United States District Court, E.D. Wisconsin
METALCRAFT OF MAYVILLE, INC. d/b/a Scag Power Equipment, Plaintiff,
THE TORO COMPANY and EXMARK MANUFACTURING CO., INC., Defendants.
DECISION AND ORDER
ADELMAN District Judge
of Mayville, Inc. (d/b/a Scag Power Equipment)
(“Scag”), brings this action against the Toro
Company and Exmark Manufacturing Co., Inc., alleging
infringement of its patent on an operator suspension system
for commercial riding lawnmowers. On August 1, 2016, District
Judge Pamela Pepper signed an order on behalf of Senior
District Judge Rudolph T. Randa granting Scag's motion
for a preliminary injunction precluding defendants
“from making, using, selling, and offering to sell
lawnmowers equipped with platform suspension systems that
infringe Scag's patent.” ECF No. 30, at 1. A week
later, this case was reassigned to me.
then, various portions of this dispute have been proceeding
in three separate forums. First, defendants appealed the
grant of the preliminary injunction to the Federal Circuit
Court of Appeals, which recently affirmed that order. ECF No.
79. Second, defendants requested ex parte
reexamination of Scag's patent claims by the U.S. Patent
and Trademark Office (USPTO). ECF No. 66-1. The USPTO granted
defendants' request for reexamination of certain claims
in the relevant patent, citing “[a] substantial new
question of patentability” based on prior art that was
not cited, discussed, or applied appropriately during the
original prosecution of Scag's patent. See ECF
defendants moved in this court, relying on the USPTO's
decision to reexamine Scag's patent claims, for an order
dissolving the preliminary injunction. See ECF No.
65. Recognizing that I lacked jurisdiction to issue such an
order while their appeal to the Federal Circuit was pending,
defendants moved, in the alternative, for an indicative
ruling as to whether I would dissolve the preliminary
injunction if the Federal Circuit were to remand for that
purpose. Id. In light of the Federal Circuit's
recent opinion and judgment affirming the grant of the
preliminary injunction, defendants have withdrawn their
request for an indicative ruling. ECF No. 80, at 2. Once I
receive the appellate mandate, see Fed. R. App. P.
41, I will consider defendants' still-pending motion to
dissolve the preliminary injunction. In the meantime, I will
address the parties' other pending motions, which are
associated with that motion.
move for oral argument on their motion to dissolve the
preliminary injunction. This court hears oral argument on
motions at its discretion. Civil L. R. 7(e) (E.D. Wis.);
see also Fed. R. Civ. P. 78. In short, defendants
request oral argument because they have to ramp up production
of their enjoined mowers soon or start firing or furloughing
some of their manufacturing employees. They also argue that
Scag has been deliberately delaying the USPTO's
reexamination proceedings, though they do not argue that Scag
has done anything in violation of USPTO procedure. None of
this shows that oral argument would be helpful in resolving
defendants' pending motion to dissolve the preliminary
injunction. It seems as though defendants are merely trying
to hasten a decision on that motion. I will not schedule oral
argument for that purpose. Therefore, I will deny this
defendants move to seal portions of both their motion for
oral argument and the declaration filed with that motion.
This court considers any document filed to be public unless
it is accompanied by a motion to seal supported by
“sufficient facts demonstrating good cause for
withholding the document or material from the public
record.” General L. R. 79(d)(1)-(4) (E.D. Wis.).
“The standard for showing good cause is quite high . .
. .” Id. committee comment. “In civil
litigation only trade secrets, information covered by a
recognized privilege (such as the attorney-client privilege),
and information required by statute to be maintained in
confidence (such as the name of a minor victim of a sexual
assault), is entitled to be kept secret . . . .”
Baxter Int'l Inc. v. Abbott Labs., 297 F.3d 544,
546 (7th Cir. 2002). Given this clear standard, I will
deny outright any motion [to seal] . . . that does not
analyze in detail, document by document, the propriety of
secrecy, providing reasons and legal citations. Motions that
represent serious efforts to apply the governing rules will
be entertained favorably, and counsel will be offered the
opportunity to repair shortcomings. Motions that simply
assert a conclusion without the required reasoning, however,
have no prospect of success.
Id. at 548.
have not shown good cause to seal. They argue only that the
motion and declaration “contain highly sensitive and
confidential business information” that “is
readily recognizable as of a nature that should be
restricted.” ECF No. 73, at 1. They do not
“analyze the applicable legal criteria or contend that
any document contains a protectable trade secret or otherwise
legitimately may be kept from public inspection.”
Baxter, 297 F.3d at 546. This motion is “so
perfunctory” that it can be “summarily
rejected.” Id. I will deny this motion.
Scag moves to strike defendants' motion for oral argument
and the declaration filed with that motion. According to
Scag, rather than arguing the need for oral argument,
defendants used their motion and declaration to impermissibly
argue about the harm caused by the preliminary injunction and
to claim that Scag is being dilatory in proceedings before
the USPTO. I agree with Scag up to this point. However, where
I see defendants' arguments as merely insufficient to
support their motion, Scag sees them as “highly
prejudicial, ” such that they should be struck from the
record. ECF No. 77, at 2. Scag provides no applicable legal
criteria, nor does it cite any legal authority whatsoever in
support of its motion. As with defendants' motion to
seal, this motion is so perfunctory that I will deny it
IT IS ORDERED that defendants' motion for oral argument
(ECF Nos. 74 & 75) is DENIED.
FURTHER ORDERED that defendants' motion to seal (ECF No.
73) is DENIED. The Clerk of Court shall make the ...