Petition for Writ of Certiorari — Morris S. Glover, Petitioner v. Daniel E. Cohen, et al.

a claim the plaintiff has previously litigated and lost

against another [party]' in an earlier action." Ligato v.

Wells Fargo Bank, NA., Civ. No. 16-5683, 2018 WL

1141328, at “6 (E.D. Pa Mar. 2, 2018) (quoting

Parldane Hosiery Co., Inc. v. Shore, 489 U.S. 322,326

n.4 (1979)). "Defensive use promotes judicial economy

because the estoppel ‘precludes a plaintiff from

relitigating identical issues by merely switching

adversaries." Ligato, 2018 WL 1141328, at *6

(quoting Parklane Hosiery, 439 U.S. at 329).

"The prerequisites for the application of issue

preclusion are satisfied when: (1) the issue sought to

be precluded [is] the same as that involved in the

prior action; (2) that issue [was] actually litigated; (3)

it [was] determined by a final and valid judgment;

and (4) the determination [was] essential to the prior

judgment." Peloro v. United States, 488 F.3d 163, 174-

75 (8d Cir. 2007) (internal quotation marks and

citations omitted). Additionally, for defensive issue

preclusion to apply, "the party to be precluded must

have had a ‘full and fair' opportunity to litigate the

issue in the first action/' Id at 175 (citing Parklane

Hosiery, 439 U.S. at 328, 332). All of the prerequisites

for the application of issue preclusion are easily

satisfied here.

First, the issue sought to be precluded is the

same as that involved in the Prior Ohio Litigation -

in both instances, Plaintiff's claim that the Breathe

Right Dilator infringes his patents. As the district

court explained in the Prior Ohio Litigation,

"Plaintiff, Morris S. Glover, alleges in the complaint

that defendant, CNS, Inc.'s product, the Breathe

Right® device, infringes Design Patent No. 351,924

.. and Patent No. 5,466,456 ... owned by [Pllaintiff."

(Docket No. 32-7 at 8). Once again in this case,

Plaintiff asserts that the Breathe Right Dilator

A-4]

infringes the '924 Design Patent and the '456 Utility

Patent. (Docket No. 1 at 3-6).

Second, Plaintiff and CNS actually litigated

the issue of whether the Breathe Right Dilator

infringed the '924 Design Patent and the '456 Utility

Patent in the Prior Ohio Litigation. As Plaintiff

concedes in his Complaint, he "filed a lawsuit against

the companies in question in the Federal Court of

Cleveland, Ohio for infringement. The Defendants

filed for a Summary Judgment which the Court

granted." (Docket No. 1 at 6). In granting summary

judgment, the district court in the Prior Ohio

Litigation thoroughly addressed the issue of

infringement, ultimately finding that the Breathe

Right Dilator did not infringe the '924 Design Patent

because "there is no real resemblance between the

two designs" that would "deceive an ordinary

observer," and it did not infringe the '456 Utility

Patent because it "has none of the key elements of

claim | ." (Docket No. 32-7 at 8, 11-12). Therefore, the

issue of infringement was actually litigated because

it was resolved by the district court in the Prior Ohio

Litigation. See Hofmann v. Pressman Toy Corp., 198

F. App'x 121, 123 (8d Cir. 2006) (citing Mother's

Rest., Inc. v. Mama's Pizza, Inc., 723 F.2d 1566, 1570

(Fed. Cir. 1983)("An issue is ‘actually litigated’ if it

was disputed by the parties to the original action and

resolved by the trier of fact.")).

Third, the issue of non-infringement was

determined by a final and valid judgment.5 After

5 The Court notes that much of Plaintiffs Complaint in the

present case focuses on his apparent disagreement with the

district court's decision in the Prior Ohio Litigation granting

summary judgment in favor of CNS. To that end, Plaintiff

complains that the district court in the Prior Ohio Litigation

“made [his] patents invalid" and "ruled to invalidate [his]

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briefing was complete in the Prior Ohio Litigation, the

district court found in its reasoned opinion that CNS

"presented evidence supporting its noninfringement

motion and [P]laintiff [did] not proffer[] any evidence

that would raise a genuine issue of material fact on

noninfringement.... The Breathe Right® device is

completely distinct from [P]laintiff's facial cleanser."

(Docket No. 32-7 at 13). Given that determination,

patents" by granting summary judgment. (Docket No. 1 at 6, 7).

As previously noted, Plaintiff asks this Court to "declare the

Summary Judgment a void judgment ruling and to reinstate

(his] patents so that [he] can prove that he is the original owner

of the 'Nose Bridge’ idea and that Bruce C. Johnson and others

infringed upon his idea." (Id at 11). By these statements,

Plaintiff either misapprehends or chooses to ignore what

occurred in the 'Prior Ohio Litigation. There, the district court

granted summary judgment because it found that there was no

genuine issue of material fact on noninfringement, meaning the

district court determined that the Breathe Right Dilator did not

infringe the '924 Design Patent and the '456 Utility Patent. To

be clear, the district court ruled concerning noninfringement; it

did not "invalidate" the '924 Design Patent and the '456 Utility

Patent as Plaintiff now erroneously maintains. The patents

remained valid until they expired.

With regard to the patents’ expiration, as explained in

Defendants' briefing, the '924 Design Patent expired on October

25, 2008, and the '456 Utility Patent expired on November 14,

2012. (See Docket Nos. 32 at 12-13: 51 at 13). A patent can be

infringed only during the term of the patent, and the statute of

limitations for infringement extends up to six years after a

patent expires. See 35 U.S.C. §§ 271(a), 286. Therefore, even if

Plaintiffs patent infringement claim was not barred by issue

preclusion or was not otherwise deficient as explained herein,

Plaintiff cannot pursue an infringement claim on the '924

Design Patent or the '456 Utility Patent because they expired

and the statute of limitations on any associated claims have run.

See SCA Hygiene Prods. Aktieholag v. First Quality Baby Prods.,

LLC, 187 S.Ct. 954, 961 (2017) (a patent holder may recover

damages for infringement committed within the 6-year

limitations period).

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the district court granted CNS's motion for summary

judgment in the Prior Ohio Litigation, (see id), which

ig a final and valid judgment for issue preclusion

purposes. See Free Speech Coal., Inc. v. Attorney Gen.,

617 F.3d 519, 541 (3d Cir. 2012) (factors that courts

consider when determining whether a_ prior

determination was sufficiently firm to constitute a

final judgment include: whether the parties were fully

heard; whether a reasoned opinion was filed; and

whether that decision could have been, or actually

was, appealed); Prospect Funding Holdings, LCCu.

Breen, Civ. No. 2:17-CV-3328-KM-MAH, 2018 WL

734665, at *6 (D.NJ. Feb. 5, 2018) (concluding that

prior federal court ruling granting summary

judgment was a final and valid judgment for issue

preclusion purposes).

Fourth, the determination that the Breathe

Right Dilator did not infringe the '924 Design Patent

and the '456 Utility Patent was essential to the

judgment in the Prior Ohio Litigation, because

summary judgment could not have been granted in

favor of CNS if this issue had presented a "genuine

issue of material fact." See Hofmann, 173 F. App'x at

123 (citing Fed. R. Civ. P. 56(c)).

Finally, Plaintiff had a "full and fair

opportunity" to litigate his patent infringement claim

in the Prior Ohio Litigation. As explained in the

district court's decision, although Plaintiff contended

that summary judgment was premature and he

should have been allowed to obtain discovery, he had

adequate time to have done so. (Docket No. 32-7 at

4). Plaintiff filed his case in October 1995, CNS's

summary judgment motion was ripe for ruling in

February 1996, but the district court did not rule on it

until May 15, 1996. (Id at 3). Following the grant of

summary judgment in favor of CNS, Plaintiff pursued

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an appeal. See Hofmann, 193 F. App'x at 123 (finding

that pro se plaintiffs appeal of judgment in prior

litigation indicated that she had a full and fair

opportunity to litigate the issue for purposes of issue

preclusion). As Plaintiff had a "full and fair

opportunity" to litigate the issue of whether the

Breathe Right Dilator infringed the '924 Design

Patent and the '456 Utility Patent in the Prior Ohio

Litigation, he is precluded from raising it again here

over two decades later.

B. Plaintiff's Claims Otherwise Fail as a

Matter of Law.

Even if Plaintiffs patent infringement claim

was not barred by issue preclusion, that claim, and

all other claims he purports to assert in his

Complaint, fail as a matter of law.

To survive a Rule 12(bX6) motion to dismiss for

failure to state a claim, the well-pleaded factual

content in the complaint must allow "the court to

draw the reasonable inference that the defendant is

lable for the misconduct alleged," Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), and also "raise a right to

relief above the speculative level." Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (citation

omitted). When analyzing a motion to dismiss, the

factual allegations should be separated from

allegations that merely recite the legal elements of

the claim. Fowler v. UPMC Shadyside, 578 F.3d

203,210 (8d Cir. 2009). The well-pleaded facts are

accepted as true, but legal conclusions may be

disregarded. Id. at 210-11. Next, a determination is

made as to "whether the facts alleged in the

complaint are sufficient to show that the plaintiff has

a ‘plausible claim for relief." Jd. at 211 (quoting

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Iqbal, 556 U.S. at 679). This "plausibility"

determination is "a context-specific task that requires

the reviewing court to draw on its judicial experience

and common sense." Iqbal, 556 U.S. at 679.

Given that Plaintiff is proceeding pro se, the

Court liberally construes his Complaint and employs

less stringent standards than when judging the work

product of an attorney. Erickson v, Pardus, 551 U.S.

89, 94 (2007). However, there are limits to the Court's

procedural flexibility - "pro se litigants still must

allege sufficient facts in their complaints to support a

claim ... they cannot flout procedural rules - they

must abide by the same rules that apply to all other

litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d

239, 245 (3d Cir. 2018) (citations omitted).

1. Even if Plaintiff's Patent

Infringement Claim Was Not Barred

by Issue Preclusion, the Complaint

Fails to State a Plausible Claim for

Patent Infringement.

To plead a patent infringement claim, a

complaint must place the "potential infringer...on

notice of what activity..is being accused of

infringement." Nalco Co. v. Chem-Mod, LLC, 8838 F.3d

1337, 1350 (Fed. Cir. 2018). Regarding a utility

patent, "[t]o provide notice, a plaintiff must generally

do more than assert that the product infringes the

claim; it must show how the defendant plausibly

infringes by alleging some facts connecting the

allegedly infringing product to the claim elements."

Boston Sci. Corp. v. Nevro Corp., 415 F. Supp. 3d 482,

489 (D. Del. 2019) (emphasis in original) (citing

SIPCO, LLC v. Streetline, Inc., 230 F. Supp. 3d 351,

358 (D. Del. 2017) (granting a motion to dismiss an

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infringement claim because "[t]he complaint contains

no attempt to connect anything in the patent claims

to anything about any of the accused products")). As

to a design patent, a complaint must set forth a "basis

on which to reasonably infer that an ordinary

observer would confuse the pleaded patented designs

with the accused [product]." Colida v. Nokia, Inc., 341

F. App'x 568, 570 (Fed. Cir. 2009). Plaintiff's

conclusory allegations in his Complaint, which

primarily focus on his disagreement with the decision

in the Prior Ohio Litigation, satisfy none of these

requirements and therefore fail to state a claim for

infringement of the '924 Design Patent or the '456

Utility Patent, even if the patent infringement claim

was not barred by issue preclusion.

2. Plaintiff's Remaining Claims Fail to

State a Plausible Basis for Relief.

In addition to patent infringement, the cover

sheet of Plaintiff's Complaint lists “42 U.S.C. §§ 1983,

1985 and 1986,” “conspiracy for a summary judgment

making Plaintiffs patents invalid,” and “[djenial of

due process of law, VII Amendment to the

Constitution which renders a void judgment.” (See

Docket No. 1 at 1). Even applying the most liberal

construction possible to Plaintiffs Complaint, it fails

to specify which Defendants these claims are asserted

against, let alone contain allegations sufficient to

plausibly state a claim for relief under any of these

theories. Overall, it appears that Plaintiff's purported

claims stem from his dissatisfaction with the decision

granting summary judgment in favor of CNS in the

Prior Ohio Litigation, given his assertions that the

district court "functioned as a clairvoyant as to how a

jury would decide the case, a denial of [his] right to a

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trial by a jury," and that he was "denied due process

of law." (Docket No. 1 at 9, 10).

As an initial matter, 42 U.S.C. § 1983 does not

create any substantive rights, but rather provides a

remedy for deprivations of rights created by the

Constitution or federal law. See City of Oklahoma

City v. Tuttle, 471 U.S. 808, 816 (1985). "To state a

claim for relief in an action brought under § 1983, [a

plaintiff] must establish that [he was] deprived of a

right secured by the Constitution or laws of the

United States, and that the alleged deprivation was

committed under color of state law." American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

As the Court deciphers Plaintiffs Complaint, he

apparently alleges that the district court's grant of

summary judgment in favor of CNS in the Prior Ohio

Litigation somehow denied him due process and

violated his Seventh Amendment right to a jury trial,

which gives rise to a § 1983 claim. Plaintiff fails to

state a plausible claim for relief under § 1983,

however, because the Complaint does not contain any

factual allegations to suggest or infer that any of the

named Defendants are state actors or that they acted

under color of state law at any relevant time.§

6 Furthermore, Plaintiff claim that the district court's grant of

summary judgment in favor of CNS in the Prior Ohio Litigation

somehow denied him of his Seventh Amendment right to a jury

trial provides no basis for relief. As the Third Circuit Court of

Appeals has explained, "[iJt is well settled that summary

judgment, when properly granted, does not violate the Seventh

Amendment." McLoud v. Industrial Res., Inc., 715 F. App'x 115,

120 n.4 (3d Cir. 2017) (citing In re TMI Litig., 193 F3d 613, 725

(3d Cir. 1999)). There is no dispute that summary judgment was

properly granted in the Prior Ohio Litigation, given that the

Federal Circuit Court of Appeals affirmed the district court's

decision on appeal. Moreover, to the extent that Plaintiff claims

that unspecified individuals "“conspir[ed] for a summary

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Plaintiffs bald, unsupported assertions in his

Responses that Defendants were operating under

color of law does not overcome this deficiency. (See

Docket Nos. 53 at 3, 94 5, 9; 55 at 1). Additionally,

any § 1983 claim is time-barred because the

applicable two-year statute of limitations has run.”

Finally, although Plaintiff lists 42 U.S.C. §

1985 on the cover sheet of his Complaint, even when

liberally construed in the light most favorable to him,

the Complaint alleges none of the required elements

to state a claim for conspiracy to interfere with his

civil rights against any of the Defendants. See United

Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S.

825, 828-29 (1983) (listing elements of § 1985 claim as

judgment making Plaintiff's patents invalid," (see Docket No. 1

at 1), he has failed to allege any plausible basis for relief based

on this unsupported and inaccurate assertion. As explained, the

district court's grant of summary judgment- in favor of CNS in

the Prior Ohio Litigation did not invalidate Plaintiffs patents.

See supra n.b.

7 The statute of limitations for a § 1983 claim is governed by the

personal injury tort law of the state where the cause of action

arose. Wallace v. Kato, 549 U.S. 384,387 (2007). It appears that

Plaintiffs purported claims arise from the Prior Ohio Litigation,

therefore Ohio law would apply. "The statute of limitations for

a§ 1983 claim arising in Ohio is two years." Ruffin v. Kudley,

2019 WL 2059605, at *2 (N.D. Ohio May 9, 2019). Even if

Pennsylvania law would apply, the statute of limitations also is

two years. See Kach v. Hose, 589 F3d 626,634 (8d Cir. 2009)

("The statute of limitations for a § 1983 claim arising in

Pennsylvania is two years."). The conduct Plaintiff complains of

in his Complaint leading up to and culminating in the Prior

Ohio Litigation occurred in the late 1980's and into the 1990's,

and concluded when the Federal Circuit Court of Appeals

affirmed the district court's decision on April 7, 1997. Any

claims arising out of the Prior Ohio Litigation would have

accrued on or about that time. Thus, the two-year statute of

limitations for any§ 1983 claim arising from the Prior Ohio

Litigation has long since run.

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"(]) a conspiracy; (2) for the purpose of depriving,

either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal

privileges and immunities under the laws; and (3) an

act in furtherance of the conspiracy; (4) whereby a

person is injured in his person or property or deprived

of any right or privilege of a citizen of the United

States."). Because a sufficiently pied claim under §

1985 is a prerequisite to a § 1986 claim for failure to

prevent a conspiracy, Plaintiffs listed § 1986 claim

likewise fails. See Clark v. Clabaugh, 20 F.3d 1290,

1295 (3d Cir. 1994) ("[T]ransgressions of § 1986 by

definition depend on a preexisting violation of §

1985."). Furthermore, any claim under § 1985 or §

1986 is time-barred because the applicable statute of

limitations has run.®

3. Curative Amendment is Not

Warranted.

The Court must allow amendment by the

plaintiff in a civil rights case brought under § 1983

before dismissing pursuant to Rule 12(b)(6),

irrespective of whether it is requested, unless doing

so would be "inequitable or futile." Fletcher-Harlee

Corp. v. Pote Concrete Contractors, Inc., 482 F.3d

247, 251 (3d Cir. 2007); see also Alston v. Parker, 363

F.3d 229, 235 (3d Cir. 2004) (where a complaint is

§ There is a two-year statute of limitations for a § 1985 claim

under both Ohio and Pennsylvania law, see Dotson v. Lane,

360F. App'x 617, 619n.2 (6th Cir. 2010); Garland v. US Airways

Inc., 270 F. App'x 99, 108 (8d Cir. 2008), and a one-year statute

of limitations for a § 1986 claim. See 42 U.S.C. § 1986 ("[N]o

action under the provisions of this section shall be sustained

which is not commenced within one year after the cause of

action has accrued."),

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vulnerable to dismissal pursuant to Rule 12(b)(6),

the district court must offer the opportunity to

amend unless it would be inequitable or futile).

Though cognizant of these holdings, the Court finds

that allowing Plaintiff to amend his Complaint would

be futile as to all claims for the reasons discussed

herein. As such, dismissal of Plaintiff's Complaint

with prejudice is warranted.

IV. CONCLUSION

For the reasons set forth above, the Motion to

Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) filed by Defendant Suzanne Kameese

(Docket No. 27), Defendants Bruce C. Johnson and

Creative Integration & Design, Inc. (Docket No. 31),

and Defendant Daniel E. Cohen (Docket No. 50),

each are GRANTED and Plaintiffs Complaint is

DISMISSED in its entirety as to all Defendants Willi

PREJUDICE.

An appropriate order follows.

Date: February 19,2021 s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record

Morris 8. Glover (via U.S. mail)

6361 Stonehaven Lane

Bedford Heights, OH 44146

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

MORRIS S. GLOVER,

Plaintiff,

Civil Action

No. 19-734

V.

)

)

)

)

DANIELE. COHEN, BRUCE C. )

JOHNSON, SUZANNE KAMEESE, _)

LOWELL FRENCH and CREATIVE)

INTEGRATION & DESIGN, INC., )

Defendants. )

ORDER OF COURT

AND NOW, this 19th day of February, 2021, in

accordance with the foregoing Memorandum Opinion,

IT IS HEREBY ORDERED that the Motion to

Dismiss filed by Defendant Suzanne Kameese

(Docket No. 27), Defendants Bruce C. Johnson and

Creative Integration & Design, Inc. (Docket No. 31),

and Defendant Daniel E. Cohen (Docket No. 50) each

are GRANTED;

IT IS FURTHER ORDERED that Plaintiff's

Complaint (Docket No. 1) is DISMISSED in its

entirety as to all Defendants WITH PREJUDICE;

and

IT IS FURTHER ORDERED that the Clerk of

Court shall mark this case CLOSED.

s/

W. Scott Hardy

United States District Judge

cec/ecf: All counsel of record

A-52

Morris S. Glover (via U.S. mail)

6361 Stonehaven Lane

Bedford Heights, OH 44146

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

MORRIS S. GLOVER, )

Plaintiff, )

Vv. ) Civil Action

) No. 2:19-ev-

) 00734-RJC

DANIEL E. COHEN, BRUCE C. )

JOHNSON, SUZANNE KAMEESE, ) AFFIDAVIT

LOWELL FRENCH and CREATIVE ) OF JOSEPH

INTEGRATION & DESIGN, INC., ) SPRAGNER

Defendants. )

)

U.S. EXPRESS

MAIL NO.:

EJ215503733US.

State of Ohio )

) SS

Cuyahoga County )

Being first duly sworn and cautioned, Affiant

Joseph Spragner, deposes and states as follows:

1. I am the Plaintiffs witness in the abovecaptioned action, and make this Affidavit based upon

my first-hand knowledge of the facts set forth herein.

2. I was a witness at Mr. Glover first and only

case management conference in the winter of January

17, 1996.

3. At that day and time in the conference I

witnessed that the Judge Matia and the defendant

was not present at the time of the meeting on

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January 17, 1996 at all.

4. I also witnessed that Mr. Glover did not

see Mr. Cohen in person but only talk to him on the

intercom. In the Judge office we wonder why?

5. I also witnessed that something was not

right at all with this meeting because the defendant

and the judge was not present at the time. On

January 17, 1996.

6. I also witnessed that the man in the

judge’s office stated to Mr. Glover and the defendant

that the next meeting will be held on May 15, 1996.

7. Ialso witnessed that on May 15, 1996 the

judge granted CNS, INC.’s Motion for Summary

Judgment without looking at the evidence of Mr.

Glover. And the defendant did not show a date of

conception to the plaintiff Mr. Glover, or the court in

Cleveland, Ohio, at that day and time.

FURTHER AFFIANT SAYETH NAUGHT.

s/

Joseph Spragner, Witness

SWORN TO AND SUBSCRIBED in my presence

this 17 day of June, 2020.

s/

Stephanie Weigel

Notary Public, State of Ohio

My Comm. Expires January 15,

2023

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