.C. sections 139l(b),

(c), and 1400(b ).

2


1

2

3 4.

0

PARTIES

Plaintiff, NEW CASTLE, is, and at all times herein mentioned was, a

4 California corporation, duly organized and existing under the laws of the State of

5 California, with its principal place of business at 1115 Centre Drive, City of 6

7 Industry, California 91789, within this Judicial District, and is the exclusive

8 licensee of U.S. Patent No. D652,681 (hereinafter "681 patent"). A copy of the

9 681 patent is attached to this Complaint as Exhibit "1 ".

10

11 5. Plaintiff MONUGIAN is, and at all times herein mentioned was, an

12 individual residing in the State of California, and throughout the period of the

13

14 Defendants', and each of their infringing acts, was the owner and licensor of the

15 681 patent, and still is the owner and licensor of the 681 patent. 16

17 6. Plaintiffs are informed and believe, and thereon allege, that Defendant

18 Premier Foods, LLC, is a California Limited Liability Company, qualified to do

19 business in the State of California, presently does business in the State of

20

21 California, and does business within this Judicial District, having a place of

22 business at with its principal place of business at 12946 Park Street, Santa Fe 23

24 Springs, California, 90670.

25

26

7. Plaintiffs are informed and believe, and thereon allege, that

Defendant, Spicy Beer, is a California corporation with its principal place of 27

28 business at 14226 Leffingwell Road, Whittier, California, 90604.

3

COMPLAINT FOR PATENT INFRINGEMENT; DEMAND FOR JURY TRlAL

1

2

3

0

8. a. The true names and capacities, whether individual, corporate,

associate, or otherwise, of Defendants DOES 1 through 10, inclusive, are unknown

4 to Plaintiffs, who therefore sue these Defendants by such fictitious names, and

5 Plaintiffs will seek leave to amend this Complaint to set forth their true names and 6

7 capacities when they have ascertained them.

8

9

b. Plaintiffs are informed and believe, and thereon allege, that

each of the Defendants designated herein as a "DOE" is responsible in some 10

11 manner for the events and happenings herein referred to, and caused injury and

12 damage to Plaintiffs as herein alleged.

13

14

15

16

9. a. Plaintiffs are informed and believe, and thereon allege, that at

all times mentioned herein, Defendants, and each of them, were the agents,

17 servants, and employees of each of their co-Defendants.

18 b. Plaintiffs are informed and believe, and thereon allege, that in

19 doing the things hereinafter alleged, Defendants, and each of them, were acting in

20

21 the course and scope of their employment as such agents, servants, and employees,

22 and with the permission, consent, knowledge and/or ratification of their co-23

24 Defendants, principals, and employers.

25

26

27

28

4


1

2

3

0

COUNT I-PATENT INFRINGEMENT

10. Defendants, and each of them, use, offer for sale, import and/or sell

4 beverage containers, which infringe the claim of the 681 patent. Defendants, and

5 each of them, will continue their infringing acts unless enjoined by this Court. 6

7 11. Plaintiffs have been damaged by the infringement and are entitled to

8 an award of damages to compensate them for the infringement, together with

9

10 interests and costs.

11 12. Defendants, and each of them, have neither requested nor received

12 any authorization from Plaintiffs to manufacture, have made, use, sell, or offer to

13

14 sell the patented device, but have acted in defiance and disregard of Plaintiffs

15 rights. 16

17 13. Plaintiffs are informed and believe that Defendants, and each of their

18 conduct, presents an exceptional case pursuant to 35 U.S.C. section 285, and

19

20

21

22

23

24

Plaintiffs are therefore entitled to an award of their reasonable attorney fees.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of

25 them, as follows:

26

27

28

(a). a preliminary and final injunction against the continuing infringement;

(b) an accounting for damages; and

5


I (c) interest, costs, and attorney fees.

2

3

4

5

6

7 Dated:

8

9

10

11

12

13

I4

IS

I6

I7

18

I9

20

21

22

23

24

25

26

27

28

Respectfully submitted,

Frederick Gotha, Esq. Niria M. Arvizu, Esq. Attorneys for Plaintiffs, New Castle Beverage, Inc., and Ricky D. Monugian

6


1

2

3

DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a trial by jury of any issue triable by right

4 of a jury pursuant to Rule 38 of the Federal Rules of Civil Procedure.

5 Dated: 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-3. 14.13

Frederic Gotha, Esq. Niria M. Arvizu, Esq. Attorneys for Plaintiffs, New Castle Beverage, Inc., and Ricky D. Monugian

7


0

EXHIBIT 1

;

: j

I l

I I

. ·'

1111111~11111111111.1111111111 UIIIUIIMIIIIIIIIII

(12) United States Design Patent Monugian

(54) BEVERAGE BOLDER

(76) Inventor: Ricky D. Monugian, Ontario, CA (US)

(**) Term: 14 Years

(21) Appl. No.: 291372,035

(22) Filed: Oct. 6, 2010 (51) LOC (9) CJ. .................................................. 07·01 (52) U.S. CL .............. , ......................................... D7/510 (58) Field of Classification Search ................... D7/510,

D7/511, 500,532, 900; 215/121.382,388. 215/387; 220/674,715,713,718,592.16,

2201592.17,709, 708; 09/551,529 See application file for complete search history.

(56) References Cited

U.S. PATENT DOCUMENTS 2,782,614 A • 2/1957 Currie ........................... 2201718 6,202,877 B! * 3/2001 La Torre et al. ............ 2201254.1 0466,371 S • 1212002 Parker ............................ 07/510 0472.101 s * 3/2003 Janky ............................. 07/532

8

USOOD652681S

(tO) Patent No.: (45) Date of Patent:

US D652,681 S ** Jan. 24, 2012

0535,151 S • 112007 Seum et al ..................... 07/510 0586,182 S • 212009 Trombly ........................ 07/510 0622.546 S * 812010 Bodum .......................... 07/510 0639.166 S • 6120 1 I Carreno ..... ..... .. .......... ... 09/504

" cited by examiner

Primary Examiner- Cynthia Underwood

(57) CLAIM The ornamental design for a beverage holder, as shown and described.

DESCRIPTION

FIG. 1 is a Perspective view of a beverage holder showing m}'> new design; FIG. 2 is a front view of my new design illustrated in FIG.1; the rear view of my new design is the mirrorimage of the front view; · FIG. 3 is a top view thereof; and, FIG. 4 is a bottom view thereof. The broken lines represent portions of the environment and fonn no part of the claim.

1 Claim, 4 Drawing Sheets

0 U.S. Patent Jan.24,2012 Sheet 1 of4 US D652,681 S

FIG.t

9

0 t

1

I I

U.S. Patent US D652,681 S Jan. 24, 2012 Sheet 2 of 4

I FIG.2

i

I 10

0 Jan.24,2012 Sheet 3 of4 US D652,681 S

FIG.3

( \ ( \ \ I

' , __..

11

0 U.S. Patent

I

Jan.24,2012

I I

I I I I I \ \ \

/ /

I

\

' '

_, ..... /

12

Sheet 4 of4 US D652,681 S

FIG.4

1

UNITE.TES DISTRICT COURT, CENTRAL DISTRICT .LIFORNIA

CIVIL COVER SHEET

I. (a) PLAINTIFFS ( Check box if you are representing yourself 0 ) NEW CASTLE BEVERAGE INC., a California corporation, and RICKY D. MONUGIAN, an individual

(b) Attorneys (Firm Name, Address and Telephone Number. If you are representing yourself, provide same.)

Frederick Gotha [40480] [email protected]; Niria M. Arvizu [236994] [email protected]; 301 E. Colorado Blvd., Suite 800, Pasadena, California 91101 (626) 796-1849

DEFENDANTS ( Check box if you are representing yourself 0 ) PREMIER FOODS, LLC, a California Limited Liability Company, Spicy Beer Mix, Inc., a California corporation, and DOES 1-5

(b) Attorneys (Firm Name, Address and Telephone Number. If you are representing yourself, provide same.)

II. BASIS OF JURISDICTION (Place an X in one box only.) Ill. CITIZENSHIP OF PRINCIPAL PARTIES-For Diversity Cases Only (Place an X in one box for plaintiff and one for defendant)

PTF DEF . PTF DEF 0 1. U.S. Government Plaintiff

O 2. U.S. Government Defendant

~ 3. Federal Question (U.S. Government Not a Party)

0 4. Diversity (Indicate Citizenship of Parties in Item Ill)

Citizen ofThis State 0 1 0 1 Incorporated or Principal Place O 4 D 4 of Business in this State

Citizen of Another State

Citizen or Subject of a Foreign Country

0 2 0 2 Incorporated and Principal Place of Business in Another State

0 3 0 3 Foreign Nation

IV. ORIGIN (Place an X in one box only.) D 5. Transferred from Another District (Specify)

6.MultiD District

Litigation IV1 1. Original D 2. Removed from D 3. Remanded from ~ Proceeding State Court Appellate Court D 4. Reinstated or

Reopened

V. REQUESTED IN COMPLAINT: JURY DEMAND: ~ Yes 0 CLASS ACTION under F.R.Cv.P. 23: 0 Yes ~ No

No (Check "Yes" only if demanded in complaint.)

~ MONEY DEMANDED IN COJIIIPLAINT: $ To be determined

OTHER STATUTES CONTRACT REAL PROPERTY CONT. IMMIGRATION PRISONER PETITIONS PROPERTY RIGHTS

D 375 False Claims Act D 110 Insurance D 240 Torts to Land D 462 Naturalization Habeas Corpus: 0 820 Copyrights

0 245 Tort Product Application 0 463 Allen Detainee

0 400 State D 120 Marine Liability 4650ther 0 51 0 Motions to Vacate ~ 830Patent

Reapportionment D 0 130 Miller Act 290 All Other Real

Immigration Actions Sentence 0 840 Trademark D 410 Antitrust 0 0 530 General

140 Negotiable Property TORTS SOCIAL SECURITY 0 430 Banks and Banking 0 TORTS 0 535 Death Penalty D 861 HIA (1395ff) Instrument

0 450 Commerce/ICC 150 Recovery of PERSONAL INJURY D 370 Other Fraud Other: 0 862 Black Lung (923) Rates/Etc. 0 Overpayment & 0 310 Airplane 0 540 Mandamus/Other

D 460 Deportation Enforcement of 315 Airplane D 371 Truth in Lending D 550 Civil Rights D 863 DIWC/DIWW (405 (g))

Judgment D D 470 Racketeer lnflu- Product Liability D 380 Other Personal

0 555 Prison Condition 0 864 SSID Title XVI enced & Corrupt Org. 0 151 Medicare Act D 320 Assault, Libel & Property Damage

Slander 560 Civil Detainee 0 86S RSI (40S (g)) 0 480 ConsumerCredit 1S2 Recovery of 330 Fed. Employers' D 385 Property Damage D Conditions of

D Defaulted Student D Liability Product Liability Confinement FEDERAL TAX SUITS

D 490 Cable/Sat TV Loan (Excl. Vet.) BANKRUPTCY FORFEITURE/PENAL TV 870 Taxes (U.S. Plaintiff or 8SO Securities/Com- D 340Marine

D 422 Appeal 28 D Defendant) 0 1S3 Recovery of 62S Drug Related

modities/Exchange 0 34S Marine Product usc 1S8 0 Seizure of Property 21 0 Overpayment of Liability 423 Withdrawal28 0 871 IRS-Third Party 26 USC 890 Other Statutory Vet. Benefits D usc 881 7609

D usc 157 Actions 160 Stockholders' 0 3SO Motor Vehicle

D 891 Agricultural Acts 0 Suits 3SS Motor Vehicle CIVIL RIGHTS 0 6900ther D Product Liability D 440 Other Civil Rights

D 893 Environmental 0 1900ther 360 Other Personal D LABOR

Matters Contract D Injury 441 Voting 0 710 Fair Labor Standards

D 89S Freedom of Info. O 19S Contract 362 Personallnju ry- D 442 Employment Act Act Product Liability 0 Med Malpratice 0 720 Labor/Mgmt.

0 896 Arbitration I 0 196 Franchise 36S Personal Injury- D 443 Housing/ Relations

D Product Liability Accomodations 0 740 Railway Labor Act 899 Admin. Procedures

REAL PROPERTY 367 Health Care/ 445 American with

0 Act/Review of Appeal of 210 Land Pharmaceutical D Disabilities- D 7S1 Family and Medical

Agency Decision D Condemnation 0 Personal injury Employment Leave Act

0 220 Foreclosure Product Liability D 446 American with D 790 Other Labor

O 9SO Constitutionality of 368 Asbestos Disabilities-Other Litigation

State Statutes O 230 Rent Lease & D Personallnjury D 448 Education O 791 Employee Ret. Inc. Ejectment Pmdurt 1 iahilitv Security Act

~;

FoR OFFICE usE ONLY: case Number_: --tCc-.--wVf---=l~j.:.,~ ·,__...,. . ...._...UH. "t--£i.*'"A_, -tlJ-t. ·f-'rJ'c::. ... -....,.,!i•'

AFTER COMPLETING PAGE 1 OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED ON PAGE 2.

CV-71 (02/13) CIVIL COVER SHEET Page 1 of2

UNITE.ATES DISTRICT COURT, CENTRAL DI.UCT OF CALIFORNIA CIVIL COVER SHEET

VIII( a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? ~ NO 0 YES

If yes, list case number(s):

VIII( b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? ~NO 0 YES

If yes, list case number(s):

Civil cases are deemed related If a previously filed case and the present case:

(Check all boxes that apply) O A. Arise from the same or closely related transactions, happenings, or events; or

0 B. Call for determination of the same or substantially related or similar questions of law and fact; or

0 C. For other reasons would entail substantial duplication of labor if heard by different judges; or

0 D. Involve the same patent, trademark or copyright. and one of the factors identified above in a, b or c also Is present.

IX. VENUE: (When completing the following information, use an additional sheet if necessary.}

(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides.

0 Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).

County in this District:* California County outside ofthis District; State, if other than California; or Foreign Count

los Angeles

(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.

0 Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c).

County in this District:* California County outside of this District; State, if other than California; or Foreign Count

los Angeles

(c) List the County in this District; California County outside ofthis District; State if other than California; or Foreign Country, in which EACH claim arose. NOTE: In land condemnation cases, use the location of the tract of land Involved.

County in this District:*

los Angeles

California County outside of this District; State, if other than California; or Foreign Count

*Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties Note: In land condemnation cases, use the location of the tract of land inv ed

Notice to Counsei/Panies: The CV-71 (JS-44) Civil Cover Sheet and the informati contain ere1 neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form, approved by the Judicial Conference of e United St n September 1974, is required pursuant to local Rule 3-1 is not filed but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet).

Key to Statistical codes relating to Social Security Cases: Nature of Suit Code Abbreviation Substantive Statement of Cause of Action

861 HIA

862 Bl

863 DIWC

863 DIWW

864 SSID

865 RSI

CV-71 (02/13)

All claims for health insurance benefits (Medicare) under Title 18, Part A, ofthe Social Security Act, as amended. Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program. (42 U.S.C. 1935FF(b))

All claims for "Black lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C. 923)

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405 (g))

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as amended. (42 U.S.C. 405 (g))

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as amended.

All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42 u.s.c. 405 (g))

CIVIL COVER SHEET Page 2 of 2

new castle v premiere foods - complaint

Documents