Case 5:04-cv-00336-JBC Document 60-2 Filed 05/08/2006
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
PROMOTIONAL CONTAINERS, INC.
PLAINTIFF
v.
AZTEC CONCRETE ACCESSORIES, INC.
DEFENDANT
and
DAYTON SUPERIOR CORPORATION
DEFENDANT
CIVIL ACTION NO. 04-336-JBC
FIRST AMENDED COMPLAINT
Plaintiff, Promotional Containers, Inc. (‘Promotional Containers’), for its First Amended Complaint against Aztec Concrete Accessories, Inc. (‘Aztec’) and Dayton Superior Corporation (‘Dayton’), states as follows:
1. This is an action for an accounting, patent infringement, unjust enrichment, and punitive damages.
2. Plaintiff, Promotional Containers, is a Nevada corporation with principal offices at Lexington, Kentucky.
3. Defendant, Aztec, is a corporation of the state of California with principal offices at Fontana, California and doing business within this district.
4. Defendant, Dayton, is an Ohio corporation with principal offices in Dayton, Ohio, doing business within this district. Aztec is a wholly owned subsidiary of Dayton. Upon information and belief, Dayton acquired Aztec in 1999.
5. This Court has jurisdiction over the parties and over the subject matter of this action under the patent laws of the United States, pursuant to the provisions of section 1338(a) of Title 9, United States Code. Venue properly lies within this judicial district, pursuant to the provisions of sections 1391(b) and (c), and/or 1400(b) of Title 28, United States Code.
6. United States Letters Patent No. 4,942,714 (hereinafter “the ‘714 patent’ for an invention entitled “REBAR AND BEAM BOLSTER, SLAB AND BEAM BOLSTER UPPER” was duly and legally issued on July 24, 1990. A copy of the ‘714 patent is attached as Exhibit A.
7. Plaintiff is the present assignee of the ‘714 patent and has the exclusive right to sue for infringement of these patents.
8. Aztec has, prior to the filing of this complaint, infringed the ‘714 patent by making, using, and selling bolsters embodying the patented invention within the United States. Such acts of infringement will continue unless enjoined by this Court.
9. Dayton has, prior to the filing of this complaint, infringed the ‘714 patent by using, and selling bolsters embodying the patented invention within the United States. Such acts of infringement will continue unless enjoined by this Court.
10. These acts of infringement include acts that occurred after Aztec became a wholly-owned subsidiary of Dayton.
11. Aztec and Dayton’s infringement of the patent-in-suit has been and continues to be willful and wanton.
12. Dayton aided, abetted, and actively induced Aztec’s infringement of the patent, and otherwise facilitated and made such infringement possible.
13. Dayton and Aztec acted in concert and with wantonness, oppression, recklessness, and such malice as implies a gross indifference to the rights of Promotional Containers.
14. As a result of their wrongful actions, Dayton and Aztec were unjustly enriched, and their profits wrongfully obtained should be disgorged and awarded to Promotional Containers.
15. In order to ascertain the Defendants’ profits, the Plaintiff is entitled to an accounting from both Defendants.
WHEREFORE, Plaintiff prays for judgment:
A. that Aztec and Dayton infringed the ‘714 patent;
B. that Aztec and Dayton were unjustly enriched and their entire profits disgorged;
C. permanently enjoining Aztec and Dayton from infringing the ‘714 patent;
D. awarding damages pursuant to 35 U.S.C. §284, together with interest and costs for Aztec’s infringement of the ‘714 patent and order that such damages be increased up to three times the amount found or assessed;
E. an accounting from the Defendants of their profits from infringing the ‘714 patent;
F. awarding to the Plaintiff punitive damages;
G. awarding Plaintiff reasonable attorney fees;
H. trial by jury; and
I. granting Plaintiff such further relief as this Court may deem proper.
Respectfully submitted,
/s Leila G. O’Carra______________
Henry E. Kinser
Leila G. O’Carra
WYATT, TARRANT & COMBS, LLP
250 West Main Street, Suite 1600
Lexington, KY 40507-1746
859.233.2012
and
James D. Liles
KING & SCHICKLI, P.L.L.C.
247 North Broadway
Lexington, KY 40507
Counsel for Plaintiff
________________________________
A review of the record having indicated that the plaintiff has failed to file the disclosure statement required by Fed. R. Civ. P. 7.1, IT IS ORDERED that said corporation shall file such disclosure statement not later than ten (10) days from the date of this order, failing which its pleadings shall be subject to being stricken without further notice.
Signed on May 22, 2006
PROMOTIONAL CONTAINERS, INC., PLAINTIFF,
V. ORDER
AZTEC CONCRETE ACCESSORIES, INC., DEFENDANT.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
CIVIL ACTION NO. 04-336-JBC
PROMOTIONAL CONTAINERS, INC., PLAINTIFF,
V. ORDER
AZTEC CONCRETE ACCESSORIES, INC., DEFENDANT.
* * * * * * * * * * *
A review of the record having indicated that the plaintiff has failed to file the disclosure statement required by Fed. R. Civ. P. 7.1, IT IS ORDERED that said corporation shall file such disclosure statement not later than ten (10) days from the date of this order, failing which its pleadings shall be subject to being stricken without further notice.
Signed on May 22, 2006
Case 5:04-cv-00336-JBC Document 61 Filed 05/22/2006
Promotional Containers, Inc. v. Aztec Concrete Accessories, Inc.
Court: United States District Court for the Eastern District of Kentucky, Lexington Division
Case Number: 04-366
Type of Testimony: Expert Reports
Dates of Case: 2004 -
Case Description: This is a patent infringement case involving U.S. Patent No. 4,942,714. This patent and the civil action involve plastic bolsters that are commonly used to hold reinforcing bar in position during the pouring and setting of concrete. My role in this case is to assist the Defendant as a consultant and expert witness.
home.neo.rr.com |
