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Bylin Heating Systems, Inc. et al v. Thermal Technologies

December 20, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently pending before the court are two motions to compel filed by plaintiffs Bylin Heating Systems, Inc. ("Bylin Heating") and Roof Ice Melt Systems, Inc. (Dkt. Nos. 35, 44.)

These motions seek to compel the production of documents and further responses to plaintiffs' Requests for Production, Sets One, Two, and Three; Requests for Admission, Set Two;*fn1 and Interrogatories, Set One, propounded on defendant Thermal Technologies, Inc. ("TTI"). Pursuant to the court's order, the parties filed their joint statement and supporting documentation regarding these motions to compel on December 10, 2012. (Dkt. No. 48.)

A hearing on the motions was conducted on December 20, 2012. Elizabeth Stallard appeared on behalf of plaintiffs and defendant's former counsel, Krista Dunzweiler, specially appeared on behalf of defendant.*fn2 Despite two express court orders, no new counsel or other representative of defendant was present at the hearing. (Dkt. No. 52.) After considering the parties' joint statement, supporting documentation, and the oral argument at the hearing, the court grants plaintiffs' motions along the terms outlined in this order.


The background facts are taken from the parties' joint statement unless otherwise indicated. Plaintiff Bylin Heating engineers and supplies commercial and residential winter freeze protection products, including heated roof panel products. Bylin Heating is the exclusive licensee of a patent for an inventive ice dam melting apparatus and system (the "858 Patent"). Various Bylin Heating products incorporate technology from the 858 Patent and are sold in conjunction with the trademarks "Roof Ice Melt Systems," "RIM," and "RIM Systems" of which Bylin Heating is also the exclusive owner. (Dkt. No. 48 at 2.)

In March 2007, Bylin Heating first sued defendant TTI for infringing on Bylin Heating's patent and trademark rights. Bylin Heating claimed that defendant was manufacturing and selling products that were infringing the 858 Patent, and was also using the domain name in violation of Bylin Heating's trademark rights. Subsequently, in March 2009, Bylin Heating and defendant signed a settlement agreement resolving the 2007 lawsuit. The settlement agreement included various provisions and drawings regarding what would constitute a breach of that agreement. (Dkt. No. 48 at 2-3.)

Thereafter, on May 23, 2011, the instant litigation ensued. (Dkt. No. 1.) Plaintiffs allege that defendant breached the settlement agreement by manufacturing and selling certain products in violation of the settlement agreement, failing to transfer the domain name for to Bylin Heating, and continuing to use that domain name to divert customers from Bylin Heating. (Dkt. No. 48 at 3.)

Defendant denies these allegations. Defendant contends that, according to the settlement agreement, its panels would not breach the agreement if specified heating elements were used with the panel systems. According to defendant, it nevertheless voluntarily re-designed its panel systems in accordance with the drawings in the settlement agreement, and replaced old panel systems with new panel systems about six months after execution of the settlement agreement. Defendant maintains that during the brief period in 2009 when old panel systems were sold, only the specified heating elements permitted by the settlement agreement were used. Furthermore, defendant claims that it authorized and made efforts to transfer the domain name. However, because defendant did not own the domain name, plaintiffs had to contact the service provider or owner of the domain name to effectuate the transfer, and plaintiffs allegedly did not do so until after this action was filed. The domain name has since been transferred to plaintiffs. (Dkt. No. 48 at 3.) Defendant has asserted counterclaims for declaratory relief, rescission of the settlement agreement, trade libel, slander of title, defamation, unfair competition, and intentional interference with prospective economic advantage. (Dkt. No. 20.)

On April 19, 2012, the district judge entered a pretrial scheduling order requiring all fact discovery to be completed by December 21, 2012. (Dkt. No. 26.) Plaintiffs served their Requests for Production, Set One, and Interrogatories, Set One, on July 24, 2012.*fn3 (Dkt. No. 48 at 4.) Defendant served initial responses to these discovery requests on August 27, 2012, but did not produce any responsive documents at that time pending the negotiation, execution, and court approval of a stipulated protective order. (Id. at 4-5.) The court ultimately entered a stipulated protective order on November 15, 2012 (dkt. no. 38), and on November 29, 2012, defendant produced 104 pages of documents and served supplemental responses to the first set of interrogatories, but did not serve supplemental responses to the first set of requests for production. (Dkt. No. 48 at 6.)

Additionally, on October 17, 2012, plaintiffs propounded their Requests for Production, Set Two, and on October 22, 2012, plaintiffs propounded their Requests for Production, Set Three, and Requests for Admission, Set Two. (Dkt. No. 39-1, ¶¶ 15, 18.)*fn4

Although there was some delay in receiving defendant's responses to these discovery requests due to mail issues, plaintiffs received responses to the Requests for Production, Set Three, and the Requests for Admission, Set Two, by November 28, 2012, and responses to the Requests for Production, Set Two, by December 4, 2012, and plaintiffs do not contend that the responses were untimely served. (Dkt. No. 48 at 7-9.) Instead, plaintiffs' motion concerns the substance of defendant's responses.

In the meantime, on October 24, 2012, defendant's counsel filed a motion to withdraw as counsel for defendant based on failure to pay outstanding attorneys' fees. (Dkt. No. 32.)

On December 11, 2012, the day after the parties' joint statement was filed, the district judge extended the deadline for completion of fact discovery to February 1, 2013. (Dkt. No. 49.) Thereafter, on December 14, 2012, the district judge granted defendant's counsel's motion to withdraw and ...

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