United States District Court, D. New Jersey
RAGNER TECHNOLOGY CORP. and TRISTAR PRODUCTS INC., Plaintiffs,
MICHAEL BERARDI and NATIONAL EXPRESS, INC., Defendants.
P. BAKOS, NOAM J. KRITZER, BAKOS & KRITZER J. STEVEN
BRAUGHMAN PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP
On behalf of Plaintiffs Ragner Technology Corp. and Tristar
R. CURTIN, GEORGE C. JONES, MCELROY, DEUTSCH, MULVANEY &
CARPENTER, LLP EDWARD F. MCHALE, BRIAN M. TAILLON, KENNETH W.
COHEN, ANDREW D. LOCKTON, MCHALE & SLAVIN, P.A. On behalf
of Defendants Michael Berardi and National Express, Inc.
L. HILLMAN, U.S.D.J.
a Walker Process action related to other patent
infringement litigation pending in the District of New
Jersey. This Opinion addresses Defendant National Express,
Inc. (“National Express”) and Michael
Berardi's (“Mr. Berardi” and, collectively,
“Defendants”) Motion to Dismiss for Failure to
State a Claim and Plaintiff Ragner Technology Corporation
(“Ragner Technology”) and Tristar Products
Inc.'s (“Tristar Products” and, collectively,
“Plaintiffs”) Motion for Leave to File a
Sur-Reply. For the reasons that follow, the Court will deny
both motions, without prejudice.
this Court has already opined on a motion to dismiss, this
Court will rely on the alleged facts stated in its previous
Opinions of February 7 and March 22, 2018. As relevant, this
Court will note the new allegations made in Plaintiffs'
Third Amended Complaint (“TAC”) filed on April
21, 2018 in its analysis of Defendants' Motion to
Dismiss. Even though this Court will not generally restate
the facts of this case in their entirety, this Court will
describe some basic facts and procedural history to provide
context for its decision.
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.
agent hired by Ragner Technology informed Defendants that
Ragner Technology was seeking to meet with investors. A
meeting was scheduled 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, which
took place at the home of the Mr. and Mrs. Berardi. Edward
Kelly, CEO of Defendant National Express, was also present.
Mr. and Mrs. Berardi were introduced as Kelly's producers
for his television commercials.
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. The parties began to
manufacture and sell products based on the patents described,
National Express, in conjunction with others, sued Tristar
Products, and others, for patent infringement on some of the
patents described supra in October 2012 in the
Southern District of Florida. See Blue Gentian LLC, et
al. v. Tristar Products, Inc., et al., Civil No.
1:13-cv-01758 (NLH/AMD)(“Blue Gentian”).
The case was eventually transferred to the District of New
Jersey where Tristar Products filed its first answer and
counterclaims in January 2014.
30, 2014, Plaintiffs filed a complaint in the Southern
District of Florida alleging conspiracy to monopolize (in the
alternative, attempt to monopolize) (Count I) (the
“Walker Process claim”); common law
fraud (Count II); and breach of contract (Count III) against
Mr. Berardi, Cheryl Berardi (“Mrs. Berardi”),
Greg Janson, National Express, and the Estate of Edward
October 9, 2015, Judge Dimitrouleas issued a sua
sponte Order requiring Plaintiffs to show cause why the
Southern District of Florida should not transfer the matter
to the District of New Jersey. Upon full briefing, Judge
Dimitrouleas transferred this action to the District of New
Jersey, where it was first assigned to Kevin McNulty,
U.S.D.J. A Second Amended Complaint (“SAC”) was
filed on April 29, 2016.
to dismiss were filed by all Defendants, with those by Mr.
and Mrs. Berardi specifically addressing whether the District
of New Jersey could properly assert personal jurisdiction
over them. The case was reassigned to the undersigned in
December 2016. Shortly thereafter, this Court issued an Order
to Show Cause why this case should not be stayed, a hearing
was held, and another Order was filed requesting the parties
to specifically address why this case should be stayed
pending decision in Blue Gentian or the hearing
before the Patent Trial and Appeal Board (“PTAB”)
on the ‘076 patent. This Court lifted the stay in May
in January 2017, Tristar Products, among others, moved before
this Court - in the Blue Gentian matter -to
consolidate all pending related matters in this District. On
April 11, 2017, this Court denied that motion on grounds that
consolidation would lead to one unmanageable case that would
be less, rather than more, efficient than trying the cases
March 22, 2018, this Court filed an Opinion and Order
dismissing Mrs. Berardi - from this case - for lack of
subject matter jurisdiction and dismissed the SAC, granting
leave for Plaintiffs to amend. Within this Opinion, the Court
specifically requested that the parties address whether the
Walker Process claim should be considered a
compulsory counterclaim that should have been filed in the
Blue Gentian matter. Plaintiffs filed the TAC on
April 21, 2018, again asserting the same Walker
Process and Florida common law claims.
21, 2018, Defendants filed the instant motion to dismiss.
Defendants' Motion to Dismiss was fully briefed by both
parties. After full briefing, Plaintiffs filed a Motion for
Leave to File a Sur-Reply on July 10, 2018. It appears no
opposition was filed, but Defendants filed a Notice of
Supplemental Authority and Plaintiffs responded in October
2018. Accordingly, the motions are fully briefed and ripe for
Subject Matter Jurisdiction
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1337.
Motion to ...