Case 6:16-cv-00680-RBD-GJK Document 18 Filed 08/10/16 Page 1 of 4 PageID 296
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`ORLANDO DIVISION
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`Civil Action No. 6:16-cv-00680-Orl-37GJK
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`LIGHTING SCIENCE GROUP
`CORPORATION,
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`Plaintiff,
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`v.
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`ENERGY EFFICIENT LIGHTING
`COMPANY LIMITED,
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`Defendant.
`______________________________/
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`MEMORANDUM IN SUPPORT OF PLAINTIFF’S
`MOTION FOR FINAL DEFAULT JUDGMENT
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`Plaintiff Lighting Science Group Corporation (“Lighting Science” or “Plaintiff”), by and
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`through the undersigned counsel, submits this memorandum in support of its Motion for Final
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`Default Judgment against Defendant Energy Efficient Lighting Company Limited (“EEL” or
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`“Defendant”), and states as follows:
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`I.
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`Nature of the Action
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`This is an action for patent infringement under 35 U.S.C. §271 et seq. Plaintiff is the
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`owner of Patent No. 8,201,968 (the “’968 Patent”), Patent No. 8,672,518 (the “’518 Patent”), and
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`Patent No. 8,967,844 (the “’844 Patent”). Defendant committed infringement of each of the
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`aforementioned patents by making, using, selling or offering to sell in or importing into the United
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`States its LED Recessed Retrofit Downlight RD-LED900-12-3000K product (the “Infringing
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`Product”). The Infringing Product infringes claims encompassed in each of the ‘968 Patent, the
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`‘518 Patent, and the ‘844 Patent. Further, the Defendant’s exploitations of the Infringing Product
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`Case 6:16-cv-00680-RBD-GJK Document 18 Filed 08/10/16 Page 2 of 4 PageID 297
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`have induced and contributed to further infringement of the ‘968 Patent, the ‘518 Patent, and the
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`‘844 Patent committed by the Defendant’s distributors, retailers, and licensees. The Defendant’s
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`infringement and unlawful sales activity was willful and intentional, and has caused countless,
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`ongoing, and irreparable harm to the Plaintiff.
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`II.
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`Judgment By Default Should be Entered Against the Defendant Pursuant to
`Federal Rule of Civil Procedure 55(b)(2)
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` Fed. R. Civ. P. 55(b)(1) states, in relevant part, that, “[i]f the Plaintiff’s claim is for a sum
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`certain or a sum that can be made certain by computation, the clerk … must enter a judgment for
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`that amount and costs against defendant who has been defaulted for not appearing and who is
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`neither a minor nor an incompetent person.” In all other cases, the party must apply to the court
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`for a default judgment. As the matter currently before the Court is not a claim for a sum certain,
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`Plaintiff is entitled to a judgment by default pursuant to Fed. R. Civ. P. 55(b)(2).
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`As set forth in the attached Declaration of Mark F. Warzecha, the Defendant was mailed a
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`copy of the Complaint and a Request to Waive Service on April 26, 2016. (Decl. of Warzecha, ¶
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`3). After the Amended Complaint was filed on June 20, 2016, a copy was timely served on the
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`Defendant. (Decl. of Warzecha, ¶ 4). On June 23, 2016, counsel for the Defendant accepted
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`service of the Amended Complaint, and returned the signed Waiver of Service of Summons which
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`was filed on the same day. (DKT. 14) (Decl. of Warzecha, ¶ 5).
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`Defendant, despite accepting service of the Amended Complaint and waiving service of
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`the summons, failed to file a responsive pleading as required under Fed. R. Civ. P. 12. (Decl. of
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`Warzecha ¶ 6). Accordingly, on July 28, 2016, the Clerk entered a Default against Defendant
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`pursuant to Fed. R. Civ. P. 55(a). (DKT. 16).
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`Case 6:16-cv-00680-RBD-GJK Document 18 Filed 08/10/16 Page 3 of 4 PageID 298
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`After receiving a Clerk’s Default, the Court may enter a Default Judgment if “’the well-
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`pleaded allegations in the complaint, which are taken as true due to the default, actually state a
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`substantive cause of action and that there is a substantive, sufficient basis in the pleadings for the
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`particular relief sought,’” Doe v. Tapia-Ortiz, Case No: 2:14-cv-206-FtM-38MRM, 2016 WL
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`3414862 at *2 (M.D. Fla. June 22, 2016); quoting Tyco Fire & Sec., LLC v. Alcocer, 218
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`Fed.Appx. 860, 863 (11th Cir. 2007); See also Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank,
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`515 F.2d 1200, 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff's well-
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`pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from
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`contesting on appeal the facts thus established .... A default judgment is unassailable on the merits
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`but only so far as it is supported by well-pleaded allegations, assumed to be true.” (citations
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`omitted)). The Complaint states a substantive cause of action, and pleads a sufficient basis for
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`the relief sought, including willfulness and irreparable harm for increased damages and injunctive
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`relief. Therefore, this Court may enter Final Default Judgment accordingly.
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`III.
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`Conclusion
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`Based on the foregoing, Plaintiff is entitled to a Final Default Judgment which finds that:
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`a)
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`Defendant is liable for infringement of Plaintiff’s rights to Patent No. 8,201,968 (the “’968
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`Patent”), Patent No. 8,672,518 (the “’518 Patent”), and Patent No. 8,967,844 (the “’844
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`Patent”);
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`b)
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`Plaintiff is entitled to entry of a permanent injunction prohibiting further infringement of
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`each of the ’968 Patent, the ‘518 Patent, and the ’844 Patent by Defendant, its agents,
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`employees, representatives, successors, and assigns, and those acting in privity or in
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`concert with Defendant, including all those who receive notice of this injunction or
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`alternatively a compulsory ongoing royalty owed to Plaintiff by Defendant;
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`Case 6:16-cv-00680-RBD-GJK Document 18 Filed 08/10/16 Page 4 of 4 PageID 299
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`c)
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`Plaintiff is entitled to an award of damages and pre-judgment and post-judgment interest
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`on the damages awarded, in an amount to be determined, including an award of
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`prejudgment interest, pursuant to 35 U.S.C. §284, from the date of each act of infringement
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`of the ’518 Patent, the ‘968 Patent and the ’844 Patent by Defendant to the date judgment
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`is entered, and a further award of post-judgment interest, pursuant to 28 U.S.C. §1961,
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`continuing until such judgment is paid, at the maximum rate allowed by law; and
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`d)
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`any other and further relief that this Court or a jury may deem just and proper.
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`Dated: August 10, 2016.
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`/s/Mark F. Warzecha
`Mark F. Warzecha
`Florida Bar No. 95779
`WIDERMAN MALEK PL
`1990 W. New Haven Ave., Ste. 201
`Melbourne, Florida 32904
`Tel. (321) 255-2332
`Fax (321) 255-2351
`MFW@USLegalTeam.com
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on August 10, 2016, I electronically filed the foregoing
`document with the Clerk of the Court using the CM/ECF filing system. I further certify that the
`foregoing document will be served on the Defendant via U.S. Mail or e-mail at:
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`Energy Efficient Lighting Co. Ltd.
`331 Amber Street, Suite B
`Markham, ON, Canada L3R357
`Francis.chan@ultrasave.com
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`/s/Mark F. Warzecha
`Mark F. Warzecha
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`Page 4 of 4