Chassidy Lucas Slam Dunk

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT TACOMA
ENPAC, LLC,
Plaintiff,
v.
CHASSIDY F. LUCAS, and CB
STORMWATER LLC d/b/a STORM
WATER LLC,
Defendants.

Civil Action No. 11-cv-37
ENPAC’S REPLY IN SUPPORT OF MOTION FOR CONTEMPT
Note on Motion Calendar: March 23, 2012

Lucas should be found in contempt of this Court’s order enjoining her from representing
or implying to Enpac customers that Enpac products infringe the ‘591 patent. Lucas does not
deny that she intentionally contacted an Enpac customer and accused the customer of
infringement.
There is no good faith excuse; indeed, Lucas knew it was an Enpac product before
making the customer contact. This action by Lucas is the same exact conduct that prompted the
filing of the complaint in the first place, and the violation of the injunction should be sanctioned.

Plaintiff, Enpac, L.L.C. (“Enpac”), filed a Motion for Contempt (Document 80) on March
6, 2012, which was supported by the Declarations of Randolph E. Digges, III (Document 81),
Timothy Reed (Document 82) and Tracey Weyandt (Document 83). Enpac’s Motion and
supporting Declarations establish that on February 28, 2012, Defendant, Dr. Chassidy F. Lucas
(“Lucas”) contacted one of Enpac’s distributors, namely New Pig Corporation of Tipton,
Pennsylvania (“New Pig”), and represented and/or implied that one of Enpac’s STORM
SENTINEL products infringes the claims of U.S. Pat. No. 7,771,591 (“the ‘591 patent”) in direct violation of this Court’s Order Granting Plaintiff’s Motion for Preliminary Injunction entered on
February 8, 2011 (Document 16).

On March 7, 2012, Lucas filed the Declaration of Bianca Lucas (Document 85)(1)1 and the
Declaration of Chassidy Lucas (Document 86), both of which appear to relate to the Motion for
Contempt. Enpac assumes that the Declarations constitute Lucas’s response to the Motion for
Contempt. Enpac will address the subsequent filings made by Lucas (Documents 87-93), which
do not appear to be related to the Motion for Contempt, in separate papers.

Of primary importance, Lucas admits that she contacted New Pig on February 28, 2012
regarding a catch basin insert product they were selling (see Document 86 at ¶3). While her
declaration describes an inquiry regarding whether the product was currently being sold and
makes no mention of the infringement accusation, it does not deny that she represented and/or
implied to New Pig’s customer service representative during a telephone call that Enpac’s
STORM SENTINEL product being advertised and sold on the New Pig website infringes the
‘591 patent. Evidence of this allegation of infringement was provided in Enpac’s opening brief,
as was a statement from Lucas expressly representing to Enpac that the New Pig product
infringed the ‘591 patent(2).

(1)Enpac objects to the declaration of Bianca Lucas as constituting hearsay and lacking in
foundation. Bianca Lucas does not state that she was present during or participated in the New
Pig call, and she lacks foundation to address any alleged variations in or qualities of the products
at issue. There is also no foundation for the utterly false and baseless statement that Enpac
informed her that the New Pig product is not an Enpac product. Finally, the declaration is not
submitted under penalty of perjury or attested under oath, and is therefore inadmissible.

(2)Lucas expressly accused New Pig of infringing the ‘591 patent in an e-mail sent to Enpac’s
counsel prior to the filing of the Motion for Contempt (see Document 81, page 5):
THIS “NEW” INSERT THAT APPEARED OUT OF NO WHERE REALLY VIOLATES OUR PATENT THAT PUTS THIS DIRECTLY INTO A NEW COMPLAINT. [...] THIS IS A WHOLE NEW INFRINGMENT. ENPAC NOR RONI IS SELLING THIS NEW DESIGN WE CAME ACROSS “ONLY NEW PIG”.
This corroborates the testimony from New Pig that Lucas made similar representations to New
Pig’s customer service representative during the February 28, 2012 telephone call.

While Lucas does not dispute the infringement accusation, she attempts to characterize
the call as an inquiry into whether the product was currently offered for sale and further
describes it as a “New product.” (See Document 86 ¶4). The assertion that the STORM
SENTINEL products depicted on the New Pig website are “new” is completely baseless, and
would not excuse Lucas’s actions even if it were true.

The products on the New Pig website look the same as Enpac’s STORM SENTINEL
brand catch basin inserts that are the subject of this litigation. Because they are the same, Lucas
is utterly unable to point to any physical difference in the appearance of the products. Both also
bear the STORM SENTINEL trademark registered to Enpac, making it perfectly clear that the
New Pig product also originated with Enpac.

Lucas claims the product shown on the New Pig website is “new” (and not an Enpac
product) because New Pig advertises that the product has a capability of receiving 500 gallons
per minute (“GPM”), whereas Enpac STORM SENTINEL products have a maximum “receiving
ratio”3 of 300 GPM (See Document 86 at ¶4). Lucas has identified no other purported
differences between the STORM SENTINEL products shown on the New Pig website and the
Enpac STORM SENTINEL products she falsely accused of infringing the ‘591 patent prior to
the commencement of this case and which gave rise to this Court’s Order at issue.

It is not clear where Lucas got the erroneous impression that Enpac STORM SENTINEL
products only have a maximum receiving ratio of 300 GPM. In the Declaration of Timothy D.
Reed, filed more than a year ago on January 7, 2011 (Court Document 3), Mr. Reed attached as
Exhibit 3 a copy of a portion of Enpac’s 2010 catalog. The catalog advertised that Enpac’s
STORM SENTINEL adjustable catch basin inserts have “up to [a] 500 GPM overflow rate,” as
reproduced below (with the red circle added to indicate the 500 GPM).

The term “receiving ratio” references the volume of water that can flow through a catch basin
insert per unit of time and is also sometimes referred to in the industry as flow rate and/or
overflow rate.

The STORM SENTINEL product advertised on the New Pig website is clearly not a
“new” product. It is the same STORM SENTINEL product that Enpac has been selling since the
commencement of this case and which is the subject of the Court’s prior Order Granting
Plaintiff’s Motion for Preliminary Injunction entered on February 8, 2011. Consequently, Lucas
reached out to an additional customer to accuse it of infringing the ‘591 patent by selling the
identical product that prompted the injunction in the first place.

Lucas does not affirmatively deny that she knew the STORM SENTINEL product being
advertised and sold via New Pig’s website was an Enpac product. And such an argument would
be disingenuous, at best, because Lucas clearly knows it was an Enpac product. As previously
noted, the products on the New Pig website are being sold under the STORM SENTINEL
trademark, which is a registered trademark of Enpac (see Third Declaration of Randolph E.
Digges, III at ¶3 and Exhibit 1 attached thereto). The STORM SENTINEL products shown on
the New Pig website look the same and have the same features as the STORM SENTINEL
products shown on the Enpac website. In her declaration, Lucas acknowledges that New Pig told
her that it was a SENTINEL product. Enpac’s counsel also expressly informed Lucas before the
filing of the Motion for Contempt that the STORM SENTINEL products being sold on the New
Pig website are Enpac’s products (see Document 81 at page 6, item 5). And, perhaps most
tellingly, Lucas sent an e-mail to Enpac’s counsel on February 25, 2012, three days before she
contacted New Pig, in which she affirmatively identified the STORM SENTINEL catch basin
insert advertised on New Pig’s website as an Enpac product:

See Third Declaration of Randolph E. Digges, III, at ¶4 and Exhibit 2 attached thereto.
The attachment to the e-mail sent by Lucas to Enpac’s counsel on February 25, 2012
included a picture of the STORM SENTINEL product taken from the New Pig website, which is
reproduced for the Court’s convenience below (the photo has been reduced in size). This is
plainly the same product as depicted in the Reed declaration attached to Court Document 3.

Enpac notes that even if it was the case that the STORM SENTINEL product being
advertised and sold by New Pig was “new” due to an increase in the maximum receiving rate
from 300 GPM to 500 GPM (which is clearly not the case), such circumstance would not excuse
Lucas’s actions. The Court’s injunction orders Lucas not to accuse Enpac customers of
infringement, period. It does not allow her to make accusations if she believes a product is
different or concludes there is a reasonable basis for the accusation. Even if it did allow for
infringement accusations based on good faith differences, Lucas makes no effort to identify any.
Indeed, the purported difference between the 300 or 500 GPM flow rate is utterly irrelevant to
the infringement analysis and Lucas does not contend otherwise. No part of the Lucas response
attempts to explain how one could possibly reach a conclusion that Enpac’s STORM SENTINEL
product, which is being advertised and sold on the New Pig website, infringes the ‘591 patent. It
is impossible to do so.

Thus, the evidence before the Court makes it clear that:
(1) the STORM SENTINEL
products being advertised and sold by New Pig are Enpac’s STORM SENTINEL products;
(2) the STORM SENTINEL products being advertised and sold by New Pig are not “new”, but
rather are of the same design and configuration as when this litigation commenced;
(3) Lucas
clearly knows that the STORM SENTINEL products being advertised and sold by New Pig are
Enpac’s STORM SENTINEL products, and possessed that knowledge before communicating
with New Pig; and
(4) Lucas refuses to stop representing that such products infringe the ‘591
patent notwithstanding this Court’s prior order enjoining her from doing so. For these reasons,
Enpac respectfully submits that the Court should, in addition to such relief the Court deems
necessary and appropriate to ensure enforcement of its orders, require Lucas to reimburse Enpac
for the financial losses caused by her disregard for such Order, including attorney’s fees incurred
by Enpac to prepare the Motion and this Memorandum.
DATED this 14th day of March, 2012.
<redacted>
701 Fifth Avenue, Suite 4800
Seattle, Washington 98104

CERTIFICATE OF SERVICE
I certify that on March 14, 2012 a true copy of the foregoing was filed via the Court’s
ECF system, which will automatically forward a copy to the Defendant Chassidy Lucas.