You Miss 100% of the Shots You Don’t Take

And you missed this one too. Actually, the parties just needed some clarification as to the scope of Judge Payne’s grant of a motion for partial summary judgment on a license defense The defendant requested clarification that the finding that the accused products were “Combined Licensed Products and Services” under one theory of infringement extended to all of the plaintiff’s infringement theories.

Motion for Summary Judgment Denied; Claims Dismissed

No, that’s not a typo. Plaintiff sought summary judgment on all the claims in the case – both against her and as to her counterclaims. After requesting supplemental briefing on the viability of the counterclaims, Judge Jordan denied the motion as to her counterclaims under the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, et seq., and the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq., and then dismissed them under FRCP 56(f) because both failed as a matter of law.

Factual Disputes As To Rat Feces

Parker’s Beetle “really” wanted to come inside during the 2021 freeze.

This is an insurance coverage case. Judge Durrett recommended granting the defendant’s motion for partial summary judgment in part, finding that the defendant was entitled to summary judgment as to any and all claims against Defendant for claimed losses related to trees, shrubs, or landscaping or pool damage due to the 2021 winter freeze, as well as their claims for breach of the duty of good faith and fair dealing, claims under the Texas Insurance Code, but that there was a fact issue with regard to the rat feces and the Texas Prompt Payment Act claim.

Motion to Grant Summary Judgment As To Claims Against School District

Meanwhile, across the district in Beaumont Judge Truncale similarly granted in part a school district’s motion for summary judgment with respect to similar claims against it. The court granted summary judgment as to the Plaintiffs’ post-reported Title IX claims, but denied it as to their “heightened risk” claims. And of the plaintiffs’ 1983 claims, only Plaintiffs’ failure to train its employees claim survived.

Preemption Summary Judgment?

Judge Payne denied this motion for summary judgment, finding that the Plaintiff’s negligent hiring of a truck driver claims against the defendant were not preempted by federal law, and not supported by evidence. Despite finding the plaintiff’s opposition “largely unhelpful” Judge Payne nonetheless concluded that courts across the country have largely decided this issue in one of three ways: finding the preemption language of 49 U.S.C. §14501 does not cover claims of negligent hiring; the preemption language does cover such claims but the claims fall under the safety exception of §14501(c)(2); or that the preemption language covers such claims and they do not fall under the safety exception. He also found that Texas recognizes the tort of negligent hiring, including for an independent contractor and thus there was a duty for Keystone to violate, and that “Plaintiff has provided evidence that, when viewed in the light most favorable to Plaintiff, would show Keystone violated its duty by failing to vet Avnoor and that but for that violation Plaintiff would not have been injured.”

Motion For Summary Judgment Of Noninfringement Granted

This order follows up on Judge Albright’s ruling at final pretrial conference in this case striking portions of the plaintiff’s expert report on infringement for substituting new infringement theories, and accordingly dismissing the plaintiff’s case with prejudice.  In response to a motion for reconsideration, it vacates and supersedes the prior order.

Amendment of Contentions & Summary Judgment

Judge Ellison denied both the plaintiff’s motion for leave to amend its preliminary infringement contentions and the defendant’s motion for summary judgment as moot,finding that the plaintiff properly amended its contentions under Patent Rule 3-6, and that the defendant’s summary judgment motion was addressed to a patent that was no longer being asserted and contentions that had since been supplemented.

A Dispute of Summary Judgment Rulings

What else would you call them? A scintilla? In any event, Judge Payne issued four orders recommending resolution of the numerous pending summary judgment motions in this case. He recommended granting the defendant’s motions for (1) summary judgment of noninfringement as to the ‘525 patent, (2) partial summary judgment of noninfringement under the doctrine of equivalents, and (3) partial summary judgment of pre-suit willful infringement, but denying the motion for partial summary judgment of no presuit indirect infringement. He also recommending granting the plaintiff’s motion for summary judgment on certain of the defendant’s affirmative defenses, including its attempt to reserve the right to add more defenses later.