6:19-cv-02557-DCC Date Filed 01/09/20 Entry Number 27 Page 1 of 8
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`IN THE DISTRICT COURT OF THE UNITED STATES
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`FOR THE DISTRICT OF SOUTH CAROLINA
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`GREENVILLE DIVISION
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`C/A No. 6:19-cv-02557-DCC-KFM
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`REPORT OF MAGISTRATE JUDGE
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`Larry Golden,
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` Plaintiff,
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` vs.
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`Apple Inc., Samsung Electronics USA,
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`LG Electronics USA Inc., Qualcomm
`Inc., Motorola Solutions Inc., Panasonic )
`Corporation, AT&T Inc., Verizon
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`Corporate Services Group, Sprint
`)
`Corporation, T-Mobile USA Inc., Ford
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`Global Technologies LLC,
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`Fairway Ford Lincoln of Greenville,
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`General Motors Company, Kevin
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`Whitaker Chevrolet, FCA US LLC, Big )
`O Dodge Chrysler Jeep Ram,
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`))
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`))
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` Defendants.
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`The plaintiff, a non-prisoner proceeding pro se, brings this action asserting
`patent infringement against the defendants. Pursuant to the provisions of 28 U.S.C.
`§ 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to
`review all pretrial matters in this case and submit findings and recommendations to the
`district court.
`
`The plaintiff’s complaint was entered on the docket on September 11, 2019
`(doc. 1). By order filed October 1, 2019, the plaintiff was informed that his complaint was
`subject to summary dismissal because it failed to state a claim upon which relief may be
`granted, and that he could attempt to cure the defects identified in his complaint by filing
`an amended complaint within fourteen days (doc. 12). The plaintiff was informed that if he
`failed to file an amended complaint or otherwise cure the deficiencies outlined in the order,
`the undersigned would recommend that his case be dismissed (id. at 7). On October 15,
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`6:19-cv-02557-DCC Date Filed 01/09/20 Entry Number 27 Page 2 of 8
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`2019, the plaintiff’s amended complaint was entered on the docket (doc. 16). However, the
`undersigned recommends dismissal of the case because the amended complaint makes
`clear that the instant action is duplicative of pending litigation in the Court of Federal
`Claims.
`
`FACTS PRESENTED
`In the instant action, the plaintiff has sued various corporations and business
`entities that he asserts have infringed on his patents (docs. 16; 16-1). Specifically, the
`plaintiff asserts that the defendants have infringed on the following patents: 10,163,287
`(‘287 patent); 9,589,439 (‘439 patent); 9,096,189 (‘189 patent); RE43,990 (‘990 patent)1;
`RE43,891 (‘891 patent); and 7,385,497 (‘497 patent) (docs. 16; 16-1; 16-3; 16-4; 16-5; 16-
`6; 16-7; 16-8). These patents are entitled “multi sensor detection and lock disabling
`system” and “multi sensor detection, stall to stop and lock disabling system” (docs.16; 16-1;
`16-3; 16-4; 16-5; 16-6; 16-7; 16-8). The patents appear to involve technology that can be
`used to detect explosives/radiation and then disable vehicles or other apparatuses wherein
`the explosives/radiation are detected. The plaintiff’s complaint, consisting of 253 pages (in
`addition to the court’s standard form) alleges infringement of each patent by each
`defendant in formulaic recitations of the elements of patent infringement (docs. 16; 16-1).
`Attached to the complaint in addition to the amended complaint and patents are more than
`seven hundred pages of exhibits and claim charts (docs. 16-9; 16-10; 16-11; 16-12; 16-13;
`16-14; 16-15; 16-16; 16-17; 16-18; 16-19; 16-20; 16-21; 16-22; 16-23; 16-24; 16-25; 16-26;
`16-27). For relief, the plaintiff seeks a declaratory judgment that the defendants have
`infringed on his patents, a permanent injunction enjoining the infringing activity by the
`defendants, as well as money damages (doc. 16-1 at 252).
`
`1 The plaintiff’s authority to enforce the ‘990 patent appears to be at issue already
`in light of the petition pending before the United States Patent and Trademark Office. In
`re Patent Number RE 43,990, https://portal.uspto.gov/pair/PublicPair# (choose patent
`number, enter RE43990, and then click Image File Wrapper) (last visited January 8, 2020).
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`6:19-cv-02557-DCC Date Filed 01/09/20 Entry Number 27 Page 3 of 8
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`STANDARD OF REVIEW
`As a pro se litigant, the plaintiff’s pleadings are accorded liberal construction
`and held to a less stringent standard than formal pleadings drafted by attorneys. See
`Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal
`construction does not mean that the Court can ignore a clear failure in the pleading to
`allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep’t
`of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
`“The Federal Rules of Civil Procedure recognize that courts must have the
`authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.
`1989) (citing Fed. R. Civ. P. 41(b)). Federal courts are courts of limited jurisdiction,
`“constrained to exercise only the authority conferred by Article III of the Constitution and
`affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352
`(4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no
`presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394,
`399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)).
`Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its
`jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking,
`147 F.3d at 352; see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that
`it lacks subject-matter jurisdiction, the court must dismiss the action.”).
`DISCUSSION
`As an initial matter, the court takes judicial notice of the plaintiff’s currently
`pending patent litigation in the Court of Federal Claims, the Court of Appeals for the Federal
`Circuit, and before the United States Patent and Trademark Office.2 See Golden v. United
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`2 Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may
`properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887
`F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial
`notice . . . is in noticing the content of court records.’”).
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`6:19-cv-02557-DCC Date Filed 01/09/20 Entry Number 27 Page 4 of 8
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`States, C/A No. 1:19-cv-00104-EGB (Fed. Cl.), appeal pending C/A No. 19-2134 (Fed. Cir.)
`(“Case Number 1”); Golden v. United States, C/A No 1:13-cv-00307-SGB, stayed pending
`review, doc. 186
`(Fed. Cl.);
`re Patent Number RE 43,990,
`In
`patent
`https://portal.uspto.gov/pair/PublicPair# (choose patent number, enter RE43990, and then
`click Image File Wrapper) (last visited September 27, 2019). For the reasons that follow,
`as presented, the instant matter is subject to summary dismissal because as evidenced in
`the plaintiff’s amended complaint (and exhibits), the instant action is duplicative of the
`action pending in the Court of Federal Claims.
`Efficient judicial administration generally requires the federal courts to avoid
`duplicative federal litigation. See Colo. River Water Conservation Dist. v. United States,
`424 U.S. 800, 817 (1976). Generally, a case pending in federal court “may be dismissed
`for reasons of wise judicial administration whenever it is duplicative of a parallel action
`already pending in another federal court.” Nexsen Pruet, LLC v. Westport Ins. Corp., C/A
`No. 3:10-cv-00895-JFA, 2010 WL 3169378, at *2 (D.S.C. Aug. 5, 2010) (internal quotation
`marks omitted) (quoting Motley Rice, LLC v. Baldwin & Baldwin, LLP, 518 F. Supp. 2d 688,
`697 (D.S.C. 2007)). Suits are considered parallel if “substantially the same parties litigate
`substantially the same issues in different forums.” New Beckley Mining Corp. v. Int’l Union,
`United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991) (citing LaDuke v.
`Burlington N. R.R., 879 F.2d 1556, 1559 (7th Cir. 1989)). In Case Number 1, extensive
`discovery and briefing on dismissal orders has occurred. See Golden v. United States, C/A
`No 1:13-cv-00307-SGB. Additionally, although currently stayed while the plaintiff re-opens
`the ‘990 patent, it appears that the claims construction process has begun. Id. at doc. 186.
`As outlined above, here, the defendants’ alleged patent infringement is substantially
`identical to that asserted in Case Number 1, with the exception that the instant matter
`involves third parties as infringers instead of the government. Indeed, the claims
`construction charts provided by the plaintiff appear to be identical to those presented in
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`6:19-cv-02557-DCC Date Filed 01/09/20 Entry Number 27 Page 5 of 8
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`Case Number 1. Compare Golden v. United States, C/A No 1:13-cv-00307-SGB at doc.
`121 with docs. 16-14; 16-15; 16-16; 16-17; 16-18; 16-19; 16-20; 16-21; 16-22; 16-23; 16-
`24; 16-25; 16-26; 16-27). Indeed, although the instant matter involves different defendants
`than Case Number 1, the plaintiff’s filings make clear that they are third party actors for the
`government’s infringing actions, which is the basis for Case Number 1. For example,
`correspondence from the plaintiff (included in an order entered in Case Number 1) indicates
`that Case Number 1 and the instant matter involve the same infringing actions, indicating
`that the plaintiff would file a separate action in order to
`force Apple, Samsung, and LG to decide between one or two
`choices: (1) In an effort to avoid any responsibility for
`infringement or liability of paying hundreds of billions of dollars
`in damages, the companies cho[o]se to throw the Government
`under the bus by presenting evidence that they were under
`contract to develop and manufacture devices that infringes my
`communication/monitoring device. If they cho[o]se this option
`it makes them a witness for me in my current case (Larry
`Golden v. The United States; Case # 13–307 C). (2) Deny the
`allegations of infringement. In this case I will present evidence
`to support the fact that the companies were under contract with
`the Government to develop and manufacture devices that
`infringe[ ] my communication / monitoring device, but that the
`companies decided to continue to develop and manufacture my
`communication / monitoring device beyond the specifications
`agreed upon with the Government, even after I notified the
`companies in 2010 to stop their manufacturing. If they cho[o]se
`this option it opens the companies up to willful infringement and
`the possibility of a
`temporary
`injunction
`to stop
`the
`manufacturing and development of my communication /
`monitoring device. If you were Apple, Samsung, and LG which
`option would you cho[o]se?
`Golden v. United States, 137 Fed. Cl. 155, 168 (alterations in original). As such, the instant
`action is duplicative of Case Number 1: the plaintiff asserts that the defendants are
`infringing on the same patents in the same manner as asserted in Case Number 1. As
`such, the interests of justice weigh heavily in favor of dismissing this action in light of Case
`Number 1, which remains pending in the Court of Federal Claims (although it is currently
`stayed pending litigation before the patent board concerning the ‘990 patent). See Golden
`v. United States, C/A No 1:13-cv-00307-SGB (Fed. Cl.); see also Byerson v. Equifax Info.
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`Servs., LLC, 467 F. Supp. 2d 627, 635 (E.D. Va. 2006) (noting that “[m]ost prominent
`among the elements of systemic integrity are judicial economy and the avoidance of
`inconsistent judgments.”). As such, the undersigned finds that dismissal of the instant
`action is necessary to “prevent the waste of time, energy and money and to protect litigants,
`witnesses and the public against unnecessary inconvenience and expense.” Van Dusen
`v. Barrack, 376 U.S. 612, 615 (1964) (internal quotation marks and citation omitted).
`RECOMMENDATION
`By order issued October 1, 2019, the undersigned gave the plaintiff an
`opportunity to correct the defects identified in his complaint and further warned the plaintiff
`that if he failed to file an amended complaint or failed to cure the identified deficiencies, the
`undersigned would recommend to the district court that the action be dismissed with
`prejudice and without leave for further amendment. Upon review of the amended complaint
`filed by the plaintiff, it is clear that the instant matter is duplicative of Case Number 1.
`Therefore, the undersigned recommends that the district court dismiss this action without
`prejudice and without issuance and service of process. However, the undersigned also
`recommends that the plaintiff not be provided with additional opportunities to amend his
`complaint in the instant matter—as any amendment would be futile in light of the pending
`duplicative litigation. See Workman v. Morrison Healthcare, 724 F. App’x 280, 281 (4th Cir.
`2018) (in a case where the district court had already afforded the plaintiff an opportunity to
`amend, the district court was directed on remand to “in its discretion, either afford [the
`plaintiff] another opportunity to file an amended complaint or dismiss the complaint with
`prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode
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`6:19-cv-02557-DCC Date Filed 01/09/20 Entry Number 27 Page 7 of 8
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`v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)). The plaintiff’s
`attention is directed to the important notice on the next page.
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`IT IS SO RECOMMENDED.
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`s/Kevin F. McDonald
`United States Magistrate Judge
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`January 9, 2020
`Greenville, South Carolina
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`6:19-cv-02557-DCC Date Filed 01/09/20 Entry Number 27 Page 8 of 8
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`Notice of Right to File Objections to Report and Recommendation
`The parties are advised that they may file specific written objections to this
`Report and Recommendation with the District Judge. Objections must specifically
`identify the portions of the Report and Recommendation to which objections are made
`and the basis for such objections. “[I]n the absence of a timely filed objection, a district
`court need not conduct a de novo review, but instead must ‘only satisfy itself that there
`is no clear error on the face of the record in order to accept the recommendation.’”
`Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R.
`Civ. P. 72 advisory committee’s note).
`Specific written objections must be filed within fourteen (14) days of the
`date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
`P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil
`Procedure 5 may be accomplished by mailing objections to:
`Robin L. Blume, Clerk
`United States District Court
`300 East Washington Street, Room 239
`Greenville, South Carolina 29601
`Failure to timely file specific written objections to this Report and
`Recommendation will result in waiver of the right to appeal from a judgment of the
`District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
`Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States
`v. Schronce, 727 F.2d 91 (4th Cir. 1984).
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