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Jack L. Frolow v. Wilson Sporting Goods Co

July 11, 2011

JACK L. FROLOW PLAINTIFF,
v.
WILSON SPORTING GOODS CO., DEFENDANT.



The opinion of the court was delivered by: Wolfson, United States District Judge:

NOT FOR PUBLICATION

OPINION

Presently before the Court is a motion by Defendant Wilson Sporting Goods Co. ("Defendant" or "Wilson") for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(a). The above-captioned matter concerns the procedures for an audit of royalties paid by Defendant to Plaintiff, the owner of various patents involving tennis racquets including, in relevant part, U.S. Reissue Patent No. RE 33,372 (the "372 Patent"), between 2001 through 2004. This case was tried to a jury on July 6 and 7, 2011. However, immediately following the conclusion of Plaintiff Jack L. Frolow's ("Plaintiff" or "Frolow") case-in-chief, Defendant moved for dismissal of Plaintiff's claims and requested that this Court enter Judgment in its favor under Rule 50(a). In an oral motion, Defendant contends that Plaintiff failed to establish a prima facie case for infringement of the 372 Patent, and, therefore, that this case must be dismissed. For the reasons set forth on the record on July 7, 2011, and which are supplemented herein, the Court grants Defendant's motion and enters Judgment in favor of Defendant.

I. FACTUAL AND PROCEDURAL BACKGROUND

Although this Court has recounted the facts of this case in each of its previous opinions, and is incorporating those facts herein, a brief repetition of the relevant facts as well as a recitation of newly developed facts is necessary to the Court's determination of the instant motion.

This case has a long history that spans more than six years and numerous lengthy opinions issued by two District Judges and one Magistrate Judge. Indeed, since the inception of this case in 2005, Plaintiff has represented himself pro se and has been represented by three separate law firms. Plaintiff ultimately retained his current counsel in April 2011 for the purpose of representing him at trial, the issues for trial having been severely limited during the six years of litigation and motion practice that preceded the July 2011 trial date.

The instant matter concerns a License Agreement ("Agreement") between the parties pursuant to which Frolow granted Wilson the exclusive right and license worldwide to use, manufacture, sell or otherwise dispose of tennis racquets covered by the 372 Patent. In exchange, Wilson agreed to pay Frolow royalties based on five percent of Net Sales of the "Licensed Articles" sold in the United States, and two percent of Net Sales of "Licensed Articles" sold outside of the United States. "Licensed Articles" are defined in the Agreement as: "tennis racquets that are covered by one or more unexpired or otherwise valid claims contained in the Licensed Patents and tennis racquets which are based on use of Frolow's know-how."

On October 3, 2005, Plaintiff filed a Complaint in this Court alleging claims for breach of contract and patent infringement arising out of the License Agreement. On April 5, 2006, the Honorable Stanley R. Chesler, U.S.D.J., issued an Opinion and Order providing that once the issue of which racquets sold by Wilson were subject to the License Agreement was resolved by the Court, any dispute about the calculation of damages would be subject to the dispute resolution mechanism set forth in Section 4.2 of the Agreement. Frolow v. Wilson Sporting Goods Co., No. 05-4813, 2006 WL 891201, at * 3 (D.N.J. April 5, 2006).

Following an audit, Plaintiff initially identified a total of 58 Wilson racquets that it alleged Wilson failed to report as Licensed Articles and for which Wilson failed to pay royalties. In response, Wilson did not dispute that 26 of the 58 racquets should be Licensed Articles; however, Wilson did dispute the inclusion of 29 of the racquets as well as an additional 9 racquets for which Wilson contended that it mistakenly paid royalties. Thereafter, Plaintiff filed a supplemental expert report which disclosed an additional 4 racquets that Plaintiff alleged were Licensed Articles. These 42 racquets were the subject of a summary judgment motion filed by Defendant on August 24, 2007.

On March 31, 2008, this Court entered an Order denying in part and granting in part Defendant's motion. Specifically, and in relevant part, the Court found that 37 of the 42 disputed racquets were not "Licensed Articles" as defined by the License Agreement. However, the Court denied Defendant's motion for summary judgment as to five of the disputed racquets -- T7067, T7455, T5712, T5832 and T7230 -- finding that there was an issue of material fact as to whether these five racquets fell within the 372 Patent and, thus, came within the definition of a Licensed Article. Frolow v. Wilson Sporting Goods Co., No. 05-4813, 2008 WL 8134447 (D.N.J. March 31, 2008).

The parties continued to litigate this case, and, on May 28, 2010, two years after this Court entered its initial Summary Judgment opinion, Wilson filed a Second Motion for Summary Judgment in which it sought an Order barring Plaintiff from: (1) adding any of 299 New Foreign Racquets; and (2) classifying all of the sales in foreign countries as U.S. Sales. In addition, on July 9, 2010, Plaintiff , acting pro se, filed a "Cross-Motion" for an Order allowing Plaintiff to present his claim of breach of the best efforts clause in the Parties' License Agreement. In an Opinion dated December 13, 2010, this Court granted Defendant's motion and denied Plaintiff's cross-motion. Thereafter, the Court scheduled a trial date for April 25, 2011.

However, on or around April 12, 2011, Plaintiff informed the Court that he had retained new counsel to represent him at trial and, as a result, the Court adjourned trial until July 6, 2011. Trial in the above-captioned matter commenced on July 6, 2011, and following Plaintiff's testimony and the submission of various factual stipulations, Plaintiff completed his case on July 7, 2011. Thereafter, Defendant moved pursuant to Fed. R. Civ. P. 50(a) for Judgment as a Matter of Law.

II. STANDARD

Rule 50(a) provides that "[i]f a party has been fully heard on an issue during a jury trial," a court may grant a motion for judgment as a matter of law where the "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [nonmoving] party ..." Fed. R. Civ. P. 50(a). Judgment as a matter of law under Rule 50 "should only be granted if the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief." Levine v. Voorhees Board of Ed.,, 2010 WL 2735303 at *1 (quoting Raiczyk v. Ocean County Veterinary Hospital, 377 F.3d 266, 269 (3d Cir.2004) (internal quotation marks omitted)). Indeed, "[a]lthough judgment as a matter of law should be granted sparingly, a scintilla of evidence is not enough to sustain a verdict of liability. The question is not whether there is literally no evidence supporting the ...


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