Defendant Sanctioned for Improper Motion to Dismiss Based Upon Defense of Res Judicata
In Heinz Kettler Gmbh v. Little Tikes Co., Civil Action No. 2:09cv500 (E.D. Va.), Judge Doumar denied Little Tikes’ motion to dismiss Kettler’s claims for patent infringement and awarded sanctions against Little Tikes for filing the motion to dismiss in the first place. The case against Little Tikes follows an earlier case that Kettler brought against Rand International and Little Tikes, Heinz Kellter GmbH v. Rand International, Case No. 1:08cv679 (E.D. Va.), for infringement of Kettler’s patents by certain tricycles sold by Rand International and Little Tikes. In that case, Kettler agreed to dismiss its claims against Little Tikes relating to the Ofrat Model No. 129H tricycle at issue based upon Little Tikes’ multiple representations, in discovery responses and correspondence from Little Tikes’ counsel, that Little Tikes and did not manufacture, sell or distribute the Ofrat Model No. 129H tricycles, and that Little Tikes was nothing more than a trademark licensor. Kettler later learned that these representations were, “at best, misinformation” (according to Judge Doumar), and brought suit against Little Tikes and its parent, MGA Entertainment, Inc., for patent infringement by Little Tikes’ Product No. 615221.
Little Tikes and MGA thereafter moved to dismiss the Complaint on the grounds that Kettler’s claims were barred by the doctrines of res judicata and implied license arising from Kettler’s dismissal of Little Tikes in the earlier Randcase. The Court soundly rejected these arguments, finding that Kettler's Complaint was directed to Little Tikes Product No. 615221, not the Ofrat Model No. 129H that was the subject of the Rand case., thus making Defendants' assertion of res judicata "unnecessary, and therefore, improper." For this reason, the Court awarded Kettler its reasonable fees and costs in "answering the totally unnecessary Motion to Dismiss as a sanction against the Defendants since they were responsible for the misinformation [in the Rand case] and the Motion." Kettler was represented by Troutman Sanders' John Lynch and Ethan Ostroff. Here is the full opinion.
