Aspen Medical Holdings Et. Al. v. Orthomerica Products Et. Al

7/29/2019 Aspen Medical Holdings Et. Al. v. Orthomerica Products Et. Al.

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(c), as Defendants reside in this judicial district, a substantial part of the events,omissions and acts which are the subject matter of this action occurred within theCentral District of California, and a substantial part of the property that is thesubject of the action is located in the Central District of California.

THE PARTIES3 . Aspen Medical Holdings, LLC is a California Limited Liability

Company with a principal place of business at 6481 Oak Canyon, Irvine, California.4 . Aspen Medical Products is a California corporation with its principal

place of business at 6481 Oak Canyon, Irvine, California.5 . On information and belief, Orthomerica is a Florida corporation, which

has or used to have a principal place of business at 505 31st Street, Newport Beach,California 92663. On information and belief, Orthomerica also has a place ofbusiness at 6333 N Orange Blossom Trail, Orlando, Florida 32810. On informationand belief, Orthomerica has made, used, sold and/or offered to sell in this JudicialDistrict the products that are alleged to infringe Plaintiffs' design patent discussedbelow. Orthomerica also operates a website at www.orthomerica.com at which itadvertises the products that are alleged to infringe Plaintiffs' design patent.

6 . The true names and capacities, whether individual, corporate, associateor otherwise, of defendants DOES 1 through 10, inclusive, are unknown toPlaintiffs, which therefore sues said defendants by such fictitious names. Plaintiffswill seek leave of this Court to amend this Complaint to include their proper namesand capacities when they have been ascertained. Plaintiffs are informed and believe,and based thereon allege, that each of the fictitiously named defendants participatedin and is in some manner responsible for the acts described in this Complaint andthe damage resulting therefrom.

7 . Plaintiffs allege on information and belief that each of the defendantsnamed herein as Does 1 through 10, inclusive, performed, participated in, or abettedin some manner, the acts alleged herein, proximately caused the damages alleged

COMPLAINT FOR PATENTIN2118/031021-00056140803.1 a09/17/13

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Case 8:13-cv-01461-AG-DFM Document 1 Filed 09/18/13 Page 2 of 11 Page ID #:2


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hereinbelow, and are liable to Plaintiffs for the damages and relief sought herein.8 . Plaintiffs allege on information and belief that, in performing the acts

and omissions alleged herein, and at all times relevant hereto, each of the defendantswas the agent and employee of each of the other defendants and was at all timesacting within the course and scope of such agency and employment with theknowledge and approval of each of the other defendants.

ASPEN'S BUSIN ESS AND THE PATEN T AT ISSUE9 . Aspen is a leader in the design, development and marketing of upper

and lower spinal orthotics. Aspen's products are sold throughout the United Statesand abroad. The management team and employees of Aspen have for more thantwenty years introduced a continuous flow of pioneering and successful spinalbracing products. As a developer and designer of innovative products, Aspen has arobust intellectual property portfolio that protects its innovations, designs andbrands.

1 0 . Plaintiff Aspen Medical Holdings, LLC owns United States designpatent no. D636,494, entitled "Lumbar Belt" (the '494 Patent"). Plaintiff AspenMedical Products is the exclusive licensee to the '494 Patent.

ORTHOMERICA'S INFRINGEMENT1 1 . Recently, it has come to Plaintiffs' attention that Orthomerica is

making, using, offering to sell, selling and/or importing into the United States aproduct the design of which is substantially the same as the Lumbar Belt that is thesubject of the '494 Patent. Plaintiffs have asked Orthomerica to cease its infringingconduct, but Orthomerica has failed to do so.

CLAIM FOR RELIEF(Patent Infringement '4 9 4 Patent)

1 2 . Plaintiffs real lege each and every allegation set forth in paragraphs 1through 11, inclusive, and incorporate them herein by this reference.

1 3 . Defendants make, use, sell, offer for sale, and/or import into the UnitedCOMPLAIN T FOR PATENTINFRINGEMENT2118/031021-00056140803.1 a09/17/13

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States products that infringe the '494 patent.1 4 . Plaintiffs have marked relevant products and/or product literature with

the '494 Patent pursuant to 35 U.S.C. 287. Additionally, on information andbelief, Defendants have had actual knowledge of the '494 Patent for some time. Oninformation and belief, Defendants' infringement of the '494 patent has been andwill continue to be willful, wanton and deliberate with full knowledge andawareness of Plaintiffs' patent rights.

1 5 . Plaintiffs have been damaged in an amount to be determined at trial,but which is no less than a reasonable royalty, and irreparably injured byDefendants' infringing activities. Plaintiffs will continue to be so damaged andirreparably injured unless such infringing activities are enjoined by this Court.

1 6 . Moreover, in light of the willful nature of Defendants' conduct, thiscase should be deemed "exceptional" under the Patent Laws. As a result, in additionto damages, Plaintiffs are entitled to enhanced damages and their attorneys' fees andcosts incurred herein.

PRAYER FOR RELIEFWHEREFORE, Plaintiffs pray for judgment against Defendants as follows:1 . That Defendants, their officers, directors, agents, servants, employees,

and all persons and entities in active concert or participation with them, or any ofthem, be preliminarily and permanently enjoined and restrained from furtherinfringement of the '494 Patent;

2 . A judgment by the Court that Defendants have infringed and areinfringing the '494 Patent;

3 . An award of damages and/or Defendants' profits for infringement ofthe '494 Patent, together with prejudgment interest and costs, said damages and/orprofits to be trebled by reason of the intentional and willful nature of Defendants'infringement, as provided by 35 U.S.C. 284;

4 . A determination that this case is "exceptional" under 35 U.S.C. 285,COMPLAIN T FOR PATENTINFRINGEMENT2118/031021-00056140803.1 a09/17/13

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By:Ronald P. OinesAttorneys for Plaintiffs ASPENMEDICAL HOLDINGS, LLC andASPEN MEDICAL PRODUCTS

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Dated: September 18, 2013

2118/031021-00056140803,1 a09/17/13

and an award of Plaintiffs reasonable attorneys' fees;5 . That any monetary award include pre- and post-judgment interest at the

highest rate allowed by law;6 . For costs of suit; and7 . For such other and further relief as the Court may deem just and proper.

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RUTAN & TUCKER, LLPRONALD P. OINESTHOMAS C. RICHARDSON

COMPLAIN T FOR PATENTINFRINGEMENT



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RUTAN & TUCKER, LLPRONALD P. OINESTHOMAS C. RICHARDSON

d P. OinesAttorneys for Plaintiffs ASPENMEDICAL HOLDINGS, LLC andASPEN MEDICAL PRODUCTS

By :Ro

DEMAND FOR JURY TRIALPursuant to Local Rule 38-1 of the Local Rules of the United States District

Court for the Central District of California, Plaintiffs hereby demand a jury trial inthis action.Dated: September 18, 2013

COMPLAINT FOR PATENTINFRINGEMENT-6 -1 1 8 / 0 3 1 0 2 1 - 0 0 0 56 1 4 0 8 0 3 . 1 a 0 9 /1 7 / 1 3

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UNITED STATES DISTRICT COURTCENTRA L DISTRICT OF CALIFORNIA

NOTICE OF ASSIGNMENT TO UNITED STATES JUDGES

This case h as been assigned to District JudgeMagistrate Ju dge isouglas F. McCormick Andrew J. Gu ilford nd the assignedThe case num ber on all docum ents filed with the Cou rt should read as follows:SACV13-01451 AG (DFM x)

Pursu ant to General Order 05 -0 7 of the United States District Court for the Central District ofCalifornia, the Magistrate Ju dge h as been designated to hear discovery related m otions.All discovery related motions should be noticed on the calendar of the Magistrate Judge.

Clerk, U. S. District Court

September 18, 2013 By. BoehmeDateeputy ClerkNOTICE TO COUNSELA copy of this notice must be served with the summ ons and com plaint on all defendants (if a removal action isfiled, a copy of this notice mu st be served on all plaintiffs).Subsequent docu ments m ust be filed at the following location:

El Western Division Southern Division1] Eastern Division312 N. Spring Street, G-811 West Fourth St., Ste 10 5347 0 Twelfth Street, Room 13 4Los Angeles, CA 90 01 2anta Ana, CA 92 70 1iverside, CA 925 01Failure to file at the proper location will result in your documents being returned to you.CV-18 (08/13)OTICE OF ASSIGNMENT TO UNITED STATES JUDGES



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ASPEN MEDICAL HOLDINGS, LLC; a CaliforniaLimited Liability Company; ASPEN MEDICALPRODUCTS, a California corporation,

PLAINTIFF(S)v.

ORTHOMERICA PRODUCTS, INC., a Floridacorporation; and DOES 1 through 10, inclusive,

CASE NUMBER

SACV13-01461 AG (DFMx)

SUMMONSDEFENDANT(S).

Ronald P. Oines SBN 145016, roi r&rutan.comThomas C. Richardson SBN 244461, [email protected] & Tucker, LLP611 Anton Boulevard, Fourteenth FloorCosta Mesa, CA 92626Telephone: 714-641-5100F acsimile: 714-546-9035Attorneys for Plaintiffs ASPEN MEDICAL1IOLDINGS, LLC and ASPEN MEDICALPRODUCTS

UNITED STATES DISTRICT COURTCENT L DISTRICT OF CALIFORNIA

TO: DEFENDANT(S):A lawsuit has been filed against you.Within 21 days after service of this summons on you (not counting the day you received it), you

must serve on the plaintiff an answer to the attached X complaint amended complaintcounterclaimross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answeror motion must be served on the plaintiffs attorney, Ronald P. Oines, Esq., Thomas C. Richardson, Esq., Rutan& Tucker, LLP, whose address is 611 Anton Boulevard, Fourteenth Floor, Costa Mesa, CA 92626. If you fail todo so, judgment by default will be entered against you for the relief demanded in the complaint. You also mustfile your answer or motion with the court. Clerk, U.S. District CourtDated: B

[Use 60 days if the defenda nt is the United States or a United States age ncy, or is an officer or emplo yee of the United States, Allowed60 days by Rule 12(a)(3)].

CV-01A (10 /11 UMMONS American LegaiNet, Inc.www.ForinsWorkFlow.con



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UNITED ST 3 DISTRICT COURT, CENTRAL DISTRICT OFIFORNIACIVIL COVER SHEET(a) PLAINTIFFS ( Check box if you are representing yourself Li)MEDICAL HOLDINGS, LLC; a California Limited DEFENDANTS Check box if you are representing yourself E l )ORTHOMERICA PRODUCTS, INC., a Florida corporation; andDOES 1 through 10, inclusive,(b) Attorneys (Firm Name, Address and Telephone Number. If youare representing yourself, provide same information.)

(Place an X in one box only.)

1. U.S. Government. Federal Question (U.S.Plaintiffovernment Not a Party)2. U.S. Governmentl 4. Diversity (Indicate CitizenshipDefendantf Parties in Item III) III. CITIZENSHIP OF PRINCIPAL PARTIES - Fo r Diversity Cases Only(Place an X in one box for plaintiff and one for defendant)PTFEF .EFCitizen of This Statel 1n c o r p o r a t e d or Prncial Placeof Business in this Statel 4Citizen of Another Statei 22ncorporated and Principal Place El 5lof Business in Another StateCitizen or Subject of aForeign Country31 1 3oreign Nationl 6

. ORIGIN (Place an X in one box only.)1. OriginalI 2. Removed from1] 3. Remanded from

Proceedingtate Courtppellate Court LI 4. Reinstated or L5. Transferred from AnotherReopenedistrict (Specify) 6. Multi-DistrictLitigationREQUESTED IN COMPLAINT: JURY DEMAND: s Yes 1 1 1 No (Check "Yes" only if demanded in complaint.)

under F.R.Cv.P. 23: El Yes I NoONEY DEMANDED IN COMPLAINT: $ According to Proof.. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. D o not cite jurisdictional statutes unless diversity.)This is an action involving claims of patent infringement under Title 35, United States Code.NATURE OF SUIT (Place an X in one box only).OTHER STATUTES CONTRACT REAL PROPERTY CONT. IMMIGRATION PRISONER PETITIONS PROPERTY RIGHTS375 False Claims Act

400 State

410 Antitrust430 Banks and Banking450 Commerce/ICCRates/Etc.

Li 110 Insurance120 Marine

Li 240 Torts to Land 462 NaturalizationApplication465 OtherImmigration Actions

Habeas Corpus:463 Alien Detainee510 Motions to VacateSentence530 General

Li 535 Death Penalty

Li 820 CopyrightsII 245 Tort Product 0 2 830 PatentLiabilityLi 290 All Other RealProperty

Li 840 TrademarkIII 130 Miller Act140 NegotiableInstrument150 Recovery ofLi Overpayment &Enforcement ofJudgmentLi 151 Medicare Act152 Recovery ofLi Defaulted StudentLoan (Excl. Vet.)153 Recovery ofOverpayment ofVet. Benefits160 Stockholders'Suits190 OtherContract195 ContractProduct LiabilityLi 196 Franchise

TORTSPERSONAL PROPERTY

SOCIAL SECURITYTORTS

PERSONAL PROPERTY Li 861 HIA (1395ff)Li 862 Black Lung (923)Li 863 DIWC/DIVVW (405 (g))Li 864 SSID Title XVI

310 Airplane315 Airplane

Li Product Liability320 Assault, Libel &Li Slander330 Fed. Employers'Liability340 Marine345 Marine ProductLiability

Li 350 Motor Vehicle355 Motor VehicleLi Product Liability360 Other PersonalLi Injury362 Personal Injury-Med Malpratice365 Personal Injury-Li Product Liability367 Health Care/PharmaceuticalPersonal InjuryProduct Liability368 Asbestos

0 Personal InjuryProduct Liability

370 Other FraudL71 Truth in Lending

380 Other PersonalLi Property Damage

385 Property DamageProduct Liability

Other:Li 540 Mandamus/OtherLi550 Civil Rights

555 Prison ConditionLi 560 Civil DetaineeConditions of

470 Racketeer Influ-i enced & Corrupt Org.i 480 Consumer Credit =No 865 RSI (405 (g))FEDERAL TAX SUITS490 Cable/Sat TV _ BANKRUPTCY Confinement 870 Taxes (U.S. Plaintiff or

Defendant)871 IRS-Third Party 26 USC7609

850 Securities/Corn- 422 Appeal 28USC 158423 Withdrawal 28Li USC 157

FORFEITURE/PENALTYM modities/Exchange , 625 Drug Related1I Seizure of Property 21USC 881690 Other

ctionsi 891 Agricultural Acts - CIVIL RIGHTSnvironmental 440 Other Civil Rights

441 VotingLi 442 Employment

443 Housing/

LABOR710 Fair Labor StandardsAct720 Labor/Mgmt.Relations

0 740 Railway Labor Act751 Family and Medical

Li Leave Act790 Other LaborLitigation791 Employee Ret. Inc.Security Act

i 895 Freedom of Info.Act896 Arbitration

899 Admin. Procedures

.III Accomodations445 American withLiisabilities-Employment446 American withDisabilities-Other448 Education

.REAL PROPERTYLi 210 LandCondemnationLi 220 Foreclosure1-1 230 Rent Lease &I- Ejectment

Agency Decision950 Constitutionality ofState Statutes

Case Number: SACV13-01461 AG (DFMx)IVIL COVER SHEETage 1 of 3) Attorneys (Firm Name, Address and Telephone Number. If you



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UNITED STATE ISTRICT COURT, CENTRAL DISTRIC - F CALIFORNIACIVIL COVER SHEET

Your answers to the questions below will determine the division of the Court to which this case will most likely be initially assigned. This initial assignme

Yes No STATE CASE WAS PENDING IN THE COU NTY OF: IN ITIAL D IVISION IN CACD IS :LI Los Angeles WesternVentura, Santa Barbara, or San Luis Obispo Western

LIII Orange Southern

Riverside or San Bernardino Eastern

If the United States, or one of its agencies or employees, is a party, is it:INITIAL

DIVISION INCACD IS:

A PLAINTIFF?Then check the box below for the county inwhich the majority of DEFENDANTS reside.

A DEFENDANT?Then check the box below for the county inwhich the majority of PLAINTIFFS reside.

YesNoLI Los Angeles II Los Angeles Western

Ventura, Santa Barbara, or San LuisObispo

Ventura, Santa Barbara, or San LuisObispo WesternL I I Orange LI Orange Southern

Riverside or San Bernardino Riverside or San Bernardino EasternLI Other LI Other Western

Question C: Location ofA.

Los AngelesCounty

B.Ventura, Santa Barbara, orSan Luis Obispo Counties

Orange County Riverside or SanBernardino Counties

E.Outside the CentralDistrict of California -

F.rOther

Indicate the location in which amajority of plaintiffs reside: 1Indicate the location in which amajor i ty o f defendants res ide: 1IIndicate the location in which amajority of claims arose: .....s either of the following true? If so, check the one that applies:

Cand no answers in Column D

be assigned to theDIVISION.to Question D, below.

question C2 to the right.

C.2. Is either of the fo llowing true? If so, check the one that a pplies:2 or more answers in Column D

LI only 1 answer in Column D and no answers in Column C

Your case will initially be assigned to theEASTERN DIVISION.Enter "Eastern" in response to Question D, below.If none applies, go to the box below.AL 2 or more answers in ColumnL I only 1 answer in Column CYour case will initiallySOUTHERNEnter "Southern" in responseIf none applies, answer

Your case will initially be assigned to theWESTERN D IVISION.

Enter "Western" in response to Question D below.

INITIAL DIVISION IN CACDor C above: L SOUTHERNIVIL COVER SHEETage 2 of 3

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UNITED STATE: ISTRICT COURT, CENTRAL DISTRIC' F CALIFORNIAC I V I L C O V E R S H E E T

Has this action been previously filed in this court and dismissed, remanded or closed? NOESIf yes, list case number(s):

. RELATED CASES: Have any cases been previously filed in this court that are related to the present case? 7 1 2 NOl YESIf yes, list case number(s):

Civil cases are deemed related if a previously filed case and the presen t case:

(Check all boxes that apply) El A. Arise from the same or closely related transactions, happenings, or events; orEl B. Call for determination of the same or substantially related or similar questions of law and fact; or[ 1 ] C. For other reasons would entail substantial duplication of labor if heard by different judges; or[1] D. Involve the same patent, trademark or copyright and one of the factors identified above in a, b or c also is present.

DATE: September fR , 2013Rona lOineThe CV-71 (JS-44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or

Nature of Suit Code Abbreviationubstantive Statement of Cause of ActionAll claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,86 1IAnclude claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.(42 U.S.C. 1935FF(b))862Lll 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; plus863IWCll 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, as863IVVWmended. (42 U.S.C. 405 (g))

864SIDll claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, aamended.865SIll claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended,(42 U.S.C. 405 (g))IVIL COVER SHEETage 3 of 3Case 8:13-cv-01461-AG-DFM Document 1 Filed 09/18/13 Page 11 of 11 Page ID #:11

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Aspen Medical Holdings Et. Al. v. Orthomerica Products Et. Al