Mike Boyle, doing business as Surface Dynamix, and his son, Christopher, have filed an emergency motion asking a judge for the U.S. District Court in Oregon to reconsider her recent order which imposed sanctions on them in the form of attorneys’ fees in the alleged patent infringement lawsuit. The Boyles also requested the judge reconsider their motion to dismiss the case writing, “the disputed order contains incorrect factual findings as well as errors of law that will result in manifest injustice to the defendants unless corrected.”
When imposing the sanctions, the judge also denied GlasWeld’s motion for default judgment.
“FRCP Rule 11c requires notice and reasonable opportunity to respond to an order to show cause before any penalty can be imposed,” the Boyles write in their motion. “The court’s order denying defendants’ motion for default by simply stating, ‘There is no default.’ Not one word was stated as to the underlying substantive allegations of defendants’ motion. After receiving that one sentence order the pro se defendants then realized that their motion for default was procedurally incorrect, as the court had stated.
“Defendants’ interpretation was that the court’s ruling was solely procedural, i.e. the defendants had asked for the wrong remedy,” the Boyles add. “As defendants admit their mistake, their error was unintentional, unlike the repetitive motion filing in bad faith or willful disregard of the court’s prior rulings for which Rule 11(b)(c) sanctions are properly applied. Defendants request the opportunity to be heard before monetary sanctions are levied.”
The Boyles asked the court to remove the sanctions.
According to the Boyles, the judge did not dismiss the case because “dismissal would be inappropriate for one discovery failure” by GlasWeld.
“Plaintiffs have never filed the supplemental disclosure pleading as promised in their initial disclosure Rule 26 filing,” the Boyles write in court documents.
“[W]illful failure to comply with the initial disclosure requirements of Rule 26 is a proper motion to dismiss remedy,” they add.
The Boyles have asked the judge to reconsider her ruling and remove the sanctions, writing “this was not a frivolous motion [to dismiss], just restated in the proper form.”