`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
`
`
`LOGANTREE LP,
`
` Plaintiff,
`vs.
`
`GARMIN INTERNATIONAL, INC.,
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`Case No. 6:17-cv-01217
`
`
`
`
`
`
`
`
`MOTION TO STRIKE LOGANTREE’S NEW DAMAGES THEORY
`
`On the eve of trial and after the Court’s pretrial conference last Thursday, LoganTree just
`
`made Garmin aware of its intent to present an entirely new damages theory. LoganTree apparently
`
`intends to present a new damages theory and calculations based on LoganTree’s settlement with
`
`Huawei signed April 6, 2022. Over the last six months, LoganTree:
`
`• Never moved to amend the Pre-trial Order to add a new damage theory or factual basis;
`
`• Never amended its expert report to add a new damages theory or factual basis;
`
`• Never provided Garmin with notice that it intended to raise a new damages theory or
`provide any additional factual basis for its current damages theories; and
`
`
`
`
`
`
`
`• Never supplemented its response to Garmin’s interrogatory relating to LoganTree’s
`theory of damages.
`
`
`LoganTree’s last-minute machinations are violative of the Court’s rules and prejudicial to Garmin
`
`and should be stricken by this Court. Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002)
`
`(reversing liability verdict against defendant for a cause of action not preserved in the pretrial order
`
`because “‘the pretrial order is the controlling document for trial’ . . . [a]s such, claims issues,
`
`defenses, or theories of damages not included in the pretrial order are waived[.]”); Sunderman v.
`
`Westar Energy, Inc., 520 F. Supp. 2d 1269, 1278 (D. Kan. 2007) (holding that plaintiff’s claim not
`
`
`
`1
`
`
`
`Case 6:17-cv-01217-EFM Document 277 Filed 10/23/22 Page 2 of 3
`
`included in the pretrial order was waived and would not be considered); Harte v. Burns, 2020 WL
`
`777207, at *4 (D. Kan. Feb. 18, 2020) (denying a motion to amend pretrial order and summarizing
`
`cases denying untimely amendment to pretrial order and motions made on eve of trial); Rule 26(e);
`
`Rule 37(c)(1).
`
`Notably, in the Pretrial Order, LoganTree contended Dr. Volkov calculated damages
`
`“based on an average product/device licensor-for-royalty-rate calculation of a percentage of net
`
`sales on average for products and devices” and that “these damages [were] based on an analysis of
`
`9 comparable patent licenses for technology such as code; software; modules/software; products;
`
`and devices/software/methods.” Id. The Huawei license was not part of Dr. Volkov’s report, which
`
`is LoganTree’s sole theory of damages. This means Volkov’s damages theory reflected in the
`
`Pretrial Order can be the only damages theory for trial. Wilson v. Muckala, 303 F.3d at 1215.
`
`LoganTree itself has told the Court it “has no problem” adhering to the theories it disclosed
`
`in the Pretrial Order. ECF No. 262, at 1. And LoganTree should be bound by those rules and should
`
`be prohibited from offering any last-minute damages theory or factual basis for damages.
`
`LoganTree had six months to reconsider its damages case in light of its settlement with Huawei.
`
`If LoganTree desired to advance a new damages theory at trial, LoganTree should have moved the
`
`Court to supplement Volkov’s expert report and to amend the Pretrial Order. It did not.
`
`Accordingly, LoganTree should be precluded from doing so now.
`
`
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`
`Case 6:17-cv-01217-EFM Document 277 Filed 10/23/22 Page 3 of 3
`
`Dated: October 23, 2022
`
`
`
`
`
`
`
`Respectfully submitted,
`
`ERISE IP, P.A.
`
`/s/ Adam P. Seitz
`
`Adam P. Seitz, KS Bar #21059
`Megan J. Redmond, KS Bar #21999
`Carrie A. Bader, KS Bar #24436
`Clifford T. Brazen, KS Bar #27408
`ERISE IP, P.A.
`7015 College Blvd., Suite 700
`Overland Park, Kansas 66211
`Telephone: (913) 777-5600
`Facsimile: (913) 777-5601
`adam.seitz@eriseip.com
`megan.redmond@eriseip.com
`carrie.bader@eriseip.com
`cliff.brazen@eriseip.com
`
`Attorneys for Defendant Garmin
`International, Inc.
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that, on October 23, 2022, the foregoing document filed with the Clerk of
`
`the Court using CM/ECF and that all counsel of record who are deemed to have consented to
`
`electronic service are being served with a copy of this document via the Court’s CM/ECF system
`
`accordingly.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
