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United States of America, Ex. Rel., Zachary Hallstrom v. Aqua Flora

May 2, 2011

UNITED STATES OF AMERICA, EX. REL., ZACHARY HALLSTROM, PLAINTIFF,
v.
AQUA FLORA, INC.; KING BIO, INC., AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.



ORDER

This matter comes before the court upon Zachary Hallstrom's ("plaintiff") request for a jury trial. (ECF 24.) The court hereby GRANTS plaintiff's request.

I. PROCEDURAL HISTORY

Plaintiff filed the complaint in this court on June 14, 2010 alleging one cause of action: false patent marketing in violation of 35 U.S.C. § 292(a). (ECF 1.) Plaintiff seeks:

1. A judicial determination that Defendants have violated 35 U.S.C. §292 by falsely advertising and marking AquaFlora products as "patented" for the purpose of deceiving the public;

2. An order fining Defendants for false marketing in an amount that is reasonable in light of the total revenue and gross profit derived from the sale of falsely marked or advertised AquaFlora products and the degree of intent to falsely mark which is proven, with half of the fine paid to the United States Government and the other half to plaintiff;

3. An order preliminarily and permanently enjoining Defendants and their affiliates from committing new acts of false patent marketing and to cease all existing acts of false patent marketing;

4. An award of attorneys' fees and costs incurred in bringing and maintaining this action, in part because it is "exceptional" for purposes of the Patent Act; and

5. Any other such relief to which plaintiff, the United States, or the general public may be entitled.

(Compl. at 9.) Plaintiff demanded a jury trial in his complaint. (Id. at 1, 10.)

Defendants filed their answer on October 28, 2010, including general denials and affirmative defenses, as well as a jury demand. (ECF 21.) However, defendants indicated in the joint pretrial statement filed November 10, 2010 that plaintiff is not entitled to a jury. (ECF 22 ¶ N.)

Plaintiff filed the present brief in support of the right to trial by jury on December 3, 2010. (ECF 24.) Defendants responded on December 17, 2010. (ECF 25.) Plaintiff replied on December 30, 2010. (ECF 26.) A hearing on this matter, set for January 14, 2011, was vacated (ECF 27), and then this case was reassigned to the undersigned on January 20, 2011 before resolution of the jury trial question. (ECF 28.) The matter is now submitted on the papers.

II. ANALYSIS

A. Standard

The Seventh Amendment to the U.S. Constitution states: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ." The Federal Rules of Civil Procedure provide, in pertinent part: "On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand -- which may be included in a pleading -- no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand [with the court] in accordance with Rule 5(d)." Fed. R. Civ. P. 38(b). The Rules further provide: "When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all ...


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