in Re Aim Sports, Inc., Guoping Cui An Individual Also Known As George Cui , Ying… v. U. S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309 1989

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE AIM SPORTS, INC., GUOPING CUI (AN
INDIVIDUAL ALSO KNOWN AS GEORGE CUI),
YING CUI (AN INDIVIDUAL ALSO KNOWN AS
AMBER CUI), SHANDONG INTERNATIONAL
ECONOMIC & TECHNICAL DEVELOPMENT CO.,
LTD., AND COMBAT OPTICAL, INC.,
Petitioners.

Miscellaneous Docket No. 999

On Petition for Writ of Mandamus to the United
States District Court for the Central District of California
in case no. 10-CV-03814, Honorable Philip S. Gutierrez.

Before RADER, Chief Judge, DYK and O'MALLEY, Circuit
Judges.

O'MALLEY, Circuit Judge.

ORDER

The petitioners seek a writ of mandamus directing the
United States District Court for the Central District of
California to vacate its August 23, 2011 order granting
monetary and evidentiary sanctions against the petition-
ers.

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This petition arises out of a suit filed by Carson
Chang and New Century Sci & Tech, Inc. (Chang) against
the petitioners for patent infringement, unfair competi-
tion, and breach of fiduciary duty. In March of 2011, the
parties moved to compel the production of various docu-
ments. Insofar as relevant here, Chang's motion sought
to compel discovery of the petitioners' mechanical draw-
ings and engineering documents relating to the design
and manufacturing of the accused products, sales infor-
mation, and other financial documents.

The Magistrate Judge granted-in-part and denied-in-
part each motion to compel. The Magistrate also ordered
the petitioners to produce all responsive documents along
with a declaration signed under penalty of perjury that all
nonprivileged documents in their possession, custody or
control had been produced.

In July of 2011, Chang again filed a motion to compel
production of documents, which was granted the following
month by the Magistrate. According to Chang, during
subsequent depositions, multiple witnesses revealed that
the petitioners withheld the production of requested
documents and that the declaration submitted under
penalty of perjury was false. The Magistrate ordered the
petitioners to turn over responsive documents or file a
declaration, signed under penalty of perjury, attesting
that they have turned over all responsive documents.

After the petitioners failed to do so, Chang filed a mo-
tion seeking both monetary sanctions for attorney fees
and evidentiary sanctions. On August 23, 2011, the
district court granted in part Chang's motion for mone-
tary and evidentiary sanctions against the petitioners.
With respect to the evidentiary sanctions, the district
court order prevented the petitioners from introducing
any evidence contradicting Chang's damages expert as to
the issue of sales information and prevented the petition-
ers from introducing any evidence contradicting Chang's

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technical expert based on the petitioners withholding of
design and engineering documents.

The petitioners now seek a writ of mandamus. The
remedy of mandamus is available only in extraordinary
situations to correct a clear abuse of discretion or usurpa-
tion of judicial power. In re Calmar, Inc., 854 F.2d 461, 464
(Fed. Cir. 1988). A party seeking a writ bears the burden of
proving that it has no other means of attaining the relief
desired, Mallard v. U. S. Dist. Court for S. Dist. of Iowa,
490 U.S. 296, 309 (1989), and that the right to issuance of
the writ is "clear and indisputable," Allied Chemical Corp.
v. Daiflon, Inc., 449 U.S. 33, 35 (1980). "That a petitioner
may suffer hardship, inconvenience, or an unusually
complex trial does not provide a basis for a court to grant
mandamus." In re Roche Molecular Sys., Inc., 516 F.3d
1003, 1004 (Fed. Cir. 2008) (citing United States v. Wat-
son, 603 F.2d 192, 195 (C.C.P.A. 1979)). This exacting
standard has not been met here. The petitioners can
obtain adequate and meaningful relief of the sanctions
order on appeal after final judgment. Thus, the court
determines that the petitioners have not met their burden
to obtain a writ of mandamus.

Accordingly,

IT IS ORDERED THAT:

(1) The petition is denied.

(2) Any pending motions are denied.

FOR THE COURT

NOV 14 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
NOV 14 2011

JAN HORBALY
CLERK

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IN RE AIM SPORTS

cc: Norbert Stahl, Esq.
Boris Zelkind, Esq.
Clerk, United States District Court for the Central
District of California

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