Opinion
Civil No. 97-1134 MJD/JGL
January 23, 2003
David C. Forsberg, Kurt J. Niederluecke, Briggs and Morgan, and Malcolm L. Moore, Moore and Hansen, for and on behalf of Plaintiff.
J. Thomas Vitt, Sri K. Sankaran, Dorsey Whitney LLP, for and on behalf of Defendant Mobil Oil Corporation.
James H. Patterson, Casey A. Kniser, Patterson, Thuente, Skaar Christensen, P.A., for and on behalf of Defendant EnecoTech Midwest, Inc.
Michael S. Ryan and Katherine E. Becker, Murnane, Conlin, White Brandt, for and on behalf of Defendant Amoco Corporation.
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action against the named defendants alleging patent infringement. On May 4, 2000, this Court issued a Memorandum Opinion and Order granting Mobil Corporation's ("Mobil") and EnecoTech Midwest, Inc.'s ("EnecoTech") motions for summary judgment as to non-infringement. Before the Court is Plaintiff's Motion For Reconsideration of the Court's Order of May 4, 2000, and Mobil's motion in limine to exclude evidence of infringement and damages.
Defendant Amoco Corporation ("Amoco") also moves the Court for reconsideration of its Order dated January 4, 2002, in which Amoco's motion for summary judgment was denied as premature. The basis for the denial was the fact that Amoco had not yet turned over actual site drawings of the remediation systems. Since that time, actual site drawings have been turned over. Amoco now asks that the Court enter summary judgment in its favor as to the following remediation systems: 1) single straw; 2) multiple straw; 3) single trench or AL"; and 4) enhanced fluid recovery (EFR). Based on the Court's claim construction, Amoco asserts none of these systems infringe, either literally or by equivalents, the `407 or `122 patents.
In his opposition brief, Plaintiff does not challenge Amoco's motion with respect to the `122 patent.
I. Plaintiff's Motion for Reconsideration A. Factual Background
Plaintiff is the owner of two patents at issue in this litigation. U.S. Patent No. 4,183,407 (`407 Patent) involves an exhaust system and process for removing underground contaminant vapors. U.S. Patent No. 4,323,122 (`122 Patent) involves a process for recovering organic liquids from underground areas. Both patents generally involve the placement of collection elements below ground in an area contaminated with gasoline, fuels, or other undesirable materials. The collection elements are connected to a conduit that extends to the ground surface. A fan or vacuum source is then connected to the above ground portion of the conduit, which draws air and contaminants through the collection elements and the conduit to the ground surface for recovery or treatment.Plaintiff filed this action on May 6, 1997 alleging that the named Defendants used soil vent systems that violated his patents literally and under the doctrine of equivalents. In the May 4, 2000 Opinion and Order, the Court construed the claim language and determined that the single straw, multiple straw, single trench, or multiple trench configurations described in Mobil's and EnecoTech's motions did not infringe either patent.
B. Standard for Reconsideration
The Federal Rules do not provide for a motion for reconsideration, but such motions have been construed consistent with Rules 59(a) and 60(b)(2); rules that allow a court to vacate a judgment or order and to reopen a case in certain limited circumstances such as newly discovered evidence. Anthony v. Runyon, 76 F.3d 210, 215 (8th Cir. 1996). To succeed on a motion based on newly discovered evidence, the evidence had to have been truly unavailable. Id. A[A] motion for reconsideration should not be used `as a vehicle to introduce new evidence that could have been adduced during the pendency of the [previous] motion." Id. (citing Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.) cert. denied, 488 U.S. 820 (1988)). Motions for reconsideration also serve the purpose of correcting a manifest error of law or fact. Hagerman, 829 F.2d at 414. Finally, reconsideration may be justified on the basis of an intervening change in the controlling law. Grozdanich v. Leisure Hills Health Center, Inc., 48 F. Supp.2d 885, 888 (D.Minn. 1999) (citations omitted).
1. Reconsideration regarding Mobil
Plaintiff seeks reconsideration of the Court's ruling that Mobil's straw and trench systems do not infringe the `407 patent. Plaintiff argues no evidentiary basis exists in the record concerning the trench systems. This is incorrect. Exhibits 3 and 5 to the Gallagher Affidavit, submitted with Mobil's motion for summary judgment, are examples of a single trench and a multiple trench system. In the current motion, Plaintiff does not address these exhibits in any way. As there is no dispute as to the accuracy of these exhibits, there is no basis upon which to reconsider this Court's ruling with respect to these trench systems.
Plaintiff is not seeking reconsideration of the Court's claim construction as to either patent or to the Court's Order granting summary judgment as to noninfringement of the `122 Patent.
With respect to the straw systems, Plaintiff first argues that no evidentiary basis exists for the Court's finding that single straw systems do not infringe the `407 patent. Plaintiff asserts that to support this aspect of its motion, Mobil presented the Court drawings of its Anoka site in which a vapor extraction system was utilized. See Exhibits 1 and 2 to Gallagher Affidavit. Plaintiff argues, however, that the Anoka site utilized two wells, and that a more complete set of drawings, as well as a three dimensional model, show that the system used at the Anoka site infringes the `407 patent.
Contrary to Plaintiff's argument, there is an evidentiary basis for the Court's grant of summary judgment with respect to single straw systems. Mobil submitted the affidavit of Mark Gallagher, who is responsible for the assessment and remediation of subsurface contamination at Mobil sites. Gallagher Aff. at 1. He stated that he is aware of four soil vapor extraction designs used by Mobil consultants, one of which is the single straw system. Id. at 8. He further stated that a single straw system involves one collection element, and provided an example of such a system used at the Anoka site during pilot testing. Id. at 9 and 10. The Gallagher affidavit thus provides the evidentiary support for the Court's ruling with respect to the single straw system. As this Court noted previously, there is no dispute that a system utilizing one collection element did not infringe. Accordingly, it was not error for the Court to rule as it did with regard to single straw systems. As will be discussed below, even if Anoka is construed as a multiple straw system, summary judgment was nonetheless appropriate.
With regard to multiple straw systems, Plaintiff contends that the drawings submitted by Mobil did not adequately represent the dimensions of the systems. See Exhibits 1, 4 and 5. He argues that the schematics presented to the Court do not adequately inform the Court as to whether the collection elements are parallel. Plaintiff has not, however, presented any newly discovered evidence to show that the collection elements shown in the relevant exhibits were not parallel. The additional drawings now submitted to the Court by Plaintiff were available at the time the Court heard Mobil's motion for summary judgment in February 1999. Thus, they cannot be considered "newly discovered" for purposes of this motion. In addition, the three dimensional models were prepared from these same drawings, as well as drawings originally submitted to the Court. Plaintiff could have constructed these models in opposition to Mobil's motion for summary judgment, but did not do so. The Court will not now, nearly four years later, reopen the record to Plaintiff to make arguments he should have made initially. See, Innovative Home Health Care, Inc., 141 F.3d 1284, 1286 (8th Cir. 1998) (finding that a motion to alter judgment under Rule 59(e) cannot be used to tender new legal theories or raise arguments that could have been raised prior to entry of judgment.)
As the Court has not been presented with newly discovered evidence, and reconsideration is not needed to correct a manifest error of law or to address a change in the law, Plaintiff's motion must be denied.
2. Reconsideration regarding EnecoTech
In support of its motion for summary judgment, EnecoTech did not produce any drawings, but relied on the description of its soil vent systems provided in the Steve McManamon affidavit. Plaintiff now argues that the May 4, 2000 Order cannot bear upon any of the EnecoTech vent systems because it failed to present evidence of non-infringing vent systems. This argument was not made, however, in opposition to EnecoTech's motion for summary judgment. Also, Plaintiff contends that the EnecoTech site drawings produced in discovery demonstrate that EnecoTech's system configurations are similar to Mobil's systems and infringe the `407 Patent under the same analysis articulated in the above Mobil discussion.
As discussed above, a motion for reconsideration is limited to correcting manifest errors of law or fact, to present newly discovered evidence, or to address an intervening change in controlling law. Plaintiff's motion, with respect to EnecoTech, is not based on any of these circumstances. Plaintiff bases its motion on drawings in his possession prior to the hearing on summary judgment in February 1999. Reconsideration is not appropriate based upon evidence that is not newly discovered. In addition, EnecoTech provided an evidentiary basis for judgment in the form of the declaration of Steven McManamon. Plaintiff now argues that this declaration is not an appropriate basis for judgment in favor of EnecoTech, because EnecoTech's systems are similar to Mobil's, and, like the Mobil systems, the three dimensional models show that the collection elements are angularly spaced from each other and the conduit. For the reasons stated above, however, this is an argument that could have, and should have been raised in response to EnecoTech's motion for summary judgment. It is thus not an appropriate basis for reconsideration.
II. Mobil's Motion in Limine to Exclude Evidence of Infringement and Damages
Mobil requests that the Court preclude Plaintiff from asserting any claim of infringement against Mobil and from seeking any damages from Mobil pursuant to Federal Rules of Civil Procedure 26, 33 and 37 because Plaintiff failed to respond to contention interrogatories regarding claims of infringement and damages. Mobil asserts that prior to this motion, Plaintiff had not identified any infringement theory as to any site other than Anoka, MN. Following the Court's May 4, 2000 Order, there were only three Mobil sites remaining potentially at issue. Amoco argues that in reliance upon the Court's Order and Plaintiff's subsequent inaction with respect to the case against Mobil, Mobil has not hired independent experts on infringement or damages, and did not hire an expert to assist with invalidity defenses. Thus, permitting Plaintiff to proceed with additional theories of infringement would be prejudicial and unfair to Mobil.
Based on the Court's finding with respect to Plaintiff's motion for reconsideration, the Court agrees that Plaintiff's new theories of infringement should be not presented at trial. Accordingly, Mobil's motion will be granted.
III. Amoco's Motion for Partial Summary Judgment
As a preliminary matter, Plaintiff argues that Amoco is not entitled to summary judgment because its production of site drawings is seriously deficient. Plaintiff argues that Amoco has not turned over all relevant site drawings as is evidenced by the gaps in the sequence of the drawings.
Amoco asserts that site drawings and information for soil remediation are voluminous; exceeding hundreds or thousands of pages per site. Amoco concedes that not all pages in a soil remediation file were turned over to Plaintiff, but that such fact is a red herring as the missing pages have no relevance to the issue of infringement. For example, some of the drawings or figures that were not turned over depicted ground water flow direction, subsurface contours, contaminant concentration levels, the extent of the contaminant plume or other general site information. Schaeffer Affidavit 17.
Plaintiff responds that such information is relevant to the issue of infringement. For example, information as to the extent of the contaminant plume is relevant to claim 1(1) in that the shaft must be placed within the contaminated area. However, as noted by Amoco, the `407 patent teaches the removal of underground contaminants, and that drawings that show the extent of a contaminant plume are not dispositive of the area underground that is contaminated. With regard to the other classes of documents that have been withheld, the Court finds that these documents are not necessary to address the pending summary judgment motion. The Court will thus proceed to address the merits of Amoco's motions for partial summary judgment.
A. Standard for Summary Judgment
Summary judgment as a matter of law is appropriate when no genuine issue of material fact exists in the record. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986). A fact is material if resolving disputes concerning that fact affects the outcome of the case. See Anderson, 477 U.S. at 248. A dispute is genuine if, based on the evidence, a reasonable jury could return a verdict for either party. See id. at 252. On a motion for summary judgment, the Court views all evidence and inferences in a light most favorable to the nonmoving party. See id., 477 U.S. at 250. The moving party carries the burden to demonstrate the absence of any genuine issue of material fact. Fed.R.Civ.P. 56(b); Celotex, 477 U.S. at 323.
B. Analysis 1. Single Straw and Single Trench Systems
Relying on this Court's Order of May 4, 2000, Amoco asserts that the single straw and trench systems do not infringe the `407 patent, because these systems do not have the required "two or more collection elements." The single straw system similarly does not infringe the `122 patent because they do not have the required collection head as defined by the Court.
As this Court noted in the May 4, 2002 Order, Plaintiff conceded that a system with only one collection element would not infringe the `407 patent. Plaintiff nonetheless challenges Amoco's motion for summary judgment with respect to the single straw and trench systems on the basis that Amoco has presented no evidence of such systems. For example, Plaintiff asserts that the site drawings Amoco refers to as an example of the single straw system show only one well out of a system with multiple wells and is not evidence of a single straw system. Plaintiff directs the Court to Exhibit A to the Schaeffer Affidavit; a drawing that shows a single well. Plaintiff further directs the Court to the lower right hand corner which labels the well as "VEW1". Plaintiff argues this label suggests that there is a VEW2. Plaintiff cannot defeat a motion for summary judgment based on conjecture. Rather, Plaintiff "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1985). As Plaintiff has only put forth argument, rather than evidence, challenging Amoco's submissions with regard to the single straw system, the Court finds that Amoco is entitled to summary judgment with respect to the single straw systems.
With respect to the single trench system, Plaintiff argues that the site drawing that purportedly represents such a system is not a system at all. He argues that the single drawing submitted, Exhibit D to the Schaeffer Affidavit, does not suggest that there are no other wells or collection elements. Plaintiff, on the other hand, has no proof that the site represented in Exhibit D has multiple collection elements. For the reasons stated above, this argument is not sufficient to defeat summary judgment.
2. Multiple Straw Systems
Amoco also argues that based on the Court's Order of May 4, 2000, it should be granted summary judgment as to the multiple straw systems. These systems utilize multiple vertical pipes with perforations that allow vapor entry. Schaeffer Aff. 13. There are two types of multiple straw systems; those using a trunk line and those using a manifold system. Id. The trunk line system involves a pipe extending out from a vacuum source. Id. A horizontal pipe, the trunk line, is connected to this pipe and runs to the area to be remediated. Id. Multiple, vertical straws are connected to the trunk line and descend vertically into the ground. Id. The straws typically have their own shafts, and are substantially parallel to each other. Id. The manifold system involves a pipe which extends from a vacuum source, and is connected to a manifold to which is connected a series of horizontal pipes which run to the area to be remediated. Id. at 14. Multiple, vertical straws are then connected to the horizontal pipes, and extend into the contaminated area underground. Id. Each straw has its own shaft, and the straws are substantially parallel. Id.
Amoco asserts that the multiple straw systems described above do not infringe the `407 patent as the straws, which act as the collection element, are not at angles to each other. In addition, the `407 patent is limited to a system with one shaft, while the multiple straw systems employ multiple shafts — that is each well or "straw" is located within a shaft as construed by the Court. With respect to the `122 patent, the multiple straw system does not employ a collection head as defined in the May 4, 2000 Order.
Plaintiff argues that Amoco has misconstrued the Court's construction of "shaft." He argues that shaft is the opening through which the conduit extends from above to below ground level; the opening the surrounds the shaft. Thus, Amoco's systems have one shaft. The Court disagrees.
The `407 patent, as construed by the Court in the May 4, 2000 Order, clearly requires one shaft that extends into a contaminated area from the ground surface, one conduit that has an orientation consistent with the shaft, and multiple collection elements, angularly spaced, located within the contaminated area that are attached to the lower end of the conduit. As the shaft and the conduit are co-extensive, both must extend from the ground surface to a point underground within the contaminated area. Plaintiff, on the other hand, argues only that the shaft is the opening through which the conduit extends below ground level — not necessarily into the contaminated area. The Court thus finds that Amoco's multiple straw systems have more than one shaft — that is more than one hollow opening from the ground surface to a point within the contaminated area.
In addition, Amoco has presented the Court evidence that the collection elements in the multiple straw systems are substantially parallel. Schaeffer Aff. 13 and 15. Plaintiff contends that without overhead views of the sites where such systems are installed, it is not possible to determine whether the collection elements are at an angle. However, to defeat summary judgment on this issue, Plaintiff must put forth evidence, not argument, which raises a genuine issue of material fact with respect to whether the collection elements are substantially parallel. Plaintiff has not met his burden in this regard. Accordingly, the Court finds that Plaintiff has not shown a genuine issue of fact exists as to whether the collection elements are not substantially parallel.
3. EFR Systems
Approximately 171 of Amoco's sites have the EFR system. These systems are a dual phase system that employs a vacuum to remove liquids and/or vapors, and consists of piping that generally extend vertically from the vacuum source to either a single or horizontal pipe or manifold, which is connected to multiple horizontal pipes that run to the area to be remediated. Schaeffer Aff. 17. A drop pipe is connected to the horizontal pipe by an elbow joint, which is dropped through the center of an existing well. Id. The horizontal piping either runs above or below the ground. Id. at 18. Attached to Schaeffer's Affidavit are two drawings representing EFR systems. One is an actual site drawing, Exhibit E, while the other is an exemplar drawing, because no actual site drawings exists depicting, in all material respects, that particular EFR system. Stercho Affidavit 3.
Amoco argues that to the extent the EFR system has a single collection point utilizing a single drop line, it is similar to the single straw system. To the extent there are multiple collection points, with multiple drop points, there is no infringement because the collection elements are substantially parallel.
Plaintiff argues that Amoco is not entitled to summary judgment with respect to the EFR systems because the drawings representing the EFR systems are not authentic and are without foundation. For example, Amoco's expert testified that with respect to the EFR systems, in some instances the horizontal piping runs above ground and in others, below ground. However, Amoco's Exhibits show only piping above ground. Also, the expert discusses EFR systems that have a single drop pipe, yet no such system is represented in the exhibits. Amoco also argues the collection elements are parallel, yet the exhibits don't show the collection elements in the horizontal plane to demonstrate that the collection elements are not installed at an angle.
Despite Plaintiffs' criticisms of Amoco's proof with regard to the EFR systems, the Court finds that Amoco is entitled to summary judgment with respect to these systems. Plaintiff has again failed in his burden of putting forth any evidence to contest Mr. Schaeffer's testimony concerning his personal knowledge of the EFR systems. In addition, whether or not the horizontal pipes are above or under ground surface has no bearing on the Court's finding of non-infringement of the `407 patent, because the evidence shows that the drop pipes — which represent the collection element — are substantially parallel. Once again, Plaintiff cannot meet his burden on summary judgment through conjecture or speculation.
IT IS HEREBY ORDERED that:
1. Plaintiff Duane Knopik's Motion for Reconsideration is DENIED.
2. Mobil Corporation's Motion in Limine to Exclude Evidence of Infringement and Damages is GRANTED.
3. Amoco's Motion for Partial Summary Judgment is GRANTED. The Court hereby finds that Amoco has not infringed, contributed to the infringement of, or induced infringement of the `407 and `122 patents with respect to the Single Straw, Multiple Straw, Single Trench and Enhance Fluid Recovery soil remediation systems.