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VARDON GOLF CO. v. SUPREME GOLF SALES

July 20, 1990

VARDON GOLF COMPANY, INC., Plaintiff,
v.
SUPREME GOLF SALES, INC., (Ohio Corporation) d/b/a and Under Assumed Name of: GOLF MART, INC., Defendant


George W. Lindberg, United States District Judge.


The opinion of the court was delivered by: LINDBERG

LINDBERG, UNITED STATES DISTRICT JUDGE

 As a preliminary matter, the motion before the court is labeled a joint motion -- and is purportedly made by plaintiff and Mizuno, which is called a defendant. Mizuno is not a defendant, and a joint motion by plaintiff and a non-party would not seem appropriate in the posture of this case. The court has therefore treated the motion as plaintiff's.

 The request to add Mizuno as a defendant will be considered first. According to the motion:

 
2. Plaintiff and MIZUNO GOLF COMPANY have reached an agreement freeing MIZUNO of all liability prior to January 15, 1990 and precluding MIZUNO from manufacture and importation of infringing clubs after that date.
 
. . .
 
4. The parties desire the accompanying Consent Order and Injunction to be entered by the Court.

 It is apparent from this motion, the memorandum submitted in support of the motion, and the exhibits attached to the memorandum including a copy of the settlement agreement, that plaintiff and Mizuno have completely settled their dispute over the alleged infringement of plaintiff's patent.

 The Supreme Court has said:

 
The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy. . . . [A] federal court has neither the power to render advisory opinions nor "to decide questions that cannot affect the rights of litigants in the case before them." Its judgments must resolve "'a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" . . . As the Court noted last Term, . . . "The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. . . .

 Preiser v. Newkirk, 422 U.S., 395 at 401-02, 95 S. Ct. 2330, 2334, 45 L. Ed. 2d 272, (1975) (citations omitted). Because of the requirement of the existence of a live case or controversy, a federal court is unable to hear a moot case. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705, 40 L. Ed. 2d 164 (1974). If a dispute has been settled, it is moot. Matter of S. L. E., Inc., 674 F.2d 359, 364 (5th Cir. 1982). See also Lake Coal Company, Inc. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S. Ct. 553, 88 L. Ed. 2d 418 (1985); Buck's Stove & Range Company v. American Federation of Labor, 219 U.S. 581, 31 S. Ct. 472, 55 L. Ed. 345 (1911).

 The only authority plaintiff cites as supportive of its position that this case is not moot is one factually similar to the case at bar in which the question of whether the action was moot was apparently never raised. Plaintiff contends that the Sixth Circuit's failure to question the jurisdiction of the District Court in that case supports its position that the dispute with Mizuno is not moot. Schlegel Manufacturing Company v. USM Corporation, 525 F.2d 775, 777 (6th Cir. 1975). In light of the authority previously cited, this court will not follow what is at most an implicit, and may even have been a completely unconsidered, holding on the question of jurisdiction.

 In the case at bar, the dispute between plaintiff and Mizuno has been settled. It is moot and this court is constitutionally without jurisdiction to entertain it. Therefore, that portion of plaintiff's motion ...


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