United States District Court, D. New Jersey
RAGNER TECHNOLOGY CORP. and TRISTAR PRODUCTS INC., Plaintiffs,
MICHAEL BERARDI, CHERYL BERARDI, GREG JANSON, NATIONAL EXPRESS, INC., and ESTATE OF EDWARD KELLEY, Defendants.
APPEARANCES: EDWARD P. BAKOS NOAM J. KRITZER BAKOS &
KRITZER On behalf of Plaintiffs
R. CURTIN GEORGE C. JONES GRAHAM CURTIN
MORRISTOWN, NEW JERSEY 07962-1991 On behalf of Defendants
L. HILLMAN, U.S.D.J.
Opinion addresses two separate but partially overlapping
motions: Defendant National Express, Inc.'s Motion to
Dismiss for Failure to State a Claim and Defendants Michael
Berardi and Cheryl Berardi's Motion to Dismiss for Lack
of Personal Jurisdiction, Improper Venue, and Failure to
State a Claim.
reasons that follow, this Court finds Plaintiffs' Second
Amended Complaint has not sufficiently pleaded that this
Court has personal jurisdiction over Defendant Cheryl
Berardi. The Court is inclined to dismiss Mrs. Berardi as a
party defendant and allow this case to otherwise proceed in
the District of New Jersey. The Court will allow supplemental
briefing from the parties regarding how this case should
proceed before issuing its final decision.
following facts come from Plaintiffs' April 29, 2016
Second Amended Complaint. On September 25, 2005, U.S. Patent No.
6, 948, 527 (“the ‘527 patent”) entitled
“Pressure-Actuated Linearly Retractable and Extendible
Hose” was issued to Gary Dean Ragner and Robert Daniel
deRochemont, Jr. On June 23, 2009, U.S. Patent No. 7, 549,
448 (“the ‘448 patent”) entitled
“Linearly Retractable Pressure Hose” was issued
to Ragner. Ragner Technology is the owner and assignee of all
rights to the ‘527 and ‘448 patents, subject only
to exclusive licenses granted to Tristar Products.
2011, Ragner Technology was introduced to Greg Janson, who
appeared to be interested in investing in Ragner Technology
or bringing Ragner Technology to the attention of potential
investors. Janson was hired as a broker to recruit investors
for Ragner Technology's patented products.
informed Defendants that Ragner Technology was seeking to
meet with investors. Janson scheduled a meeting between
Ragner Technology and Defendants for August 23, 2011. On
August 23, 2011, Ragner, deRochemont, and Margaret Combs, CEO
of Ragner Technology, arrived in Jupiter, Florida for the
scheduled meeting. At that time, they learned they were at
the home of the Berardi Defendants. Also at the meeting was
Edward Kelly, CEO of Defendant National Express. Janson and
Vince Simonelli, a business broker, were also present at the
meeting. The Berardi Defendants were introduced as
Kelly's producers for his television
start of the meeting, Ragner Technology made clear it was
seeking investors and not licensing opportunities. Prior to
disclosing any confidential information, Combs informed the
Berardi Defendants and Kelly that non-disclosure agreements
had not been prepared because they had been unaware of whom
they were meeting with. Nonetheless, Combs insisted on a non-
disclosure agreement before commencing the meeting. The
Berardi Defendants and Kelly verbally agreed to terms of
confidentiality and non-disclosure for the meeting. They also
agreed to execute written non-disclosure agreements to be
sent by Combs following the meeting.
the oral agreement, Ragner Technology “disclosed
information relating to Ragner Technology, the scope of its
patents, product specifications, and target market of the
Microhose product.” They further disclosed
specific engineering diagrams, ideas, materials of
manufacture, including but not limited to, prior iterations
of prototype hoses and prototype hoses constructed of more
than one layer, more than one material, at least one fabric
layer, various materials of manufacture including but not
limited to, vinyl, nylon, rubber, polyester, and/or
polypropylene, at least one layer with cord reinforcement
including a hose wherein the biasing was performed by elastic
material such as polymers made of thermoplastic polyurethane
to provide retracting force, manufacture know-how, concepts,
etc. related to its prototypes of the Microhose product.
Technology also demonstrated one of the patented prototypes
of the Microhose product. Mr. Berardi was able to use one of
the patented prototypes and saw it expand and retract.
the meeting, National Express articulated its interest in
licensing the patented technology and an intent for the
product to be manufactured in Taiwan. Ragner Technology
reiterated its request was solely for investors, but also
conveyed its hesitancy to use a foreign manufacturer. After
reassuring Ragner Technology of the capabilities of its
foreign manufacturing contact, Kelly requested permission to
contact the foreign manufacturer to address its ability to
manufacture the product using the patented technology,
subject to the terms of the non-disclosure agreement. Ragner
Technology agreed to that limited disclosure. Kelly indicated
he would contact the manufacturer as discussed.
morning following the meeting, August 24, 2011, Combs
prepared the non-disclosure agreements, all dated August 23,
2011. The non-disclosure agreements were never executed by
Defendants. Ragner Technology was similarly never contacted
regarding Kelly's communications with the manufacturer in
little over two months later, on November 4, 2011, Mr.
Berardi filed a patent application entitled “Expandable
and contractible hose, ” which Plaintiffs allege
“claim[ed] novel features of the prototypes of the
Microhose product demonstrated by Ragner Technology at the
August 23, 2011 meeting.” Mr. Berardi obtained U.S.
Patent No. 8, 291, 941 (“the ‘941 patent”),
entitled “Expandable and contractible hose, ”
U.S. Patent No. 8, 291, 942 (“the ‘942
patent”) entitled “Expandable hose assembly,
” and U.S. Patent No. 8, 479, 776 (“the
Gentian, LLC is the owner of all the rights in the
‘941, ‘942, and ‘776 patents. Mr. Berardi
is a managing member of Blue Gentian. Blue Gentian, in turn,
granted National Express the exclusive right under the
‘941, ‘942, and ‘776 patents to market and
sell the expandable hose product.
filed their initial complaint on May 30, 2014 in the United
States District Court for the Southern District of Florida.
This was followed by a First Amended Complaint on June 25,
2015. This matter was then transferred, sua sponte, from the
Southern District of Florida to the District of New Jersey by
the Honorable William P. Dimitrouleas, U.S.D.J. on October
28, 2015. This case was originally assigned to the Honorable
Kevin McNulty, U.S.D.J. before being reassigned to the
undersigned on December 2, 2016 because of the pendency of
April 29, 2016 Second Amended Complaint brings three counts
against Defendants: conspiracy to monopolize (in the
alternative, attempt to monopolize) (Count I); common law
fraud (Count II); and breach of contract (Count III).
Court begins by considering the Berardi Defendants'
argument that this Court lacks personal jurisdiction over
them. As this case was transferred from the Southern District
of Florida, the Court first considers any decisions made by
that court with regard to personal jurisdiction.
“law of the case” doctrine “posits that
when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in
the same case.” Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 815-16 (1988). This
“doctrine applies as much to the decisions of a
coordinate court in the same case as to a court's own
decisions.” Id. at 816. “Federal courts
routinely apply law-of-the-case principles to transfer
decisions of coordinate courts.” Id.
“Indeed, the policies supporting the doctrine apply
with even greater force to transfer decisions than to
decisions of substantive law; transferee courts that feel
entirely free to revisit transfer decisions of a coordinate
court threaten to send litigants into a vicious circle of
order transferring this case to the District of New Jersey,
the Southern District of Florida did not specifically address
whether this Court has personal jurisdiction over Defendants.
Its order stated, in pertinent part:
The Court concludes that it would serve the interest of
justice for this case to be transferred to the District of
New Jersey, as the claims in this action may be affected by,
and are intricately related to, several pending actions in
the District of New Jersey involving the same set of patents
and related patents for expandable and contractible garden
hose that are at issue in the instant controversy. Two other
related actions filed in the Southern District of Florida
have been transferred to the District of New Jersey. It is
likely that there could be inconsistent rulings among the
various federal district courts regarding the patents at
issue and the conduct by which the patent-holders obtained
Plaintiffs Ragner Technology Corporation, and Tristar
Products, Inc. consent to transfer on the grounds that the
District of New Jersey is an appropriate venue pursuant to 28
U.S.C. § 1404(a) and that transfer will serve the
interests of justice. Defendant National Express, Inc.
consents to the transfer and to jurisdiction for this matter
in the District of New Jersey.
Defendants Michael Berardi and Cheryl Berardi do not dispute
that transfer pursuant to § 1404(a) would serve the
interests of justice; however, they assert that the District
of New Jersey does not have personal jurisdiction over both
individuals. Plaintiffs acknowledge that Michael Berardi and
Cheryl Berardi may attempt to challenge personal jurisdiction
in the District of New Jersey. Nonetheless, Plaintiffs are
willing to face that potentiality and request that the Court
transfer the action to the District of New Jersey pursuant to
(citations and footnotes omitted).
the Southern District of Florida did not specifically
conclude that venue and personal jurisdiction were proper in
the District of New Jersey, “[a]n action can be brought
only where the court has personal jurisdiction over
defendants, and thus a court does not have authority to
transfer a case to a court that lacks personal
jurisdiction.” Hunt v. Global Incentive &
Meeting Mgmt., No. 09-4921, 2010 WL 3740808, at *8
(D.N.J. Sept. 20, 2010) (citing Sunbelt Corp. v. Noble
Denton & Assocs., Inc., 5 F.3d 28, 31-33 (3d Cir.
1993)); accord Hoffman v. Blaski, 363 U.S. 335, 344
(1960) (“If when a suit is commenced, plaintiff has a
right to sue in that district, independently of the wishes of
defendant, it is a district ‘where [the action] might
have been brought.' If he does not have that right,
independently of the wishes of defendant, it is not a
district ‘where it might have been brought, ' and
it is immaterial that the defendant subsequently [makes
himself subject, by consent, waiver of venue and personal
jurisdiction defenses or otherwise, to the jurisdiction of
some other forum].” (alterations in original) (citing
Blaski v. Hoffman, 260 F.2d 317, 321 (7th Cir.
1958))); Chrysler Credit Corp. v. Country Chrysler,
Inc., 928 F.2d 1509, 1515 (10th Cir. 1991)
(“§ 1404(a) does not allow a court to transfer a
suit to a district which lacks personal jurisdiction over the
defendants, even if they consent to suit.”); Corry
v. CFM Majestic, Inc., 16 F.Supp.2d 660, 663 (E.D. Va.
1998) (“[T]ransfer is possible only if venue and
personal jurisdiction are proper in the transferee forum.
And, importantly, these requirements cannot be
it might be said that the Southern District of Florida
necessarily and implicitly concluded that the District of New
Jersey was a proper venue and had personal jurisdiction over
all Defendants in determining it was appropriate to transfer
the case to the District of New Jersey. See
generally Africa v. City of Philadelphia, 158
F.3d 711, 718 (3d Cir. 1998) (“The law of the case
doctrine . . . acts to preclude review of only those legal
issues that the court in a prior appeal actually decided,
either expressly or by implication . . . .”
(emphasis added)). Accordingly, the law of the case at this
time is that jurisdiction is proper in the District of New
Jersey, as implicitly concluded by the Southern District of
decision of the transferor court that the suit could have
been brought in the transferee court is the law of the case
and should not be reconsidered except in unusual
circumstances.” Hayman Cash Register Co. v.
Sarokin, 669 F.2d 162, 168, 170 (3d Cir. 1982)
(“Once the transferor court has decided the issue of
whether the suit ‘could have been brought' in the
transferee court, 28 U.S.C. § 1406(a), this ruling
becomes the law of the case. If the party opposing the
transfer believes the decision is erroneous, it can either
seek reconsideration in the transferor court, or else
petition for a writ of mandamus in the court of appeals of
the circuit in which the transferor court is located. A
disappointed litigant should not be given a second
opportunity to litigate a matter that has been fully
considered by a court of coordinate jurisdiction, absent
unusual circumstances.” (citations omitted)).
however, “the law-of-the-case doctrine ‘merely
expresses the practice of courts generally to refuse to
reopen what has been decided, not a limit to their
power.'” Christianson, 486 U.S. at 817.
“A court has the power to revisit prior decisions of
its own or of a coordinate court in any circumstance,
although as a rule courts should be loath [sic] to do so in
the absence of extraordinary circumstances such as where the
initial decision was ‘clearly erroneous and would work
a manifest injustice.'” Id. (quoting
Arizona v. California, 460 U.S. 605, 618 n.8 (1983))
(“Thus, even when a [transferor court]'s decision
was law of the case, the [transferee court] did not exceed
its power in revisiting the jurisdictional issue, and once it
concluded that the prior decision was ‘clearly
wrong' it was obliged to decline jurisdiction.”).
A district court may reconsider a previous decision that has
become law of the case under four circumstances: (1) where
the transferor judge becomes unavailable, thereby precluding
a party from filing a motion for reconsideration; (2) where
new evidence is available; (3) where a supervening change in
law occurs; or ...