Court denies competing motions to strike and dismiss
Southco, Inc. v. Penn Engineering & Manufacturing Corp., et al., C. A. No. 10-03-LPS, March 7, 2011.
Stark, J. Plaintiff’s Motion to Strike and Dismiss is denied. Defendant’s Motion to Strike and Motion to Dismiss Plaintiff’s Counterclaims is denied as well as their Motion to Strike Plaintiff’s Reply Brief. Plaintiff is granted leave to file a Surreply.
Pending before the Court are three motions: (1) plaintiff’s motion to strike and dismiss (2) defendant’s motion to strike and motion to dismiss plaintiff’s counterclaims; and (3) defendant’s motion to strike plaintiff’s reply brief or alternatively grant leave for a surreply Defendant requests that the Court strike plaintiff’s reply brief in support of its motion to strike and dismiss on the grounds that the reply brief improperly raises new arguments that were not raised in the initial motion. The Court finds that the reply reiterates three arguments, all of which were introduced in the opening brief. Therefore the motion to strike is denied. However, the parties are permitted to file additional briefing. Plaintiff’s motion to dismiss and strike is denied as defendant has adequately pled its inequitable conduct affirmative defense and counterclaim by identifying the "who, what, when, and where" of the alleged misrepresentations as well as the effect of the misleading statements. As for defendant’s motion to dismiss and strike plaintiff’s counterclaims, plaintiff alleges that defendant made material misrepresentations concerning the acquired distinctiveness of its mark. The Court concludes that, at this point, plaintiff has sufficiently pled material misrepresentations for purposes of stating a claim of fraud on the PTO in procurement of a trademark.
