Petter Investments v. Hydro Engineering et. al.

7/30/2019 Petter Investments v. Hydro Engineering et. al.

1/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-1- COMPLAINT FOR PATENT INFRINGEMENTCase No. __________

Stephen M. Lobbin (SBN 181195)[email protected] A. Dube (SBN 177674)[email protected] F. OConnor (SBN 123398)[email protected]

THE ECLIPSE GROUP LLP550 West C Street, Suite 2040San Diego, California 92101Tel: 619.239.4340Fax: 619.239.0116

Attorneys for PlaintiffPetter Investments, Inc. d/b/a RIVEER

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Petter Investments, Inc. d/b/aRIVEER, a Michigan corporation,

Plaintiff,

v.

Hydro Engineering, Inc., a Utahcorporation, Enviremedial Services,Inc., a California company, CaliforniaCleaning Systems, a Californiacompany, andJ&S Equipment, aCalifornia company,

Defendants.

Case No. _______________

COMPLAINT FOR PATENTINFRINGEMENT, FALSEADVERTISING, INTENTIONALINTERFERENCE WITHPROSPECTIVE ECONOMICADVANTAGE, AND UNFAIRCOMPETITION

DEMAND FOR JURY TRIAL

For its Complaint, Plaintiff Petter Investments, Inc. d/b/a RIVEER (Riveer)

hereby alleges as follows:

JURISDICTION AND VENUE

1. This is an action including for infringement under the patent laws of thUnited States, 35 U.S.C. 101, et. seq. This Court has subject matter jurisdiction

'13CV1235 WMCLAB


2/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


over the patent claims of this action under 28 U.S.C. 1331 and 1338(a), and over

the remaining claims under 28 U.S.C. 1367(a).

2. This Court has personal jurisdiction over the Defendants because eachregularly conducts business in California and has committed the infringing actsalleged herein in California.

3. Venue is proper in this Judicial District under 28 U.S.C. 1391(b)-(c)and 1400.

PARTIES

4. Plaintiff Riveer is a Michigan corporation having its principal place ofbusiness at 233 Veterans Boulevard, South Haven, Michigan 49090, and having an

Internet home page at .

5. Upon information and belief, Defendant Hydro Engineering, Inc.(Hydro) is a Utah corporation having its principal place of business at 865 West

2600 South, Salt Lake City, Utah 84119, and having an Internet home page at

.

6. Upon information and belief, Defendant Enviremedial Services, Inc.(ESI) is a California company having its principal place of business at 2655 Vista

Pacific Drive, Oceanside, California 92056.

7. Upon information and belief, Defendant California Cleaning Systems ia California company having its principal place of business at 3666 San Gabriel

River Parkway, Pico Rivera, California 90660.

8. Upon information and belief, Defendant J&S Equipment is a Californiacompany having its principal place of business at 1630 Challenge Drive, Concord,California 94520.

9. Upon information and belief, the non-Hydro Defendants aredistributors of the accused infringing products. If and when other distributors or

customers of the accused products are ascertained who also may be subject to the

personal jurisdiction of this Court, Riveer may seek leave to amend this Complaint.


3/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


GENERAL ALLEGATIONS

10. For many years, Riveer and Hydro have competed in the market formodular wash rack systems used to enable washing vehicles and equipment in a

manner that allows for water and debris to be collected and recycled and/or disposedof in an environmentally-friendly way. Although Riveer is a small company with

only 35 employees, one of Riveers many strengths in the market is its focus on

building custom solutions meeting a customers exact specifications for materials,

design, and product capabilities.

11. Riveer is the owner by assignment of U.S. Patent No. 6,021,792 (the792 patent), which is entitled Modular Cleaning Facility, which duly and

lawfully issued on February 8, 2000, and a copy of which is attached hereto as

Exhibit A.

12. The claims of the 792 patent are directed to a modular cleaningsystem and recite elements including, inter alia, a modular wash rack including a

drainage fitting, a coupling means, a tube, and a filtering system

comprising a vacuum pump and an associated filter. The 792 patent covers

Riveers designs and protects Riveers exclusive right to sell its wash rack designs

without infringement by competitors such as Hydro, or its products.

13. On information and belief, Hydro has sold wash rack systems utilizinga vacuum pump.

14. Riveer is the owner by assignment of U.S. Patent No. 6,164,298 (the298 patent), which is entitled Modular Cleaning Facility, which duly and

lawfully issued on December 26, 2000, and a copy of which is attached hereto asExhibit B.

15. The claims of the 298 patent are directed to a modular cleaningsystem and recite elements including, inter alia, a modular wash rack including a

frame, a basin, a grate, a drainage fitting and coupling means, as well as

tube and a pump. The 298 patent covers designs including Riveers original


4/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


grate/basin modular wash rack design, and the 298 patent protects Riveers

exclusive right to sell its wash rack designs without infringement by competitors

such as Hydro, or its products.

16. Hydros wash racks exhibit the same grate/basin modular wash rackdesign covered by the claims of the 298 patent. Hydro simply collapsed its grate

and basin together. As to Claim 1 of the 298 patent, for example, on information

and belief Hydros wash racks include the following design features satisfying the

elements recited in Claim 1: (a) frame, (b) basin, (c) grate, (d) drainage

fitting, (e) coupling means, (f) tube, and (g) pump.

17. By making, using, selling, offering to sell and/or importing wash racksand components thereof that embody all of the features recited in the claims of the

298 patent, Hydro and each of the other Defendants has infringed and still infringes

the 298 patent.

18. In addition, upon information and belief, Hydro has caused, encouragedand aided others, including its customers and distributors (including the other

Defendants), to directly infringe the 298 patent having full knowledge of the 298

patent and the specific intent that its acts and the acts of its distributors and

customers directly and/or indirectly infringe the 298 patent.

19. In addition to patent infringement, Hydro also has engaged in falseadvertising, has intentionally interfered repeatedly with Riveers prospective

business advantage, and has competed unfairly with Riveer, by making

misrepresentations and false statements to potential purchasers of Riveers wash

rack systems, including the U.S. government. Hydros conduct in this regard hascaused Riveer to lose business and profits, and has otherwise damaged Riveer

unfairly and illegally.

20. As a first example, Hydro represents to potential customers that it has acertification under the Underwriters Laboratories Standard UL-1776 High-Pressure

Cleaning Machines for products that are not in fact listed as UL-1776 certified,


5/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


including its Aircraft Washing System (AWS) and Advanced Total Aircraft

Washing System (ATAWS) products, and its MV-22 washers. Some of these

misrepresentations by Hydro are evidenced in the attached Exhibit C. On

information and belief, such misrepresentations have caused Hydro to win businessthat otherwise would have been Riveers, in addition to defrauding customers

including the U.S. General Services Administration (GSA) who have specified the

UL-1776 certification as a requirement for certain winning bids.

21. A second example is Hydros bid on a recent VCI Marine Corpsproject. On information and belief, Hydro misrepresented that its proposed product

met the required specification of stainless steel equipment, when in fact Hydro was

not able to provide, and did not provide, stainless steel equipment. This

misrepresentation, along with others, allowed Hydro to quote a bid price below that

of Riveer, and win the bid, only because stainless steel equipment is much more

expensive than the mild steel material that Hydro used in completing the project.

22. A third example is Hydros actions surrounding a recent solicitation bythe U.S. Army at Barstow, California. In 2011, the Army purchased a Riveer

custom wash rack system including many unique features, such as automatic mud

conveyers, a stainless steel recycling system, a solar generating system, and a diesel

generator. Because the Army was very satisfied with Riveers system, the Army

communicated to Riveer an interest in purchasing 34 additional units, and solicited

bids for an initial 4 units. The bid specifications required equipment at least as

capable as the Riveer system already in use, including two troughs, an automatic

mud conveyer, a vacuum filter, a stainless steel tank, and an ozone injection system23. Hydro submitted a bid knowing that it did not meet the specifications,

but nonetheless Hydro won the initial bid with a price well below Riveers bid price

which was higher because of the additional costs required to be able to meet the bid

specifications. The Army, however, granted a protest by Riveer dated October 9,

2012 stating that it should have been awarded the contract contemplated by the


6/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Solicitation, [but instead] the Army improperly evaluated Hydros proposal and/or

relaxed material Solicitation requirements in Hydros favor. Further, a counter-

protest by Hydro was rejected, and Riveers distributor was awarded its attorney

fees incurred because of the necessity of the protest action.24. Although the Army project is now being re-bid, in the mean time,

Hydros interfering actions have caused Riveer to lose profits at least because of the

delay and the costs involved in the re-bid process.

25. Another example is the interference by Defendant ESI, who issued areport evaluating a Riveer system for MCRC Brook Park, Ohio. ESIs report

contained many misrepresentations, primarily because that the system being

evaluated was designed not for cleaning heavily mudded equipment or for salt

removal, but rather as a paint preparation aqueous cleaner system having very

different specifications than those used in the ESI report to reach inaccurate and

misleading conclusions about the Riveer system. ESIs misrepresentations cast

Riveer in a negative light and damaged Riveers prospects for future business with

the Marine Corps.

FIRST CLAIM FOR RELIEF

(Infringement of U.S. Patent No. 6,164,298)

26. Riveer incorporates by this reference all of the allegations stated in theabove paragraphs.

27. By the acts of making, using, offering to sell, selling and/or importingthe Hydro wash racks and/or components thereof, the Defendants and each of them

has directly infringed the 298 patent under 35 U.S.C. 271(a).28. By the acts of actively inducing others to infringe the 298 patent, the

Defendants and each of them has infringed the 298 patent under 35 U.S.C.

271(b). By the acts of providing components used in practicing the inventions

claimed in the 298 patent, the Defendants and each of them has infringed the 298

patent under 35 U.S.C. 271(c).


7/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


29. Hydro has known about the 298 patent and its acts of infringementasserted herein have been and continue to be deliberate and willful.

30. The Defendants have derived and received gains, profits andadvantages from the aforesaid acts of infringement, and Riveer has lost profits andhas otherwise been damaged and is entitled to monetary relief in an amount to be

determined at trial.

31. The Defendants infringement of the 298 patent has caused andcontinues to cause irreparable harm to Riveer, for which there is no adequate

remedy at law, and the infringement will continue unless and until it is enjoined by

this Court.

SECOND CLAIM FOR RELIEF

(False AdvertisingLanham Act 43(a))


33. Through Hydros misrepresentations concerning bid specifications andthe capabilities and certifications concerning Hydros products, Hydro has made

material, deceptive, false or misleading representations of fact in interstate

commerce constituting false advertising and has thereby caused injury to Riveer

including loss of goodwill and diversion of sales that likely would have been

acquired by Riveer.

34. Hydros false advertising has caused Riveer to suffer actual damagesincluding lost profits, in an amount to be determined at trial, plus consequential

damages. Hydros false advertising also has resulted and continues to result in theunjust enrichment via profits to Hydro.

35. Hydro has committed its acts of false advertising willfully andmaliciously to injure Riveers business and improve its own, thereby entitling

Riveer to an award of increased damages and attorney fees.


8/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


36. Riveer also has suffered and continues to suffer irreparable injury,including damage to its customer relationships because of the false advertising.

Such irreparable injury cannot be remedied adequately unless Hydro is enjoined

immediately from further false advertising.37. Riveer has no adequate remedy at law for the injuries it has suffered

and continues to suffer, as it will be impossible for Riveer to determine the precise

amount of damage it will suffer if Hydros conduct is not restrained.

THIRD CLAIM FOR RELIEF

(False AdvertisingCal. Bus. & Prof. Code 17500 et seq.)


39. Through Hydros misrepresentations concerning bid specifications andthe capabilities and certifications concerning Hydros products, Hydro has

knowingly made deceptive, untrue and misleading representations constituting false

advertising and has thereby caused injury to Riveer including loss of goodwill and

diversion of sales that likely would have been acquired by Riveer.

40. Hydros false advertising has caused Riveer to suffer actual damagesincluding lost profits, in an amount to be determined at trial, plus consequential

damages. Hydros false advertising also has resulted and continues to result in the

unjust enrichment via profits to Hydro.

41. Hydro has committed its acts of false advertising willfully andmaliciously to injure Riveers business and improve its own, thereby entitling

Riveer to an award of exemplary damages and attorney fees.42. Riveer also has suffered and continues to suffer irreparable injury,

including damage to its customer relationships because of the false advertising.

Such irreparable injury cannot be remedied adequately unless Hydro is enjoined

immediately from further false advertising.


9/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


43. Riveer has no adequate remedy at law for the injuries it has sufferedand continues to suffer, as it will be impossible for Riveer to determine the precise


FOURTH CLAIM FOR RELIEF(Intentional Interference With Prospective Economic Advantage)


45. By virtue of its regular competition with Riveer, including bidding onmany of the same projects for potential customers, Hydro has been and is well

aware Riveers many existing and prospective customer relationships, including

with the U.S. government including the GSA, the Marine Corps, and the Army.

46. Through Hydros misrepresentations concerning bid specifications andthe capabilities and certifications concerning Hydros products, Hydro has

intentionally interfered with Riveers existing and prospective business with these

customers, and potentially others, by diverting business to Hydro that likely would

have been acquired by Riveer.

47. Hydro intended to interfere with Riveers prospective economicadvantage, and Hydros intentional interference has caused Riveer to suffer actual

damages including lost profits, in an amount to be determined at trial, plus

consequential damages. Hydros intentional interference with prospective economic

advantage also has resulted and continues to result in the unjust enrichment of

Hydro.

48.

Hydro has committed its acts of intentional interference withprospective economic advantage willfully and maliciously to injure Riveers

business and improve its own, thereby entitling Riveer to an award of exemplary

damages and attorney fees.


10/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


FIFTH CLAIM FOR RELIEF

(Unfair CompetitionCal. Bus. & Prof. Code 17200 et seq.)


50. By its acts above constituting intentional interference with prospectiveeconomic advantage, Hydro has employed unlawful and unfair business acts or

practices, in violation of Cal. Bus. & Prof. Code 17200 et seq.

51. Hydros unfair competition has resulted in and continues to result inunjust enrichment, and Hydro has committed its acts of unfair competition willfully

and maliciously to injure Riveers business and improve its own, thereby entitling

Riveer to an award of exemplary damages and attorney fees.

52. Riveer also has suffered and continues to suffer irreparable injury,including damage to its customer relationships because of the intentional

interference and unfair competition. Such irreparable injury cannot be remedied

adequately unless Hydro is enjoined immediately from further interference and

unfair competition.

53. Riveer has no adequate remedy at law for the injuries it has sufferedand continues to suffer, as it will be impossible for Riveer to determine the precise


PRAYER FOR RELIEF

Therefore, Plaintiff Riveer prays for the following relief:

A. A determination that each Defendant has infringed the 298 patentunder 35 U.S.C. 271;

B. A determination that Hydro has falsely advertised its products inviolation of 43(a) of the Lanham Act and Cal. Bus. & Prof. Code 17500;

C. A determination that Hydro has intentionally interfered with Riveersprospective economic advantage;

D. A determination that Hydro has competed unfairly with Riveer;


11/12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


E. A preliminary and permanent injunction against the continuing patentinfringement, false advertising, intentional interference with prospective economic

advantage, and unfair competition;

F. An accounting for damages adequate to compensate for the patentinfringement under 35 U.S.C. 284, including Plaintiffs lost profits, treble

damages, pre-judgment and post-judgment interest, and costs;

G. A determination of willful patent infringement, and that this is anexceptional case, and an award of attorney fees and expenses to Plaintiff under 35

U.S.C. 285;

H. An accounting for damages adequate to compensate for the falseadvertising and intentional interference with prospective economic advantage,

including Riveers lost profits and amounts attributable to Hydros unjust

enrichment, consequential damages, treble damages, exemplary damages, attorney

fees, pre-judgment and post-judgment interest, and costs; and

I. Such other and further relief as this Court deems just and proper.Respectfully submitted,

Dated: May 24, 2013 THE ECLIPSE GROUP LLP

By: /s/ Stephen M. LobbinAttorneys for PlaintiffPetterInvestments, Inc. d/b/a RIVEER


12/12

'13CV1235 WMCLAB

; 15:1126

Date post:	14-Apr-2018
Category:	Documents
Upload:	priorsmart
View:	218 times
Download:	0 times

Petter Investments v. Hydro Engineering et. al.

Documents