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Prima Tek II, L.L.C. v. Klerk's Flexible Packaging

January 4, 2006

PRIMA TEK II, L.L.C., AN ILLINOIS LIMITED LIABILITY CORPORATION, PLAINTIFF,
v.
KLERK'S FLEXIBLE PACKAGING, BV, A DUTCH CORPORATION, AND HOLLAND PACK BV, A DUTCH CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM & ORDER

I. INTRODUCTION & FACTUAL BACKGROUND

Presently before the Court is defendant Klerk's Flexible Packaging BV ("Klerk's") and Holland Pack BV's ("Holland Pack") (collectively "Defendants") Motion to Dismiss, or in the Alternative, for a More Definite Statement and supporting memorandum. (Docs. 9 & 10.) Also before the Court is plaintiff Prima Tek II, L.L.C.'s ("Plaintiff" or "Prima Tek") Motion to Supplement Record in Connection with Defendants' Motion to Dismiss. (Doc. 30.)

Plaintiff filed its Complaint (Doc. 1) on April 5, 2005, stating four separate counts of federal patent infringement pursuant to 35 U.S.C. § 271 against Defendants. Plaintiff generally averred it was the rightful owner of said patents through an exclusive license of all rights (including the right to sue) and that defendants had directly or indirectly infringed one or more claims of each of the four stated patents.*fn1 The Complaint itself did not allege many relevant facts other than the aforementioned allegations. In lieu of an Answer, Defendants filed their Motion to Dismiss or in the Alternative for More Definite Statement. (Doc. 9.) Plaintiff filed its opposing Response to which Defendants filed their reply. (Docs. 24 & 25.)

Defendants' Motion to Dismiss is made pursuant to Federal Rule of Civil Procedure 12, based on several different affirmative defenses as follows:

(1) Pursuant to Federal Rule of Civil Procedure 12(b)(2), a dismissal should be warranted because the Court lacks personal jurisdiction over Defendants;

(2) Pursuant to Federal Rule of Civil Procedure 12(b)(5), a dismissal should be warranted based upon the affirmative defense that Plaintiff failed to properly serve Defendants; and

(3) Pursuant to Federal Rule of Civil Procedure 12(b)(3), a dismissal should be warranted based upon the affirmative defense that the venue of this case is improper under the doctrine of forum non conveniens.

In the alternative, Defendants have moved, pursuant to Federal Rule of Civil Procedure 12(e), for a more definite statement based on the grounds that Plaintiff's Complaint is too vague and ambiguous, preventing Defendants from responding adequately.

This is a patent infringement case. Plaintiff is an Illinois limited liability company, with its corporate headquarters in Highland, Illinois. It appears that Plaintiff's main corporate purpose is to serve as a licensing agent for certain patents and technology -- some of which are at issue in this case. (Doc. 10, p. 2.; see also Prima Tek II v. Klerk's Plastic Industries, Case No. 00-583-GPM, Doc. 132, p. 7, ¶ 4.) Specifically, the subject matter of the four patents at issue in this case deal with decorative sleeves used to cover potted plants.*fn2 (Doc. 24, p. 2.) The decorative plant sleeve at issue in this case is marketed under the name "Tylar" sleeve. (Id.) Plaintiff claims that Defendants infringed its patents when, in 2004, Defendants began to offer the Tylar sleeve for sale in the United States. (Id.)

Defendant Klerk's is a foreign Dutch business entity with its principal place of business in The Netherlands.*fn3 (Doc. 10, p. 2.) In the past, Klerk's previously entered into several separate licensing agreements with Plaintiff, granting it the right to manufacture and sell decorative plant sleeves. Both parties similarly state that these licensing agreements between Plaintiff and Klerk's no longer remain in effect. (Doc. 10, p. 2, Doc. 24, p. 2.) Klerk's alleges that it maintains no contacts with the state of Illinois since the termination of the licensing agreements with Plaintiff in 2002, except for contacts arising from litigation related to those prior license agreements. (Doc. 10, p. 2; see also Prima Tek II v. Klerk's Plastic Industries, BV, et al.,Case No. 00-583-GPM (S.D. Ill.).)

Klerk's states that it has no employees, officers or agents*fn4 in Illinois, is not licensed to do business in Illinois, does not own or rent property in Illinois, and does not purchase products from any Illinois-based company. Further, Klerk's states that it does not maintain a website offering products for sale to Illinois residents, does not maintain a bank account in Illinois, has no registered agent for accepting service of process in Illinois, nor does it attempt to recruit Illinois residents as future employees. Klerk's declares that it is no longer in a contractual relationship with Plaintiff. Lastly, Klerk's states that it has not sold any products in Illinois for the past five years. (Doc. 10, pp. 4-6.)

Defendant Holland Pack is also a foreign Dutch business entity with its principal place of business in The Netherlands. Holland Pack distributes various products for the floriculture industry, including plant sleeves. (Doc. 10, p. 2.)

Holland Pack also alleges that it has no contacts with the state of Illinois. Further, Defendants state that Holland Pack was not formed until 2005. (Id. at 5.) Documentary evidence, submitted by Plaintiff in its opposing Response, shows that Klerk's, in an undated letter sent to a potential customer, indicates it appointed Holland Pack as its newly appointed exclusive agent. (See Doc. 24, Ex. A-3, p. 7.)

Like Klerk's, Holland Pack is also a foreign corporation with no employees, officers or agents (except attorneys) in Illinois, is not licensed to do business in Illinois, does not own or rent property in Illinois, and does not purchase products from any Illinois-based company. Further, Holland Pack states that it also does not maintain a website offering products for sale to Illinois residents, does not maintain a bank account in Illinois, has no registered agent for accepting service of process in Illinois, and does not recruit Illinois residents as future employees. Holland Pack is also not currently in a contractual relationship with Plaintiff. Finally, Holland Pack states that it has never sold any products in Illinois. (Doc. 10, Ex. 8, ¶ 11.)

As Defendants' Motion to Dismiss raises several separate issues under Federal Rule of Civil Procedure 12, the Court will first address the ...


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