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Digital Ally, Inc. v. Utility Associates, Inc.

United States Court of Appeals, Tenth Circuit

February 16, 2018

DIGITAL ALLY, INC., Plaintiff - Appellant,
v.
UTILITY ASSOCIATES, INC., Defendant-Appellee.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:14-CV-02262-CM)

          James 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.

          Before LUCERO, KELLY, and MATHESON, Circuit Judges.

          KELLY, Circuit Judge.

         Plaintiff-Appellant 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.[1]

         Background

         This 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[2]). 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.

         In 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.[3] Utility Assocs., Inc. v. Digital Ally, Inc., 672 Fed.Appx. 1000 (Fed. Cir. 2017).

         On June 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).

         Discussion

         Digital 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.[4]

         Utility 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 (1986).

         As to 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, ...


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