from the United States District Court for the District of
Kansas (D.C. No. 2:14-CV-02262-CM)
F.B. Daniels of McDowell, Rice, Smith & Buchanan, P.C.,
Kansas City, Missouri, for Plaintiff - Appellant.
Stephen M. Schaetzel, of Meunier, Carlin & Curfman, LLC,
Atlanta, Georgia (and David S. Moreland of Meunier, Carlin
& Curfman, LLC, Atlanta, Georgia; Dan C. Sanders of
Monaco, Sanders, Racine & Powell, L.L.C., Leawood,
Kansas, with him on the brief), for Defendant - Appellee.
LUCERO, KELLY, and MATHESON, Circuit Judges.
Digital Ally, Inc. appeals from the district court's
grant of summary judgment in favor of Defendant-Appellee
Utility Associates, Inc. Digital Ally, Inc. v.
Utility Assocs., Inc., No. 2:14-cv-02262-CM, 2017 WL
1197561 (D. Kan. Mar. 30, 2017). Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
case concerns two companies who sell in-car video and
surveillance systems. Defendant-Appellee, Utility Associates,
Inc. (Utility), owns U.S. Patent No. 6, 381, 556 (the
'556 patent). Utility purchased the patent and other
assets in January 2013 from a supplier of in-car mobile
surveillance systems. Utility and its CEO, Robert McKeeman,
believed that the '556 patent was potentially valuable
and covered existing systems already in commerce. Thereafter,
Utility sent letters to potential customers (who were at that
time customers of competitors), including Plaintiff-Appellant
Digital Ally, Inc. (Digital Ally), regarding the consequences
of purchasing unlicensed and infringing systems. It urged
customers to instead purchase systems from Utility because it
now owned the '556 patent.
October 2013, Digital Ally sought a declaratory judgment of
non-infringement in Kansas federal district court, but the
suit was dismissed for lack of personal jurisdiction over
Utility. In May 2013, Digital Ally filed a petition for inter
partes review with the Patent Trial and Appeal Board (PTAB)
to determine the validity of all claims on the '556
patent. The PTAB instituted a review of Claims 1- 7 and 9-25
and determined that Claims 1-7, 9, 10, and 12-25 were
unpatentable, and that Claim 11 was not shown to be
unpatentable. I Aplee. Supp. App. 208-09. Claim 8 was not
reviewed. The Federal Circuit affirmed this
decision. Utility Assocs., Inc. v. Digital Ally,
Inc., 672 Fed.Appx. 1000 (Fed. Cir. 2017).
4, 2014, Digital Ally filed this suit containing nine counts
against Utility, including monopolization, false advertising,
tortious interference, bad faith assertion of patent
infringement, defamation and product disparagement, and trade
secret misappropriation. The district court granted
Utility's motion for summary judgment on all nine counts
and denied Digital Ally's motion for partial summary
judgment. Our review is de novo. Jencks v. Modern Woodmen
of Am., 479 F.3d 1261, 1263 (10th Cir. 2007).
Ally appeals only from the grant of summary judgment on
Counts I- IV. Digital Ally states in its brief that it will
focus "exclusively upon . . . 'bad faith.'"
Aplt. Br. at 6. Federal Rule of Appellate Procedure
28(a)(8)(A) requires that Digital Ally sufficiently argue the
issues it seeks to appeal. See SCO Grp., Inc. v.
Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009)
("An issue or argument insufficiently raised in a
party's opening brief is deemed waived."). Because
bad faith is not at issue in Counts V-IX, Digital Ally has
not appealed as to those counts.
also contends that Digital Ally's brief fails to address
the alternative bases for summary judgment as to Counts I-IV.
We agree. Even if Digital Ally could persuade us that the
district court's summary judgment decision was incorrect
on the issue of "bad faith" - which counts I-IV
require - Digital Ally would still have to address in its
opening brief the other grounds on which the district court
decision rests. The failure to do so amounts to a concession
as to the proof. GFF Corp. v. Assoc'd Wholesale
Grocers, Inc., 130 F.3d 1381, 1387-88 (10th Cir. 1997);
see also SCO Grp., Inc., 578 F.3d at 1226
(recognizing that a party must challenge any
"alternative, independently sufficient basis"
supporting the district court's judgment). This is
because "a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial" and
entitles the movant to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
Count I, the elements of a monopoly claim under 15 U.S.C.
§ 2 include "(1) monopoly power in the relevant
market; (2) willful acquisition or maintenance of this power
through exclusionary conduct; and (3) harm to
competition." Lenox MacLaren Surgical Corp., v.
Medtronic, Inc., 762 F.3d 1114, 1119 (10th Cir. 2014).
Digital Ally has not addressed in its opening brief the
district court's decision that it did not prove a
relevant market and market power. Digital Ally, 2017
WL 1197561, ...