Case 1:19-cv-01334-CJB Document 590 Filed 10/19/23 Page 1 of 7 PageID #: 14790
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Civil Action No. 19-1334-CJB
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`MIDWEST ENERGY EMISSIONS
`CORP. and MES INC.,
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`Plaintiffs,
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`v.
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`ARTHUR J. GALLAGHER & CO., et al.,
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`Defendants.
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`James M. Lennon, DEVLIN LAW FIRM, Wilmington, DE; Bradley W. Caldwell, Jason D.
`Cassady, John Austin Curry, Justin T. Nemunaitis, Daniel R. Pearson, Adrienne R. Dellinger,
`CALDWELL CASSADY CURRY P.C., Dallas, TX; Attorneys for Plaintiffs.
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`Kenneth L. Dorsney and Cortlan S. Hitch, MORRIS JAMES LLP, Wilmington, DE; Jeff Dyess,
`Paul Sykes and Benn Wilson, BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham,
`AL; Jessica Zurlo, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C.,
`Attorneys for Defendants CERT Operations IV LLC, CERT Operations V LLC, CERT
`Operations RCB LLC, Senescence Energy Products, LLC, Rutledge Products, LLC, Springhill
`Resources LLC, Buffington Partners LLC, Bascobert (A) Holdings LLC, Larkwood Energy
`LLC, Cottbus Associates LLC, CERT Operations II LLC, and Marquis Industrial Company,
`LLC.
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`Jack B. Blumenfeld, Brian P. Egan and Anthony D. Raucci, MORRIS, NICHOLS, ARSHT &
`TUNNELL LLP, Wilmington, DE; Richard W. Mark, Joseph Evall and Paul J. Kremer,
`GIBSON, DUNN & CRUTCHER LLP, New York, NY; David Glandorf, GIBSON, DUNN &
`CRUTCHER LLP, Denver, CO; Attorneys for Defendants AJG Iowa Refined Coal LLC, Arbor
`Fuels Company, LLC, Belle River Fuels Company, LLC, Canadys Refined Coal, LLC, Chouteau
`Fuels Company, LLC, Coronado Refined Coal, LLC, DTE Energy Resources, LLC, Erie Fuels
`Company, LLC, George Neal North Refined Coal, LLC, George Neal Refined Coal, LLC,
`Hastings Refined Coal, LLC, Huron Fuels Company, LLC, Jasper Fuels Company, LLC,
`Jefferies Refined Coal, LLC, Joppa Refined Coal LLC, Louisa Refined Coal, LLC, Newton
`Refined Coal, LLC, Portage Fuels Company, LLC, Superior Fuels Company 1, LLC, Walter
`Scott Refined Coal LLC, and Williams Refined Coal, LLC.
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`Nicole A. DiSalvo, Jessica R. Kunz and Daniel S. Atlas, SKADDEN, ARPS, SLATE,
`MEAGHER & FLOM LLP, Wilmington, DE; Douglas R. Nemec and Leslie A. Demers,
`SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, New York, NY; Attorneys for
`Defendant Alistar Enterprises, LLC.
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`MEMORANDUM OPINION
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`Case 1:19-cv-01334-CJB Document 590 Filed 10/19/23 Page 2 of 7 PageID #: 14791
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`October 19, 2023
`Wilmington, Delaware
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`BURKE, United States Magistrate Judge
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`This is a patent action filed by Plaintiffs Midwest Energy Emissions Corp. (“Midwest
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`Energy”) and MES Inc. (“MES” and collectively with Midwest Energy, “Plaintiffs” or “ME2C”)
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`against 34 Defendants, in which Plaintiffs assert five patents-in-suit. The Court has set out a
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`listing of all of the parties and asserted patents in its recent October 16, 2023 Memorandum
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`Opinion (“October 16, 2023 MO”), (D.I. 586 at 2); it incorporates that discussion by reference
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`here. Presently pending before the Court is Defendants’ motion for summary judgment No. 5:
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`no knowledge of patents or infringement (the “Motion”). (D.I. 567). ME2C opposes the
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`Motion. For the reasons set forth below, the Motion is DENIED.1
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`I.
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`BACKGROUND
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`ME2C commenced this action on July 17, 2019. (D.I. 1) Defendants filed the instant
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`Motion on March 23, 2023. (D.I. 527; see also D.I. 566) The Motion was fully briefed as of
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`April 18, 2023, (D.I. 555), and the Court held oral argument on the Motion (as well as other
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`summary judgment motions) on May 17, 2023, (D.I. 581 (“Tr.”)). A trial is set to begin on
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`November 13, 2023. (D.I. 507)
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`The Court here writes primarily for the parties, and so any facts relevant to this
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`Memorandum Opinion will be discussed in Section III below.
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`II.
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`STANDARD OF REVIEW
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`1
`The parties have jointly consented to the Court’s jurisdiction to conduct all
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`proceedings in this case, including trial, the entry of final judgment and all post-trial
`proceedings. (D.I. 398)
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`2
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`Case 1:19-cv-01334-CJB Document 590 Filed 10/19/23 Page 3 of 7 PageID #: 14792
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`The Court incorporates by reference the standard of review for summary judgment
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`motions, which it set out in the October 16, 2023 MO, (D.I. 586 at 3-4), and the summary
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`judgment-related legal standards specifically relating to claims of patent infringement, which it
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`set out in an October 17, 2023 Memorandum Opinion, (D.I. 588 at 3).
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`III. DISCUSSION
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`In this case, ME2C asserts that Defendants are liable for induced infringement and
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`contributory infringement of certain method claims of the asserted patents by manufacturing and
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`selling refined coal to non-party power plants. (D.I. 406 at ¶¶ 67, 208, 217; D.I. 546, ex. A at
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`123, at ¶ 99) Both the induced and contributory infringement claims require ME2C to prove,
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`inter alia, that Defendants had knowledge of the asserted patents (or at least were willfully blind
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`to the existence of the asserted patents).2 Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754,
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`765-66, 769 (2011). A showing of willful blindness requires that “(1) [t]he defendant must
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`subjectively believe that there is a high probability that a fact exists and (2) the defendant must
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`take deliberate actions to avoid learning of that fact.” Id. Plaintiffs further assert that
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`Defendants’ infringement has been willful, (D.I. 406 at ¶¶ 218, 221), which also requires a
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`showing of knowledge of the patents.3
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`2
`Specifically, “[i]nduced infringement under 35 U.S.C. § 271(b) requires proof of
`underlying direct infringement, as well as proof that (1) the defendant knew of the patent, (2) the
`defendant knew or should have known that the induced acts constitute patent infringement, and
`(3) the defendant possessed specific intent to encourage another’s infringement.” Bio-Rad
`Lab’ys, Inc. v. Int’l Trade Comm’n, 998 F.3d 1320, 1335 (Fed. Cir. 2021) (internal quotation
`marks and citation omitted). “Contributory infringement under 35 U.S.C. § 271(c) requires
`proof that (1) the defendant had knowledge of the patent in suit, (2) the defendant had knowledge
`of patent infringement, and (3) the accused product is not a staple article or commodity of
`commerce suitable for a substantial noninfringing use.” Id.
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`A determination of willful infringement requires a finding of “deliberate or
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`intentional” infringement, and thus the plaintiff must show that “the accused infringer knew of
`3
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` 3
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`Case 1:19-cv-01334-CJB Document 590 Filed 10/19/23 Page 4 of 7 PageID #: 14793
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`With the Motion, Defendants move for summary judgment of no induced infringement,
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`contributory infringement, or willful infringement; in support, they assert three grounds. (D.I.
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`528 at 19-21) First, Defendants argue that “[t]here is no evidence that any Defendant had
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`knowledge of the existence of [any asserted] patent prior to the date on which that Defendant
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`was provided with a complaint attaching the patents-in-suit” (such that ME2C has no claims
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`against Defendants for any “pre-complaint” period). (Id. at 20 (internal quotation marks
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`omitted)) Second, they assert that Plaintiffs cannot rely on receipt of any complaint in this case
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`to prove the element of knowledge of the patents (such that ME2C has no claims against
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`Defendants for any “post-complaint” period). (Id.) And third, Defendants contend that
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`Plaintiffs’ theory that Defendants were “willfully blind” to the asserted patents (prior to learning
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`of them via a complaint) fails because “[t]here is no evidence that any Defendant held any
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`relevant subjective beliefs regarding ME2Cpatents, or took any deliberate actions to avoid
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`learning of the patents or of potential infringement.” (Id. at 20-21 (emphasis in original))
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`Summary judgment is not warranted on any of these grounds. Below, the Court will
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`briefly explain why.
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`To begin, the Court addresses Defendants’ first and third arguments. As to these
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`arguments, all Defendants say in their opening brief is that there is “no evidence” regarding pre-
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`complaint knowledge of the asserted patents and “no evidence” of willful blindness as to the
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`asserted patents. (Id.) That is it. In other words, Defendants provide no elaboration or analysis
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`the patent-in-suit, and knowingly or intentionally infringed the patent after acquiring that
`knowledge.” Purewick Corp. v. Sage Prods., LLC, — F. Supp. 3d — , 2023 WL 2734418, at *9
`(D. Del. Mar. 31, 2023) (internal quotation marks and citations omitted); see also Vȁlinge
`Innovation AB v. Halstead New Eng. Corp., Civil Action No. 16-1082-LPS-CJB, 2018 WL
`2411218, at *13 (D. Del. May 29, 2018), report and recommendation adopted, 2018 WL
`11013901 (D. Del. Nov. 6, 2018).
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`4
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`Case 1:19-cv-01334-CJB Document 590 Filed 10/19/23 Page 5 of 7 PageID #: 14794
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`about why the evidentiary record relating to this subject matter is wanting. In Celotex Corp. v.
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`Catrett, 477 U.S. 317 (1986), Justice Brennan explained that if the burden of persuasion at trial
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`would be on the non-moving party (as it would be here as to Plaintiffs’ infringement claims), and
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`if the party moving for summary judgment is asserting that the “nonmoving party’s evidence is
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`insufficient to establish an essential element of the nonmoving party’s claim[ as Defendants are
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`asserting here, then]. . . . a conclusory assertion that the nonmoving party has no evidence is
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`insufficient.” Celotex, 477 U.S. at 331-32 (Brennan, J., dissenting) (noting that a holding
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`otherwise would “permit summary judgment procedure to be converted into a tool for
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`harassment”). Instead, “a party who moves for summary judgment on the ground that the
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`nonmoving party has no evidence must affirmatively show the absence of evidence in the record”
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`by, for example, “establish[ing] the inadequacy of documentary evidence.” Id. at 332 (emphasis
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`added); see also, e.g., In re Bressman, 327 F.3d 229, 237 & n.3 (3d Cir. 2003); Wisniewski v.
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`Johns–Manville Corp., 812 F.2d 81, 84 n.2 (3d Cir. 1987); Rosario v. Lynch, No. 2.13-cv-01945,
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`2017 WL 4098709, at *3 (E.D. Pa. Sept. 15, 2017); Finley v. Pa. Dep’t of Corr., No. 3:12-CV-
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`2194, 2015 WL 1967262, at *8-9 (M.D. Pa. Apr. 30, 2015) (citing cases).
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`Thus, Defendants’ conclusory assertions of “no evidence” cannot win the day. Indeed,
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`there is evidence in the record that at least purportedly relates to Defendants’ pre-complaint
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`knowledge. Plaintiffs point to some of this evidence in their answering brief—they highlight
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`deposition testimony, e-mails, and information found in a section of their expert’s report (in
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`which their expert, Mr. Philip O’Keefe, reviews various pieces of evidence that he has asserted
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`are relevant to this issue). (D.I. 545 at 13-14 (citing D.I. 546, ex. A at 88, at ¶ 116; id., ex. A at
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`91-93, at ¶¶ 119-22; D.I. 548, ex. 2 at 10-11, 87; id., ex. 4 at 41-42; id., ex. 5 at 172; id., ex. 24 at
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`29, 103-04; id., ex. 25 at 210; id., ex. 26 at CERT-0012609; id., ex. 27 at Belle_00018066; id.,
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`5
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`Case 1:19-cv-01334-CJB Document 590 Filed 10/19/23 Page 6 of 7 PageID #: 14795
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`ex. 28 at SB_0026045; id., ex. 32 at ArborFuels_0081059))4 Defendants are undoubtedly well
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`familiar with at least much of this evidence, in that: (1) they moved to strike the relevant
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`portions of Mr. O’Keefe’s report (the “motion to strike”) in November 2022, (see D.I. 494 at 1-
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`2); and (2) the e-mails at issue come from Defendants’ own documents. With their motion to
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`strike, Defendants highlighted the evidence at issue in Mr. O’Keefe’s report regarding pre-
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`complaint knowledge, and they argued that none of this evidence had actually been disclosed
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`during fact discovery. (See id.) The Court denied the motion to strike and permitted Defendants
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`to take additional tailored discovery “relating to the previously undisclosed facts regarding pre-
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`suit knowledge[.]” (D.I. 506 at 3-5) Yet Defendants ignored this evidence in their opening brief.
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`They shouldn’t have. It was Defendants’ burden here to “affirmatively show” why this evidence
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`was inadequate to establish pre-suit knowledge, and a conclusory statement that there is “no
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`evidence” plainly fails in that regard.5 (Tr. at 74, 83-88, 97 (Plaintiffs’ counsel noting that
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`Defendants’ opening brief did not make specific arguments about why the evidence in the record
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`regarding pre-complaint knowledge was insufficient)); Celotex, 477 U.S. at 332; Finley, 2015
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`WL 1967262, at *9-10 (concluding that the defendants failed to fully discharge their initial
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`4
`The Court notes that Defendants have moved to exclude this section of Mr.
`O’Keefe’s report. (D.I. 528 at 43)
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` 5
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`Had Defendants sufficiently addressed the evidence in the record in their opening
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`brief, there surely would have been a number of tough calls to make about, for example, whether
`there are sufficient links between what certain individuals may have known, and whether such
`knowledge could be fairly imputed to each Defendant. (See, e.g., D.I. 555 at 7 n.6 (Defendants
`raising this issue in their reply brief); Tr. at 74-75 (Plaintiffs’ counsel indicating that they plan to
`make this link at trial, and stating that they did not do so as well as they might have in response
`to the Motion because the issue was not squarely raised in Defendants’ opening brief)) But the
`point is that Defendants had the obligation to affirmatively raise these issues in their opening
`brief in a fulsome way—in order to put Plaintiffs on notice of Defendants’ arguments and allow
`Plaintiffs to fairly respond. Defendants’ conclusory “no evidence” assertion did not provide fair
`notice in this regard.
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`6
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`Case 1:19-cv-01334-CJB Document 590 Filed 10/19/23 Page 7 of 7 PageID #: 14796
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`burden of production with respect to their summary judgment motion, where they “failed to offer
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`more than a conclusory assertion that Plaintiff, the nonmoving party who will bear the burden of
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`persuasion at trial, has no evidence to support his claim of a disability within the meaning of
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`Section 504 [and n]or have Defendants affirmatively showed the absence of evidence in the
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`record, or an inadequacy of documentary evidence, with respect to Plaintiff’s disability”).
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`With respect to Defendants’ second argument (i.e., that a complaint cannot be relied upon
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`to prove post-complaint knowledge of the asserted patents), the Court has already decided this
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`issue. In doing so, it has determined that a complaint can supply knowledge of a patent for
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`certain types of post-complaint claims. See, e.g., Midwest Energy Emissions Corp. v. Arthur J.
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`Gallagher & Co., Civil Action No. 19-1334-RGA-CJB, 2021 WL 2036671, at *20 (D. Del. May
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`20, 2021), report and recommendation adopted in relevant part, 2021 WL 4350591 (D. Del.
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`Sept. 24, 2021); see also, e.g., ICON Health & Fitness, Inc. v. Tonal Sys., Inc., Civil Action No.
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`21-652-LPS-CJB, 2022 WL 611249, at *3 & n.5 (D. Del. Feb. 7, 2022). The Court declines
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`Defendants’ invitation to revisit its decision in this regard. (Tr. at 62-63)
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`IV. CONCLUSION
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`For the foregoing reasons, Defendants’ Motion is DENIED. An appropriate Order will
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`issue.
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`7
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