Crocs, Inc. v. Effervescent, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 06-cv-00605-PAB-KMT
(Consolidated with Civil Action No. 16-cv-02004-PAB-KMT)
Civil Action No. 06-cv-00605-PAB-KMT
CROCS, INC.,
Plaintiff,
v.
EFFERVESCENT, INC.,
HOLEY SOLES HOLDINGS, LTD.,
DOUBLE DIAMOND DISTRIBUTION, LTD., and
U.S.A. DAWGS, INC.,
Defendants.
Civil Action No. 16-cv-02004-PAB-KMT
U.S.A. DAWGS, INC. and
DOUBLE DIAMOND DISTRIBUTION, LTD.,
Plaintiffs,
v.
RONALD SNYDER,
DANIEL HART,
THOMAS J. SMACH,
ANDREW REES,
GREGG RIBATT,
ANDREW REDDYHOFF,
GEORGE B. BOEDECKER, JR.,
LYNDON HANSON,
DONALD LOCOCO,
RAYMOND CROGHAN,
RONALD FRASCH,
MICHAEL MARGOLIS,
JEFFREY LASHER,
MICHAEL E. MARKS,
PRAKASH MELWANI,
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JOHN P. MCCARVEL,
ERIK REBICH,
SARA HOVERSTOCK, and
JOHN AND JANE DOE DEFENDANTS 1-30,
Defendants.
ORDER
This matter is before the Court on Plaintiff Crocs, Inc.’s Request to File Short
Surreply in Support of Crocs’s Responsive Claim Construction Brief [Docket No. 413].
On November 22, 2016, Defendants U.S.A. Dawgs, Inc. and Double Diamond
Distribution, Ltd. (collectively “Dawgs”) filed their opening claim construction brief.
Docket No. 312. On December 13, 2016, Crocs, Inc. (“Crocs”) filed its responsive claim
construction brief. Docket No. 343. On January 9, 2017, Dawgs filed its reply brief.
Docket No. 401. Crocs requests leave to file a short surreply. Docket No. 413.
Crocs argues that a surreply is necessary because Dawgs’ reply brief cites to
previously undisclosed evidence. Id. Crocs first complains about Dawgs’ citation to the
“Decision of the Third Board of Appeal of 26 March 2010” of the European Union
Intellectual Property Office, a copy of which is attached as Exhibit B to its reply. Docket
Nos. 413-3 at 2; 401 at 10. Crocs argues that Dawgs did not disclose this authority in
the parties’ joint claim construction statement or discuss it in its opening brief. Docket
No. 413 at 1. The citation to the decision of the Third Board of Appeal is a citation to
legal authority in response to an argument raised by Crocs. See Docket No. 401 at 10.
Dawgs does not claim that the decision has any binding effect on Crocs. Id. The Court
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finds that Dawgs’ citation to this decision does not justify the submission of a surreply.
Crocs further objects to Dawgs’ “material misrepresentations” regarding “new
evidence.” Docket No. 413 at 1. Apparently Crocs is referring to Dawgs’ discussion of
the testimony of Crocs’ expert, Ian Whatley. See Docket No. 413-3 at 4-6. Crocs fails
to describe how references to the deposition of Crocs’ expert constitutes improper new
evidence1 or would provide justification for leave to file a surreply. Accordingly it is
ORDERED that Plaintiff Crocs, Inc.’s Request to File Short Surreply in Support
of Crocs’s Responsive Claim Construction Brief [Docket No. 413] is denied.
DATED February 14, 2017.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
1Dawgs’ unopposed motion for an extension of time to file its reply claim
construction brief requested more time specifically in order to depose Crocs’ expert.
Docket No. 357. The magistrate judge granted that request. Docket No. 361.
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