Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 1 of 9 Page ID #:1

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'Taylor J. \Vright (California State Bar No. 288609) c:.u
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No. 4868; Pro Hac Vice Forthcom

n-ma!l. [email protected] "'1f:J::1 N
Adam B .. Beckstrom (Utah State Bar No. 14127; Pro Hac Vice Forth
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: 201 Soutl1 Main St. Sut'te !C
Irvine, California 92618 Salt Lake City, Utah 84 ll
Telephone: (949) 202-1900 Telephone: (435) 252-l 60
Facs1mile: (949) 453-1104 Facsimile: (435) 252-1361
Attorneys for Plaintiff Sundesa, LLC
UNITED STATES DISTRICT COURT
CENTRAL DISTRJCT OF CALIFORNIA
j"."'"
11 Sundesa, LLC, a Utah Limited Liability
Company,
Civil Action No. JLS (DFMx)
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Plaintiff,
V.
Chemi-Source, Inc., a California
Corporation, and Metabolic Response
Modifiers, Inc., a California Corporation,
Defendants.
COMPLAINT FOR PATENT
INFRINGEMENT
[Demand for Jury Trial]
COMPLAINT FOR PATENT INFRJNGEMENT
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 2 of 9 Page ID #:2
1 Plaintiff Sundesa, LLC ("Sundesa") complains against Chemi-Source, Inc. and
2 Metabolic Response Modifiers, Inc. (collectively "Defendants") for the causes of action
3 alleged as follows:
4 THE PARTIES
5 1. Sundesa is a limited liability company duly organized and existing under the
6 laws of the State of Utah, with its principal place of business located at 284 South 700
7 West, Pleasant Grove, Utah 84062.
8 2. Sundesa alleges Chemi-Source, Inc. is a corporation organized and existing
9 under the laws of the State of California with its principal place of business located at 5
10 Hubble, Irvine, California 92618.
11 3. Sundesa alleges Metabolic Response Modifiers, Inc. is a corporation
12 organized and existing under the laws of the State of California with its principal place of
13 business located at 2633 W. Pacific Coast Highway B, Newport Beach, California 92663.
14 JURISDICTION AND VENUE
15 4. This is a civil action for patent infringement arising under the patent laws of
16 the United States 35 U.S.C. 1 et seq., including 35 U.S.C. 271.
17 5. This Court has original jurisdiction over the subject matter of this action
18 under at least 28 U.S.C. 1331 and 1338(a).
19 6. This Court has personal jurisdiction over Defendants because Defendants
20 have purposely availed themselves of the privileges and benefits of the laws of the State
21 of California.
22 7. Defendants do, and have done, substantial business in this judicial District,
23 including: (i) regularly doing business or soliciting business by virtue of Defendants'
24 nationwide sales and offers to sell through interactive and commercial website( s) which
25 direct(s) Defendants' services and products to California residents; and (ii) engaging in
26 other persistent courses of conduct, and/or deriving substantial revenue from products
27 and/or services provided to persons in this District and State.
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1
COMPLAINT FOR PATENT INFRINGEMENT
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 3 of 9 Page ID #:3
1 8. This Court's exercise of personal jurisdiction over Defendants is consistent
2 with the Constitutions of the United States and the State of California.
3 9. Venue is proper in this judicial district under at least 28 U.S.C. 1391 and
4 1400.
5 FACTUALBACKGROUND
6 10. Sundesa' s technological innovations are protected by, inter alia, a portfolio
7 of utility and design patents, including United States Design Patent No. D510,235 (the
8 "'235 Design Patent").
9 11. Sundesa has marked all products embodying the claims of the '23 5 Design
10 Patent since introduction to the market.
11 12. Sundesa is an exclusive licensee of the '235 Design Patent and has been
12 granted all rights thereunder, including the right and standing to enforce the '235 Design
13 Patent.
14 13. Defendants are in the business of selling nutritional supplements and
15 accessories. In particular, Defendants sell and offer for sale, inter alia, MRM Shaker
16 Cups that embody the claimed design of the '235 Design Patent (the "Accused
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Products").
14.
15.
The Accused Products have no substantial non-infringing uses.
The design of the Accused Products are substantially the same as the design
20 that is the subject matter of the '235 Design Patent.
21 16. Furthermore, the design of the Accused Products is so similar to the design
22 that is the subject matter of the '235 Design Patent that customers are likely to be
23 deceived and persuaded to buy the Accused Products thinking they are actually buying
24 products protected by the '23 5 Design Patent.
25 17. On information and belief, Defendants had pre-suit knowledge of the '23 5
26 Design Patent at least because ofSundesa's marking of its products embodying the
27 claims of the '235 Design Patent. Commensurate with this filing, Sundesa mailed
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2
COMPLAINT FOR PATENT INFRINGEMENT
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 4 of 9 Page ID #:4
1 Metabolic a courtesy copy of this Complaint and the '235 Design Patent. Thus, Metabolic
2 has had knowledge of the '235 Design Patent at least since filing of this Complaint.
3 FIRST CLAIM FOR RELIEF
4 (Infringement of the '235 Design Patent)
5 18. By this reference Sundesa realleges and incorporates the foregoing
6 paragraphs as though fully set forth herein.
7 19. Defendants have infringed, and continue to infringe the '235 Design Patent
8 by offering to sell, selling, or importing, in this District, and elsewhere in the United
9 States, the Accused Products, the design of which is substantially the same as the
10 ornamental design ofthe '235 Design Patent.
11 20. Defendants' actions constitute infringement of the '235 Design Patent in
12 violation of35 U.S.C. 271.
13 21. Sundesa has sustained damages and will continue to sustain damages as a
14 result of Defendants' aforementioned acts of infringement.
15 22. Sundesa is entitled to recover damages sustained as a result of Defendants'
16 wrongful acts in an amount to be proven at trial.
17 23. Defendants' infringement ofSundesa's rights under the '235 Design Patent
18 will continue to damage Sundesa's business, causing irreparable harm, for which there is
19 no adequate remedy at law, unless Defendants are enjoined by this Court.
20 24. Defendants have willfully infringed the '235 Design Patent, entitling
21 Sundesa to increased damages under 35 U.S.C. 284 and to attorneys' fees and costs
22 incurred in prosecuting this action under 35 U.S. C. 285.
23 25. Alternatively, Plaintiff is entitled to recover Defendants' total profits from
24 their sale of the Accused Products under 35 U.S.C. 289.
25 PRAYER FOR RELIEF
26 Sundesa prays for judgment as follows:
27 A. A judgment finding Defendants liable for infringement ofthe claims ofthe
28 '235 Design Patent;
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COMPLAINT FOR PATENT INFRINGEMENT
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 5 of 9 Page ID #:5
1 B. Orders of this Court temporarily, preliminarily, and permanently enjoining
2 Defendants, their agents, servants, and any and all parties acting in concert with any of
3 them, from directly or indirectly infringing in any manner any of the claims ofthe'235
4 Design Patent, pursuant to at least 35 U.S.C. 283;
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c. An award of damages adequate to compensate Sun des a for Defendants'
6 infringement of the '23 5 Design Patent, in an amount to be proven at trial, or in the
7 alternative, an award of Defendants' total profits under 35 U.S.C. 289;
8 D. An award of treble Sundesa's damages, pursuant to at least 35 U.S.C. 284;
9 E. A declaration that this is an exceptional case and that Sundesa be awarded its
10 attorney fees and expenses, pursuant to at least 35 U.S.C. 285;
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F. An award of Sundesa's costs in bringing this action, pursuant to all
12 applicable state statutory and common law, including at least 35 U.S.C. 284;
13 G. An award ofSundesa's attorney fees, pursuant to all applicable state
14 statutory and common law.
15 H. Prejudgment interest, pursuant to at least 35 U.S.C. 284;
16 I. Post-judgment interest, pursuant to at least 28 U.S.C. 1961(a); and
17 J. For such other and further relief as the Court deems just and equitable.
18 DEMAND FOR JURY TRIAL
19 Sundesa demands trial by jury on all claims and issues so triable.
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21 DATED: December 20,2013
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Larry R. Laycock
Taylor J. Wright
Adam B. Beckstrom
MASCHOFF BRENNAN
B y : ~ < ~
Attorneys for Plaintiff
Sundesa, LLC
4
COMPLAINT FOR PATENT INFRINGEMENT
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 6 of 9 Page ID #:6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NOTICE OF ASSIGNMENT TO UNITED STATES JUDGES
This case has been assigned to District Judge
___ ____ and the assigned
Magistrate Judge is Douglas F. McCormick
The case number on all documents filed with the Court should read as follows:
SACV13-01981 JLS (DFMx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of
California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge.
December 20, 2013
Date
Clerk, U. S. District Court
By M. Barr
Deputy Clerk
NOTICE TO COUNSEL
A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is
filed, a copy of this notice must be served on all plaintiffs).
Subsequent documents must be filed at the following location:
0 Western Division
312 N. Spring Street, G-8
Los Angeles, CA 90012
[g) Southern Division
411 West Fourth St., Ste 1053
Santa Ana, CA 92701
0 Eastern Division
3470 Twelfth Street, Room 134
Riverside, CA 92501
Failure to flle at the proper location will result in your documents being returned to you.
CV-18 (08/13) NOTICE OF ASSIGNMENT TO UNITED STATES JUDGES
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 7 of 9 Page ID #:7
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
f. (a) PLAINTIFFS {Check box if you are representing yourself 0 ) DEFENDANTS (Check box if you are representing yourself 0 )
LlC. a Utah limited liability Company
ChemiSource, Inc., a California Corporation. hnd Metabolic Respon$e Modifiers, inc.,
a California Corporation
(b) County of Residence of First Listed Plaintiff Utah County, UT County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINDFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
---------------------------,--------------------------------
(c) Attorneys {Firm Nome, Address and Telephone Number) If you are Attorneys (Firm Name, Address and Telephone Number) If you are
representing yourself, provide the same information. representing yourself, provide the same information.
Maschoff Brennan & Maschoff Brennan
201 South Main Street, Suite 600 20 Pacifica, Suite 1130
Salt Lake City, UT 84111 Irvine, CA 92618
(435) 2521360 (949) 2021900
II. BASIS OF JURISDICTION (Place an X in one box only.)
0 1. U.S. Government
Plaintiff
0 2. U.S. Government
Defendant
[EJ3. Federal Question {U.S.
Government Not a Party)
0 4. Diversity (Indicate Citizenship
of Parties in Item Ill)
IV. ORIGIN (Place an X in one box only.)
[E) i. Original O 2. Removed from O 3. Remanded from
Proceeding State Court Appellate Court
Ill. CITIZENSHIP OF PRINCIPAL PARTIES-For Diversity Cases Only
{Place an X In one box for plaintiff and one for defendant)
PTF DEF PTF
0
1
0
1
Incorporated or Principal Place 0
4
of Business in this State
Citizen ofThis State
Citizen of Another State 0 2 0 Incorporated ar>d Principal Place 0
of Business In Another State
Citizen or Subject of a
Foreign Country
030
Foreign Nation
4 R
d 6. Multi
0
. emstate or O 5. Transfened from Another 0 District
Reopened District !Specify) Litigation
V. REQUESTED IN COMPlAINT: JURY DEMAND: [E) Yes 0 No (Check "Yes" only if demanded in complaint.)
CLASS ACTION under F.R.Cv.P. 23: 0 Yes [E) MONEY DEMANDED IN COMPLAINT: S subject to proof
DEF
0 4
0 5
VL CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.)
35 U.S.C Section 271 & 35 U.S.C. Section 284; Patent Infringement
VII. NATURE OF SUIT (Place an X in one box only).
' .,
0 375 False Claims Act
400 State
0 Reapportionment
0 41 0 Antitrust
110 Insurance
0 120Marine
0 130 Miller Act
O 430 Banks and Banking 0
140 Negotiable
Instrument
0
450 Commerce/!((
Rates/Etc.
0 460 Deportation
0
470 Racketeer lnflu
enced & Corrupt Org.
0 480 Consumer Credit
0 490 Cable/Sat TV
0
850 Securities/Com
modi ties/Exchange
0
890 Other Statutory
Actions
0 891 Agricultural Acts
0
893 EJWironmental
Matters
0
895 Freedom of Info.
Act
0 896 Arbitration
0
950 Constitution<Jiity of
State Statutes
FOR OfFICE USE ONLY:
CV71 (1 1/13)
150 Recovery of
0 Overpaymem &
Enforcement of
Judgment
0 151 Medicare Act
152 Recovery of
0 Defaulted Student
Loan (txcl. Vet.)
153 Recovery of
0 Overpayment of
Vet. Benefits
0
160 Stockholders'
Suits
0 1900ther
Contract
0
195 Contract
Product Liability
(a!e Number:
315 Airplane
Product liability
320 Assault, Ubel &
Slander
330 Fed. Employers'
Liability
340 Marine
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury
Med Malpratke
365 Personal Injury
Product liability
367 Health Care/
Pharmaceutical
Personal injury
Product liability
368
--,
0
462 Naturalization
Application
0
445 American with
Disabilities-
Employment
446 American with
Disabilities-Other
448 Education
Habeas Corpus:
D 463 Alien Detainee
O 51 0 Motions to Vacate
Sentence
0
720 labor/Mgmt.
Relations
0 740 Railway labor Act
0
751 Family and Medical
leave Act
0
790 Oiher Labor
litigation
0
791 Employee Ret. Inc.
Act
SACV13-01981 JLS (OFMx)
CIVIL COVER SHEET
870 Taxes (U.S. Plaintiff or
Defendant)
871 IRS-Third Party 26 USC
7609
Page 1 of 3
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 8 of 9 Page ID #:8
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
VIII. VENUE: 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 assignment
is subject to change, in accordance with the Court's General Orders, upon review by the Court of your Complaint or Notice of Removal.
Question A: Was this case removed from
state court?
0 Yes No 0 Los Angeles
If "no, "go to Question B. If "yes," check the
box to the right that applies, enter the
corresponding division in response to
Question D, below, and skip to Section IX.
O Ventura, Santa Barbara, or San Luis Obispo
Western
0 Orange
Southern
0 Riverside or San Bernardino
Eastern
Question B: Is the United States, or one of
its agencies or employees, a party to this
action?
0 Yes No
If "no, "go to Question C. If "yes," check the
box to the right that applies, enter the
corresponding division in response to
Question D, below, and skip to Section IX.
Indicate the location in which a
majority of plaintiffs reside:
Indicate the location in which a
majority of defendants reside:
0 Los Angeles
O Ventura, Santa Barbara, or San Luis
Obispo
O Orange
0 Riverside or San Bernardino
O Other
0 Los Angeles
O Ventura, Santa Barbara, or San Luis
Obispo
0 Orange
0 Riverside or San Bernardino
0 Other
Western
Western
Southern
Eastern
Western
C.1. Is either of the following true? If so, check the one that applies:
[8.] 2 or more answers in Column C
C.2. Is either of the following true? If so, check the one that applies:
D only 1 answer in Column C and no answers in Column D
Your case will initially be assigned to the
SOUTHERN DIVISION.
D 2 or more answers in Column D
D only 1 answer in Column D and no answers in Column C
Your case will initially be assigned to the
EASTERN DIVISION.
Enter "Southern" in response to Question D, below. Enter "Eastern" in response to Question D, below.
CV-71 {11/13)
If none applies, answer question C2 to the right. .....
Your case will initially be assigned to the
WESTERN DIVISION.
If none applies, go to the box below.
Enter "Western" in response to Question D below.
SOUTHERN
CIVIL COVER SHEET Page 2 of3
Case 8:13-cv-01981-JLS-DFM Document 1 Filed 12/20/13 Page 9 of 9 Page ID #:9
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
IX(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed?
~ NO D YES
If yes, list case number(s):
IX(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case?
D NO ~ Y S
If yes, list case number(s): Cases have not been assigned case numbers. A separate Notice of Related Cases will be filed once cases are assigned.
Civil cases are deemed related if a previously filed case and the present case:
(Check all boxes that apply)
0 A. Arise from the same or closely related transactions, happenings, or events; or
0 B. Call for determination of the same or substantially related or similar questions of law and fact; or
~ C. For other reasons would entail substantial duplication of labor if heard by different judges; or
~ D. Involve the same patent, trademark or copyright. and one of the factors identified above in a, b or c also is present.
X. SIGNATURE OF ATTORNEY
(OR SELF-REPRESENTED LITIGANT):
DATE:
Notice to Counsel/Parties: The CV-71 (JS44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or
other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1974, is required pursuant to Local Rule 3-1 is not filed
but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet).
Key to Statistical codes relating to Social Security Cases:
Nature of Suit Code Abbreviation
861 HIA
862 BL
863 DIWC
863 DIWW
864 SSID
865 RSI
CV-71 (11/13)
Substantive Statement of Cause of Action
All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,
include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.
(42 U.S.C. 1935FF(b))
All 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; plus
all 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, as
amended. (42 U.S.C. 405 (g))
All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as
amended.
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.
(42 u.s.c. 405 (g))
CIVIL COVER SHEET Page3 of3