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Blue Gentian, LLC v. Tristar Products, Inc.

United States District Court, D. New Jersey

April 11, 2017

BLUE GENTIAN, LLC, et al., Plaintiffs,
TRISTAR PRODUCTS, INC., et al., Defendants.

          GRAHAM CURTIN, P.A. By: George C. Jones, Esq.

          McHALE & SLAVIN, P.A. By: Edward F. McHale, Esq. Kenneth W. Cohen, Esq.Andrew D. Lockton, Esq. Counsel for Blue Gentian, LLC; National Express, Inc.; Michael Berardi; Cheryl Berardi; DAP Products, Inc. and E. Mishan and Sons, Inc.

          BAKOS & KRITZER By: Noam J. Kritzer, Esq. Edward P. Bakos, Esq. Counsel for Tristar Products, Inc.; Wal-Mart Stores, Inc.; and Ragner Technology Corporation

          PRYOR CASHMAN By: Jeffrey L. Snow, Esq. Counsel for Telebrands Corporation


          HILLMAN, District Judge

         Presently pending in this District are seven cases[1] involving various patents, all concerning expandable hose technology, which are undisputedly “related” under the Court's local rule.[2] For reasons that are difficult to entirely reconstruct at this point, not all of the cases were properly designated, or immediately recognized, as being related. Now, more than four years after the above-captioned case was filed, Defendants to this suit, Tristar Products, Inc., and Wal-Mart Stores, Inc., move to consolidate this case, and Ragner I, both pending before the undersigned here in this District's Camden Vicinage, with four other cases pending before District Judge Salas in this District's Newark Vicinage: Tristar, Telebrands I, Ragner II, and Telebrands III.[3]

         The Court held oral argument on the motion on March 8, 2017. For the reasons stated herein, the motion will be denied.



         The Court recites portions of the interwoven procedural histories of the seven related cases to the extent those histories are relevant to, and provide context for, the instant Motion to Consolidate.

         The above-captioned case, Blue Gentian, which is the first-filed of the seven cases, was filed on October 23, 2012 in the Southern District of Florida. In March, 2013, upon Defendant Tristar's Motion, the case was transferred to this District.

         Tristar, the second-filed case, was filed in this District on December 20, 2013. At the time Tristar was filed, it appears it could have been designated as a related case to Blue Gentian (which was, at the time, assigned to now-retired District Judge Hochberg). However, the civil cover sheet for Tristar does not identify any related cases.

         After Tristar had successfully moved to transfer Blue Gentian from the Southern District of Florida to this Court, in May, 2014, Tristar and Ragner filed Ragner I in the Southern District of Florida. Presumably the choice to file in Florida, despite the two pending New Jersey cases, was based on personal jurisdiction concerns.[4] However, what seems to be more significant is the fact that after the Florida District Judge sua sponte raised the issue of the potentially related New Jersey litigation (See Docket 15-7752, Entry #47), Tristar took a position that appears to be in conflict with the position it takes here. In response to the Florida District Judge's order, Tristar identified both Blue Gentian and Tristar, but argued those cases were not sufficiently related to Ragner I:

The Court has raised a concern that the federal antitrust claim in the instant action overlaps with the issues being adjudicated by the District of New Jersey in these cases. Plaintiffs respectfully submit that while the [Blue Gentian] action involves assertion of the patents which give rise to the claims in the present action, the District of New Jersey is solely concerned with the validity, enforceability, and potential infringement of those patents (i.e., the District of New Jersey will need to determine whether the Berardi patents were procured by inequitable conduct or fraud to determine if these patents are valid and enforceable). The District of New Jersey is not being asked to determine whether the actions of Michael Berardi, Cheryl Berardi, Edward Kelly, and National Express were tantamount to antitrust. While both Courts will look to overlapping facts, the analysis before this Court falls under an entirely different standard than the standard for inequitable conduct (fraud on the United States Patent and Trademark Office). That is, because the standards are different, this Court can determine whether Defendants' actions constitute an antitrust violation without fear of inconsistent rulings, even if the New Jersey Court finds that Defendants' patents are invalid due to inequitable conduct. Further, the Court in its Order recognizes that the present action also involves claims resounding in fraud and breach of contract to be adjudicated under the laws of the state of Florida, with respect to actions that occurred wholly within the state of Florida.
Plaintiffs respectfully submit that while the [Tristar] matter involves Ragner Technology Corp., Tristar Products, Inc., and National Express, Inc., the defendants Michael Berardi, Cheryl Berardi, and Edward Kelly are not parties to the action. Furthermore, the [Tristar] matter relates to the enforcement of patents owned by Ragner Technology Corp. and licensed to Tristar Products, Inc. The enforceability of the patents owned by Blue Gentian, LLC are not currently expected to be an issue in the [Tristar] matter, as the Ragner patents at issue have a priority date that long precedes the facts that give rise to Plaintiffs' antitrust claim presented in the present matter.
In response to the Court's stated concern regarding potentially inconsistent rulings with respect to the federal claims presented in the presently Amended Complaint, Plaintiffs respectfully submit that because of the difference in scope and standard in the [Blue Gentian] matter, the different intellectual property at issue in the [Tristar] matter, and the intricacies of applying laws of the state of Florida to the presented facts, inconsistent rulings are highly unlikely.

(Docket 15-7752, Entry #49, p. 2-3)

         Thereafter, on May 5, 2015 the ‘076 patent was issued.[5] On the same day, Telebrands I was filed in this District. Telebrands I was designated as related to both Blue Gentian (at that point assigned to the undersigned) and Tristar, and assigned to District Judge Salas, in Newark, who was (and is) presiding over Tristar.

         Then, Tristar and Ragner filed Ragner II in the District of Delaware. This time, like Ragner I, it appears that the initial choice to file in a court other than the District of New Jersey may have been driven by personal jurisdiction concerns. However, Ragner II was ultimately transferred to this District on the defendants' motion. Notably, Tristar opposed transfer to New Jersey (see Docket 15-8185, Entry #16), even though by that time--October, 2015-- Tristar was both a plaintiff and a defendant in related actions ...

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