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1
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PLAINTIFFS OPPOSITION TO MOTIONS 1
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EXTRACTED KEY WORDS
LEMELSON ASSIGNMENT AGREEMENT DEFENDANTS NEV JERSEY LAW PATENTS INVENTIONS MOTIONS DISMISS STANDARDS DEPARTMENT NEVADA ENFORCEABILITY PLAINTIFF MERF PATENT APPLICATIONS CARTERET COMPLEX COMPLAINT UNITED STATES ANDREAGGI EMPLOYMENT INGERSOLL-RAND INNOVATION ENGINEERS BUNNELL PLASTICS ASSIGNMENT CONTRACT NEVADA STATE BAR OPPOSITION LEMELSON CONCEALS CONSTRUCTIVE TRUST |
.- -.
/ 1 Code 2645
William A.S. Magrath II
2 Nevada State Bar No. 1490
McDonald Carano Wilson McCune
3 Bergin Frankovich & Hicks LLP
241 Ridge St., 4* Floor
4 P.O. Box 2570
Reno, Nevada 89505-2670
5 Telephone: (775 788-2000
Facsimile:
~ r/s] 788-2020
6 Attome s for P amtlff UNITED STATES
MET S REFMING COMPANY
7
8 IN THE SECOND JUDICIAL DISTRKT COURT OF THE STATE
9 IN AND FOR THE COUNTY OF WASHOE
10 UNITED STATES METALS REFINING
COMPANY, a Delaware Corporation,
11 Plaintiff, Case
12
13 Dept.
14
15
16
17
18
19
20
21 Defendants. /
22
23
N-TIFF UNITED STATES METALS REFINING
OPPOSITION TO MOTIONS TO DISMISS
24
25 Plaintiff United States Metals Refining Company
26 Opposition to various motions to dismiss filed by Defendantspursuantto
27 Rules of Civil Procedure and would respectfully show as follows:
28
,
1 TABLE OF CONTENTS
2
3 1. SUMMARY OF THE ARGUMENT
.2
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2
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MOTION TO DIMISS OF DEFENDANTS
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EXTRACTED KEY WORDS
DOROTHY DEFENDANTS LLC FUND PLAINTIFF ALLEGED CONTRACT PATENTS INVENTIONS LIMITED PARTNERSHIP LIP COMPLAINT USMR STATE BAR ESTATE NEVADA LIMITED PARTNERSHIP LMERF FAMILY LIMITED PARTNERSHIP ALLEGED BREACH CONSTRUCTIVE TRUST ALLEGATIONS ORIGINAL USMR OBLIGATIONS DOROTHY LEMELSON FUXD COMPLAINT FAILS DOCTRINE CONFIDENTIAL RELATIONSHIP JONES VARGAS JEROME TRANSFEREE |
1 2315
ALBERT F. PAGNI, ESQ.
2 State Bar No. 987
-MELISSA P. BARNARD, ESQ.
3 State Bar No. 49 16
CARLA R. JONES, ESQ.
4 State Bar No. 6363
JONES VARGAS
5 100 W. Liberty St, 12th Floor
P.O. Box 281
6 Rena, NV 89504
f775) 76%NO0
7 Attomeysfor Defendants
8 The Lenvslson Investment Family Limited Partnership
and Dorothy Lemelson
9 JULIEN G. SOURmy, ESQ.
10 State Bar No. 422
MORTIMER, SOURWINE & SLOANE. LTD
11 4950 Kietzke Lane, Suite 302
Reno, Nevada 89509
12 Attorneysfor Defendant
13 Dorothy Lemeison Fund, LLC
14
15 W THE SECOND mICIAL DISTRICT COURT OF THE STATE OF NEVADA
16 IN AND FOR THE COUNTY OF WASHOE
17
18 UNITED STATES METALS REFmTNG CASE NO. CV 99-022 16
COMPANY, a Delaware Corporation,
19 DEPT. NO. 1
Plaintiff.
20
21 LEMELSON MEDICAL, EDUCATION &
22 RESEARCH FOUNDATION, LIlMITED
PARTNERSHIP, a Nevada Limited Partnership;
23 LEMELSON EDUCATIONAL & RESEARCH
CORPOR4TION, a Nevada Corporation, THE
24 LEMELSON INVESTMENT FAMILY LIMITED
PARTNERSHIP; a Nevada Limited Partnership;
25 DOROTHY LEMELSON; DOROTHY
LEMELSON FUND, LLC, THE ESTATE OF
26 JEROME H. LEMELSON; and DOES l-50;
27 Defendants.
28
1 MOTION TO DISMISS OF DEFENDANTS DOROTHY
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3
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COMPLAINT
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EXTRACTED KEY WORDS
USMR LEMELSON PATENTS MOTOR APPLICATIONS NEVADA COPPER MERF EMPLOYMENT METALS AGREEMENT ASSIGNMENT LICENSE PARTNER DEFENDANTS MANUFACTURING BUSINESS GENERAI OBTAINING OBLIGATIONS WASHOE COUNTY ENFORCE REFINING SPECIALTY CARTERET COMPLEX MATERIALS FURNACES ENGINEERS AMERICAN |
RUG-17-1399 13:26 LRhl OFF 1 CES
P. 02/35
~~99-02Z!b
:ase NO..
3ept. No \
e
IN THE SECOND JUDICIAL DISTRICT
,
IN AND FOR THE COUNTY
JNITED STATES METALS REFINING
COMPANY, a Delaware Corporation.
Plaintiff,
Defendants.
Plaintiff UNITE0 STATES METALS REFINING
a Delaware
corporation. by its attorneys, William A. S. Magrath
the law firm
of McDonald Cafano Wilson McCune Bergin
nt
against Defendants LEMELSON MEDICAL,
ION.
LIMITED PARTNERSHIP (`MERF"). a Nevada
LEMELSON
EDUCATIONAL & RESEARCH CORPORAYlON
icn.THE
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4
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ADDITIONAL POINTS AND AUTHORITIES
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EXTRACTED KEY WORDS
NRS EXHIBIT CONTRACT PROBATE RENO BAR FILING PROBATE PROCEEDING DECEDENT MORRIS JEROME LEMELSON BOSTON HERALD ARIZONA BUSINESS GAZETTE USMR NEVADA STATUTES CREDITORS COURT NATURE CLERK MAILIN LRST RESIDENT CLAIMANTS NEV LEGISLATURE ARD ASSEMBLY BILL |
2290
Reno, NV 89504
Phone (775) 322-7777
Steve Morris (Bar #1543)
Schreck Morris
1200 Bank of America Plaza
300 South Fourth Street
Las Vegas, NV 89101
Phone (702) 382-2101
Attorne s for Defendant
Estate o f Jerome H. Lemelson
IN THE SECOND JUDICIAL DISTRICT COURT'OF THE STATE
IN AND FOR THE COUNTY OF WASHOE
UNITED STATES METALS REFINING
COMPANY, a Delaware Corporation,
Case No.
Plaintiff, Dept. No. 1
VS.
LEMELSON MEDICAL, EDUCATION &
RESEARCH FOUNDATION, LIMITED
PARTNERSHIP, et al.,
Defendants.
ADDITIONAL POINTS AND AUTHORITIES IN SUPPORT
MOTION TO DISMISS OF ESTATE OF TEROME H. LEMELSON
ORAL ARGUMENT REQUESTED
Estate of Jerome I-I. Lemelson ("Estate") submits these additional
authorities in support of its motion to dismiss filed with the Lemelson Medical
Education & Research Foundation, Limited Partnership
Lemelson Educational & Research Corporation ("LERC"), which
arguments common to those parties. These points and authorities
separate from the core motion because they set forth arguments
Estate. As it does with the core motion, the Estate requests oral argument in
1 connection with these additional points and authorities under WDCR 12.
2 SCHRECK MORRIS
3
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5
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ORDER GRANTING MOTION TO DISMISS
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EXTRACTED KEY WORDS
HEIRS JUDGMENK DISTRITI FIRST AMSNDED COMPLAINT PATENT APPIICATIONS FIICD FALLWE DUTY DISCLOSE HI9 HEIRS DEFEND CLRRIMS YTM PALAIR FEDERAL DISTRITI CBM DISTRITI CBM AFFIRWD RWIOUS RULING SUMMARY JUDGMENT TIE ESTATE UNDERMINE FOSTERING CREATIVITY INVERHNS TECHNOLOGICAL IMPROVMTNT |
Receive@: 06.Jul.00 12:17 PM From: 4809483387 To: 2087235829 Powered
JUL-86-208@ 18:34 LRW OFFICES 4 8 8
1
2
3
4
cd
c m THE s~Coj?D JIJYXCiAL BIS?`Rl[CT CQURT OF THE STATE OF M3MDA
7 M AND FOR THE CQUPITY OF WASHOE
t
I
11:
u Pkinti ffs
II VS. case No. V93-02216
13 Dept. rJ0. I
14
13
1t
17
18
14
2c efcnchnts,
21 /
22
23 Plaintiff, United States Metal Refining Company (hcrcinafkr "USMR")
24 April 23, 1999. USMR then filed a First Amsnded Complaint on January 14, 2N?0.
2s LEbfEtSON NEDICAL EDtlC SEARCH FOUNDATION,
26 PARTNE & R..E$EARCK c8
27
28
Received: 06. Jul.00 12:17 PM From: 4809483387 To: 2087235829 Powered by &Fax.com
JUL-86-288E1 18: 3 4 LQW OFFICES 4 8 8 9 4 8 3 3 8 7
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7
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EXHIBIT A - PLAINTIFFS OPPOSITION TO MOTIONS 2
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EXTRACTED KEY WORDS
RULI RORCE AGREEMENT |
AGRFPIENT
Ifl CONSIDERATION of GUY employment and the compensation
w services during the term of nry employment
REFDUNQ COMPANY, a corporation of New Jersey,
place of business at Carteret, geu Jersey,
`Corporation"), a subsidiary of The American Metal Company,
a corporation of New York, having a principal
61 Broadway, New York, NeN York, (hereinafter
-
pany"), upon the terms and conditions of this
Of
agree w%th the Corpo6ation as follows:
., _.~
1. To communicate promptly and fully
tion and, upon request, to assign to it, or to
so directed by the Corporation, all my right,
and
to any and all inventions and improvements
ceived or may hereafter make or conceive, or
may be a joint Inventor, while in the employ of the
ch
are within the scope of my employment or which
or may be useful in connection with the then existing
natural expansion of the business cerried,on
parent company, subsidiaries or affiliates and
and interest In and to any and all domestic
ror patents covering said inventions, sny and all
or
said lnve+l~na and any snd all reiSsu?s and
patents; and to do any and all acts snd to execute and deliver
instruments as may be deemed by the.Corporation
to
vest all of my right, title and interest in and
applications and patents in the Corporation,
So directed by the Co oration, aad to erfect
patints, reissues and or
7 extensiona thereof.
expenses in connection nith the Soregoing
tion.
2. I further agree that I nil1 regard
all information of a cotiidential character
tlonls business that may be obtained by me from
blueprints, reproductions , apparatus and other
a result of such employment and I ulll not without
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8
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MOTION TO DISMISS OF ESTATE
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EXTRACTED KEY WORDS
AGREEMENT INVENTIONS PLAINTIFF USMR DEFENDANT FORM AGREEMENT BUSINESS ALLEGE EMPLOYEE PATENTS COMPLAINT EMPLOYER SMELTING PLANT SUCCESSOR COURT UNITED STATES ASSIGNMENT AGREEMENTS PARAGRAPH EDUCATION UNITED STATES METALS SMELTING COMPANY LIMITED PARTNERSHIP RESEARCH CORPORATION EMPLOYMENT ALLEGATIONS ATTORNEYS AFFILIATES LEGITIMATE STATES METALS REFINING |
2290
Steve Morris (Bar #1543)
AM Morgan (Bar #933)
Schreck Monis
100 W. Liberty, Ste. 940
P.O. Box 41118
Reno, NV 89504
Phone (775) 322-7777
Attorneys for Defendant Estate
of Jerome H. Lemelson
Albert F. Pagni (Bar #987)
Jones Vargas
100 W. Liberty Street, 12" Floor
P.O. Box 281
Rena, NV 89504
Phone (775) 786-5000
Attorneys for Defendants Dorothy
Lemelsoy, The Lemelson Investment
Family Llmited Partnership, and Lemelson
Educational & Research Corporation
Suellen Fulstone (Bar #4993)
Woodburn and Wedge
6100 Neil Road, Suite 500
Rena, NV 895 11
Phone (775) 688-3007
Gerald Hosier (Bar #5023)
P.O. Box 12354
Aspen, CO 81612
Phone (970) 920-3475
Attorneys for Defendant Lemelson
Medical, Education & Research
Foundation, Limited Partnership
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR THE COUNTY OF WASHOE
UNITED STATES METALS REFINING
COMPANY, a Delaware Corporation, Case No. CV99-02216
Plaintiff, Dept. No. 1
VS.
LEMELSON MEDICAL, EDUCATION &
RESEARCH FOUNDATION, LIMITED
PARTNERSHIP, et al.,
Defendants.
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9
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PLAINTIFFS OPPOSITION TO MOTIONS 2
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EXTRACTED KEY WORDS
NEVADA COURT PATENT USMR DEFENDANTS FRAUDULENT PLAINTIFF USMR INVENTIONS LEMELSON SUPP PATENT APPLICATIONS CIR ASSIGNMENT AGREEMENT CONSTRUCTIVE TRUST STATUTE MERF PARTNERSHIP CONVERSION FRAUDULENT CONCEALMENT LIMITATIONS DISTRICT COURT SUPREME COURT JERSEY LAW ALLEGATIONS DISCOVERY RULE INTERFERENCE PROSPECTIVE CONTRACTUALRELATIONSHIPSWITH THIRD PARTIES EMPLOYMENT |
I
1 Hyde, 290 F.2d 560, 561 (9th Cir. 1961), cert. denied, 368 U.S. 959 (1x2)
2 statute to impute knowledge and liability to partnership for fraudulent
3 The Nevada statute codifies longstanding law charging a partnership with
4 its partners. As the United States District Court in Nevada recently explained in
5 v. U.S., NO. CV-N-97-508.ECR(RAM), 1999 WL 691869, at *3 (D. Nev.
6 partnership cannot be regarded as an entity independent of the persons who compose
7 Beaty and Hemenway composed Haven Home LP, the partnership is not an independent
8 the actual knowledge of Beaty and Hemenway of the tax lien is imputed to the
9 Home LP." (emphasis added) (citations omitted) (citing Watson v. G. C. Assoc. Ltd.
10 P.2d 417, 419 (Nev. 1984)); see also FSLIC V. Fielding, 343 F. Supp. 537, 544 (D.
11 (knowledge of one partner is imputed to all other partners); Friendv. Friend& Co., 4
12 (9th Cir. 1969) rWel1 established concepts of partnership doctrine impute the
13 of one partner to all others.") (citationsomitted). Similarly,MERF cannot be
14 of Lemelson, its founder and general partner. Lemelson's actual knowledge of the
15 Agreement and the obligations under that contract are imputed to MERF. Am. Compl.
16 result, at the time of the assignment, MERF knowingly assumed Lemelson's obligations
17 under the Assignment Agreement,
18 3. Because of its Knowled e of the Assignment Agreement,
Equitable Defenses to U s MR's Claims.
19
20 Since the knowledge of Lemelson, as MERP's general partner, is imputed
21 common law to MERF, MERF cannot avail itself of any supposed equitable defense to
22 under the Assignment Agreement to request an assignment of the USMR Inventions,
23 Patent Applications. MERF is foreclosed from asserting any defense otherwise available
24 fide assignee of rights in a patent because, at the time of the as.signment,MERF
25 Inventions, Patents, and Patent Applications were encumbered by the Assignment
26 5 87.120. Because MERF was on notice, courts unanimously proscribe any alleged
27 to USMR's claim. See, e.g., Heidelberg Harris, Inc. V. Loebach, 14.5 F.3d 1454, 1458
28 1998) (notice of claim to title of patents forecloses bona tide purchaser defense);
27
. .
I
1 Al~ied-SignaL Inc., 939 F.2d 1568, 1573 (Fed. Cir. 1991) (same); W&n v.
2 1996 WL 735576 0J.D. 111. Dec. 17,1996) (same); Taylor Engines, Inc. v. All
3 F.2d 17 1, 174 (9th Cir. 195 1) (same). Neither law nor equity shields
4 breaches of the duties it owes to USMR under the Assignment Agieement.
5 D. Plaintiff Has Sufficiently Alleged that MERF
Agreement.
6 1. MERF Breached its Duty to Disclose the
7 Patent Applications to USMR
8 The Assignment Agreement, which is binding on MERF as Lemelson's
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