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.

Richard T. Mcree v. Richard N. Goldman

March 19, 2012

RICHARD T. MCREE,
PLAINTIFF,
v.
RICHARD N. GOLDMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING DEFENDANT DOUGLAS E. GOLDMAN'S MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART CITY AND COUNTY OF SAN FRANCISCO'S JOINDER IN MOTION TO DISMISS; GRANTING UNITED STATES' MOTION TO DISMISS; AND DENYING PLAINTIFF'S MOTION TO COMPEL

Plaintiff Richard T. McRee ("Plaintiff") brings this action against Defendants Douglas E. Goldman ("D. Goldman"), the City and County of San Francisco ("CCSF"), the United States of 20 America, Richard N. Goldman's Estate ("R. Goldman"), Willie L. Brown, Jr. ("Brown"), Gavin 21 Newsom ("Newsom"), and Bevan Dufty ("Dufty") (collectively "Defendants"), alleging patent 22 infringement and a variety of constitutional and common law claims. See ECF No. 61. Before the 23 Court are four motions: (1) D. Goldman's Motion to Dismiss Plaintiff's First Amended Complaint, 24

ECF No. 76 ("Goldman Mot."); (2) CCSF's Joinder in D. Goldman's Motion to Dismiss, ECF No. 25

86 ("CCSF Mot."); (3) the United States' Motion to Dismiss Plaintiff's First Amended Complaint, 26

ECF No. 89 ("U.S. Mot."); and (4) Plaintiff's Ex Parte Motion to Compel Response from the 27 Richard N. Goldman Estate, ECF No. 88 ("Mot. to Compel"). The Court held a hearing on D. 28 Goldman's and CCSF's motions to dismiss on March 8, 2012. Pursuant to Civil Local Rule 7-1(b), 2 the Court finds the United States' motion to dismiss suitable for determination without oral 3 argument and hereby VACATES the May 3, 2012 hearing. Having considered the submissions 4 and arguments of the parties, and the relevant law, the Court hereby GRANTS D. Goldman's 5 motion to dismiss all claims against him, but grants leave to amend as to Plaintiff's claim for 6 inducement of infringement; GRANTS IN PART and DENIES IN PART CCSF's Joinder in D. 7

Goldman's Motion to Dismiss; and GRANTS the United States' motion to dismiss all claims 8 against it. Moreover, for the reasons stated in Section IV, infra, the Court DENIES Plaintiff's 9 Motion to Compel a Response from the Richard N. Goldman Estate.*fn1

I.BACKGROUND

A.Factual Background

For purposes of ruling on the motion to dismiss, the Court takes the facts as alleged in Plaintiff's First Amended Complaint ("FAC") to be true and construes them in the light most 14 favorable to Plaintiff, the nonmoving party. See Colony Cove Props., LLC v. City of Carson, 640 15 Patent No. 6,003,269 (the "'269 Patent"), entitled "Retractable Covering for Spaces" ("RCS"), 17 which issued on December 21, 1999. FAC ¶ 1; see ECF No. 62 (FAC Ex. A). Plaintiff uses the 18 registered trademark "SkyCover" to identify embodiments of the '269 Patent. FAC ¶ 1. 19 20

F.3d 948, 955 (9th Cir. 2011).*fn2 Plaintiff is a registered architect, inventor, and sole owner of U.S. 16

Association ("SGFA") has organized and presented, through charitable donations, a series of 4 admission-free summer concerts open to the public and staged in Stern Grove's natural 5 amphitheater. D. Goldman became the Director of SGFA in 1996. Id. ¶ 46. 6

when he saw in the newspaper that the newly renovated Stern Grove -- a public park owned and 8 maintained by CCSF -- featured an embodiment of the '269 Patent covering the new performance 9 stage ("Stern Grove Canopy"). FAC ¶¶ 116, 120-21. The $15 million Stern Grove park renovation 10 project was funded in large part by D. Goldman and R. Goldman and was jointly overseen by The site of the alleged infringement is Stern Grove, a public park owned and maintained by

CCSF, which features an outdoor performance venue. Since 1938, the Stern Grove Festival 3

Plaintiff discovered Defendants' alleged infringement of the '269 Patent on June 20, 2005,

CCSF and the Stern Grove Festival Association ("SGFA"), of which D. Goldman is the Director. 12

Id. ¶¶ 60, 63, 78, 98, 127. Plaintiff alleges that he had previously shared his invention with CCSF 13 in 1998 during a meeting with the Mayor's Office, under the auspices of a signed Confidential 14

Disclosure Agreement, and that Defendants' infringement was therefore willful. Id. ¶ 55. Plaintiff 15 further alleges that, upon discovery of the alleged infringement, he immediately notified 16

Defendants, and for nearly six years thereafter diligently pursued non-litigation strategies for 17 resolving this dispute without resort to the courts. Id. ¶¶ 67, 120, 122, 126.

patent infringement; (2) unconstitutionality; (3) fraud; (4) unfair competition; and (5) negligence. 21

ECF No. 1. On October 12, 2011, the Court granted Defendant D. Goldman's motion to dismiss 22 all claims, with leave to amend. ECF No. 60 ("Order"). On November 8, 2011, Plaintiff filed his 23

FAC, which asserts the same five causes of action, and which repeats many of the same factual 24 allegations as in the original Complaint. However, in response to the October 12, 2011 Order, 25

Plaintiff adds CCSF and the United States as Defendants, and elaborates on why he believes he is 26 entitled to equitable tolling. See generally FAC. D. Goldman filed a Motion to Dismiss Plaintiff's 27

B.Procedural History

Plaintiff filed his original Complaint on March 3, 2011, alleging five causes of action: (1)

FAC on November 28, 2011, see ECF No. 76; and CCSF filed a Joinder in that Motion on 28

December 22, 2011, see ECF No. 86. The United States filed a separate Motion to Dismiss on 2 January 20, 2012. See ECF No. 89. Plaintiff filed Oppositions to all three motions. See ECF No. 3

80 ("Opp'n to Goldman"); ECF No. 92 ("Opp'n to CCSF"); ECF No. 104 ("Opp'n to U.S.").4 it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the 7 plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. 8

II.LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if Corp. v. Twombly, 550 U.S. 544, 547 (2007). This "facial plausibility" standard requires the 9 plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted 10 unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). In deciding whether the plaintiff has stated a claim, the court must assume the plaintiff's allegations are true and draw 12 all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 13 (1982) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9 (1980). However, the court is not required to 15 accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or 16 unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 17

A Rule 12(b)(6) motion to dismiss on statute of limitations grounds may be granted "only if 18 the assertions of the complaint, read with the required liberality, would not permit the plaintiff to 19 prove that the statute was tolled." Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000) 20 (holding that a motion to dismiss on statute of limitations grounds should not be granted if "the 22 complaint, liberally construed in light of our 'notice pleading' system, adequately alleges facts 23 showing the potential applicability of the equitable tolling doctrine."). "'A complaint cannot be 24 dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would 25 establish the timeliness of the claim.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 26 1206 (9th Cir. 1995)).

1987). Pro se pleadings are to be construed liberally. Boag v. MacDougall, 454 U.S. 364, 365 14 (citations omitted); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993) 21 592 F.3d 954, 969 (9th Cir. 2010) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 27 justice so requires." Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010); see 3 Fed. R. Civ. P. 15(a). This is particularly true where the plaintiff is proceeding pro se. See Lopez 4 v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Nonetheless, leave to amend may be denied if 5 allowing amendment would unduly prejudice the opposing party, cause undue delay, or be futile. 6 Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008). In addition, a motion to 7 dismiss based on time bars may be granted without leave to amend where the face of the complaint 8 establishes "facts that foreclose[] any showing of reasonable diligence." Von Saher, 592 F.3d at 9 "'discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.'" Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th 12 Generally, when a complaint is dismissed, "leave to amend shall be freely given when 969 (discussing Orkin v. Taylor, 487 F.3d 734, 742 (9th Cir. 2007)). Finally, the Court's 10 Cir. 2011) (quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).13

infringed the '269 [P]atent by earmarking and donating major charitable [f]unds from [his] non-18 profit family charity Funds." FAC ¶ 165. Defendant D. Goldman moves to dismiss Plaintiff's 19 patent infringement claim against him. 20

III. DISCUSSION OF MOTIONS TO DISMISS

A.Patent Infringement

1.D. Goldman

Plaintiff's FAC alleges that D. Goldman "willfully, directly and indirectly induced and

The relevant provisions of federal patent law provide:

(a) . . . whoever without authority makes, uses, offers to sell, or sells any patented

invention, within the United States . . . infringes the patent. (b) Whoever actively induces infringement of a patent shall be liable as an infringer. (c) Whoever offers to sell or sells

within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.

35 U.S.C. § 271.

to state a claim against D. Goldman personally for direct infringement" under 35 U.S.C. § 271(a); 3 rather, "allegations of infringement appear[ed] to be directed at SGFA, of which D. Goldman is the 4 chairman of the Board." Order at 7. The Court therefore dismissed Plaintiff's direct infringement 5 claims against D. Goldman with leave to amend, allowing Plaintiff the opportunity to allege 6 grounds for piercing the corporate veil so as to hold D. Goldman personally liable for SGFA's 7 direct infringement. See id. at 8-9. 8

9 alter ego organization[s]," FAC ΒΆΒΆ 127, 162, Plaintiff does not allege facts adequate to state a claim 10 against D. Goldman. Under patent law, "the ...


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.