Flir Systems, Inc. v. Gambaro , 486 F. App'x 878 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
FLIR SYSTEMS, INC.,
Plaintiff-Appellee,
v.
THOMAS L. GAMBARO,
DOING BUSINESS AS PATENT ENFORCEMENT COMPANY,
Defendant-Appellant,
and
MOTIONLESS KEYBOARD COMPANY,
Defendant.
__________________________
2012-1100
__________________________
Appeal from the United States District Court for the
District of Oregon in case no. 10-CV-0231, Judge Anna J.
Brown.
__________________________
Decided: July 11, 2012
__________________________
SUSAN D. MARMADUKE, Harrang Long Gary Rudnick
P.C., of Portland, Oregon, for plaintiff-appellee. With her
on the brief was JONA J. MAUKONEN. Of counsel on the
FLIR SYSTEMS v. GAMBARO 2
brief was MICHAEL J. COLLINS, Bickel & Brewer, of Dallas,
Texas.
THOMAS L. GAMBARO, of Portland, Oregon, pro se.
__________________________
Before RADER, Chief Judge, and O’MALLEY and REYNA,
Circuit Judges.
PER CURIAM.
Pro se appellant, Thomas Gambaro, is the named in-
ventor of U.S. Patent No. 5,322,322 (“the ‘322 Patent”)
and U.S. Design Patent 405,071 (“the ‘071 Design Pat-
ent.”). In 1997, Mr. Gambaro founded Motionless Key-
board Company (“MKC”) and assigned the ‘322 Patent to
MKC. 1 Mr. Gambaro subsequently accused FLIR Sys-
tems, Inc. (“FLIR”) of infringing the ‘322 Patent. In
response, FLIR sued MKC and Mr. Gambaro, seeking a
declaratory judgment that its products did not infringe
and that the patent is invalid and unenforceable.
Throughout the litigation that ensued, Mr. Gambaro
repeatedly violated court orders. As a sanction, the
district court struck his pleadings and entered a default
judgment of noninfringement in FLIR’s favor. Because
imposition of that sanction was within the district court’s
power and was not an abuse of discretion, we affirm.2
I.
Mr. Gambaro is the named inventor of the ‘322 Patent
for “Ergonomic Thumb-Actuable Keyboard for Hand-
Grippable Device,” which claims a hand-grippable device
1 The ‘322 Patent expired on January 12, 2010.
2 The remaining issues on appeal provide no basis
for relief.
3 FLIR SYSTEMS v. GAMBARO
that frees the thumb to actuate keys in various ways. 3
After Mr. Gambaro founded MKC in 1997, he assigned
the ‘322 Patent to it. 4
In 2004, MKC sued Microsoft and other defendants al-
leging infringement of the ‘322 Patent, but Chief Judge
Ann Aiken of the United States District Court for the
District of Oregon held that the patent was invalid and
not infringed. Specifically, the district court construed
the phrase “a concavity in said housing at said key-
actuation positions and a thumb-associable cluster of keys
forming a keyboard with said concavity” to mean:
That the concavity must be formed by a depres-
sion in the housing of the device, and that all keys
comprising the keyboard must be contained en-
tirely within the concave area and sunk below the
surface of the housing, so that the thumb move-
ment occurs within the concave area.
Microsoft I, 2005 WL 1113818 at *16, 19. On appeal, this
court reversed the invalidity ruling, but affirmed the
noninfringement ruling and claim construction (“Aiken
Construction”).
In 2009 and 2010, Mr. Gambaro mailed letters to
FLIR, a thermal imaging camera producer. Relying on
the claim construction the district court rejected in 2004,
Mr. Gambaro alleged that certain FLIR products in-
fringed the ‘322 Patent. Mr. Gambaro asserted that the
Aiken Construction was erroneous and demanded that
FLIR pay him monies for the alleged infringement. FLIR
3 Due to the complex procedural history of this case,
only relevant portions of the procedural history are dis-
cussed herein.
4 MKC was administratively dissolved by the State
of Oregon in 2008.
FLIR SYSTEMS v. GAMBARO 4
refused and sued Mr. Gambaro and MKC, seeking a
declaratory judgment that, based on the Aiken Construc-
tion, its products did not infringe the claims of the ‘322
Patent and that the patent is invalid and unenforceable.
Mr. Gambaro filed counterclaims, including allegations of
infringement, defamation, and malicious prosecution.
FLIR moved to strike the Answer with respect to
MKC because Mr. Gambaro filed it in violation of Oregon
District Court Local Rule 83-9(b), which prohibits a
corporation to appear or act except through an attorney
absent a court order or as otherwise specified by law. The
district court granted FLIR’s motion. Ultimately, MKC
retained counsel, and the district court granted counsel’s
motion for leave to withdraw. When MKC failed to an-
swer FLIR’s amended complaint, the district court
granted FLIR’s motion for entry of an Order of Default
against MKC.
FLIR served document requests and interrogatories,
but Mr. Gambaro provided neither the requested docu-
ments nor substantive responses to interrogatories.
Rather, Mr. Gambaro filed ten motions, primarily relating
to disqualification and discovery issues. The district court
denied the motions, except that it permitted Mr. Gambaro
to file an amended answer.
On June 23, 2010, the district court instructed Mr.
Gambaro that the Aiken Construction had been fully
litigated, but the district court would need to decide
whether it was controlling on Mr. Gambaro since he was
not a party to that litigation. FLIR moved for partial
summary judgment seeking an order that the Aiken
Construction was binding on Mr. Gambaro.
During this time, Mr. Gambaro filed countless docu-
ments and motions with the district court. The district
court repeatedly requested that Mr. Gambaro refrain
5 FLIR SYSTEMS v. GAMBARO
from filing further motions. On March 25, 2011, the
district court issued an order identifying how Mr. Gam-
baro had violated its previous orders and warned him to
discontinue further violations. Specifically, the Order
stated:
The Court hereby issues its final warning to
Gambaro. Any further violations of this
Court’s orders, including its case-management
orders, will be sanctioned to include the possi-
bility of striking Gambaro’s Answer and per-
mitting Plaintiff FLIR to proceed to a
judgment in this matter without Gambaro’s
participation.
Mr. Gambaro responded four days later:
The Defendant Pro Se does not consider the
statement of the Court to be a ‘final warning’ but
more accurately a threat of tyranny to the Consti-
tutionally assured rights of a natural born citizen
of the United States. The Defendant Pro Se is
outraged that these measures were even consid-
ered to the point of including them in an order.
DO NOT THREATEN ME AGAIN IN WRITING.
I do not take kindly to threats in any form.
Gambaro Ltr. to J. Brown (Mar. 29, 2011). Mr. Gambaro
characterized the Order as “an act of Judicial Terrorism”
and stated that he would never agree to the Aiken Con-
struction because it was “FRAUD pure and simple.” Id.On April 18, 2011, the district court granted FLIR’s
motion for partial summary judgment, ruling that Mr.
Gambaro was bound by the Aiken Construction and could
not further challenge it. Mr. Gambaro ignored that ruling
and filed various documents, accusing Chief Judge Aiken
of lacking the technical expertise to construe the patent
FLIR SYSTEMS v. GAMBARO 6
correctly and failing to give adequate consideration to the
evidence.
In an order issued on June 3, 2011, the district court
again warned Mr. Gambaro that his behavior could result
in sanctions, stating in pertinent part:
The Court has previously warned Gambaro that
he will be sanctioned if he does not comply with
the Court’s case-management orders. Accord-
ingly, if Gambaro violates this order, the Court
will sanction him and will consider striking all of
his pleadings and precluding him from defending
FLIR’s claims against him.
In direct contravention of this order, Mr. Gambaro
filed a video declaration and motion for reconsideration
arguing that the Aiken Construction was erroneous. Two
days later, he filed a progress report with a YouTube
video that was purportedly evidence as to why the Aiken
Construction was invalid. The district court issued two
orders on August 1, 2011, warning Mr. Gambaro of the
possible consequences of his violations and directing him
to show cause why the district court should not impose a
bond as security against future violations. Ten days later,
Mr. Gambaro filed an unauthorized motion to bar the
Aiken Rulings from the case, and the district court issued
a supplemental order to show cause why the district court
should not find Mr. Gambaro to be in violation of its prior
orders. Mr. Gambaro’s response to the supplemental
order states in pertinent part:
The Court has ordered on numerous occasions
that the parties may not file additional pleadings.
In the view of the Defendant Pro Se Gambaro this
is unconstitutional violating the Amendment I of
the U.S. Constitution . . . and the attorneys may
be bound to such an order but it is not mandatory
7 FLIR SYSTEMS v. GAMBARO
in my view. I have a right to conduct my defense
in the best manner possible.
Gambaro Ltr. to J. Brown (Aug. 18, 2011).
Because Mr. Gambaro refused to comply with the dis-
trict court’s orders, FLIR moved for entry of default
judgment against Mr. Gambaro, and the district court
granted the motion.
This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(1).
II.
This appeal appears to present the following issues: (i)
whether the district court abused its discretion in sanc-
tioning Mr. Gambaro by striking his pleadings and enter-
ing a default judgment of noninfringement; (ii) whether
the district court incorrectly determined that FLIR had
conferred sufficiently with Mr. Gambaro to satisfy the
local conferral rule, or, in the alternative, abused its
discretion in waiving the conferral requirement; (iii)
whether the district court abused its discretion by defer-
ring discovery and entry of a protective order and by
denying Mr. Gambaro’s motion for sanctions against FLIR
for alleged discovery violations; and (iv) whether the
district court erred in granting FLIR’s motion for partial
summary judgment declaring that Mr. Gambaro is bound
by the Aiken Construction. Because we hold that the
district court did not abuse its discretion in striking Mr.
Gambaro’s pleadings and entering a default judgment of
noninfringement, we do not reach the remaining issues
raised on appeal.
A. Standard of Review
We review procedural issues not unique to patent law
under the standards of the regional circuit -- here, the
FLIR SYSTEMS v. GAMBARO 8
Ninth Circuit. See Dominant Semiconductors SDN, BHD
v. OSRAM GmbH, 524 F.3d 1254, 1260 (Fed. Cir. 2008).
In the Ninth Circuit, whether a district court has the
power to impose a default sanction is reviewed de novo.
See Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir.
2011). Whether that sanction was properly imposed is
reviewed for abuse of discretion. Id. Under this deferen-
tial standard, we will overturn a court’s decision to order
default judgment as a sanction for misconduct “only if we
have a definite and firm conviction that it was clearly
outside the acceptable range of sanctions.” Malone v.
United States Postal Serv., 833 F.2d 128, 130 (9th Cir.
1987).
B. Analysis
Mr. Gambaro primarily challenges the district court’s
decision to strike his pleadings and enter a default judg-
ment in FLIR’s favor as a sanction for his repeated viola-
tion of court orders. We hold that the district court
possessed the power to impose that sanction and did not
abuse its discretion in doing so. See Televideo Sys., Inc. v.
Heidenthal, 826 F.2d 915, 916 (9th Cir. 1987) (recogniz-
ing that district courts may enter default judgment to
sanction abusive litigation practices and observing that
such power is “necessary to enable the judiciary to func-
tion”).
In the Ninth Circuit, a five-factor balancing test is
applied to determine whether dismissal of a case is an
appropriate sanction for failure to comply with a court
order: (i) the public interest in expeditious resolution of
the litigation; (ii) the court’s need to manage its docket;
(iii) the risk of prejudice to the other party; (iv) the public
policy favoring the disposition of cases on their merits;
and (v) the availability of less drastic sanctions. See
Malone, 833 F.2d at 130 (citation omitted). Taken as a
9 FLIR SYSTEMS v. GAMBARO
whole, these factors weighed in favor of the default judg-
ment.
Mr. Gambaro repeatedly violated court orders, despite
countless warnings by the district court that his behavior
could result in sanctions that included the striking of his
pleadings and the entrance of a default judgment. The
district court gave Mr. Gambaro multiple opportunities to
show cause why such sanctions should not be imposed.
We find no error in the district court’s conclusion that Mr.
Gambaro was attempting to protract the litigation to force
FLIR to settle the case. It is beyond dispute that Mr.
Gambaro’s disobedience of court orders made the district
court’s case management more difficult and wasted judi-
cial time and resources. We agree with the district court’s
conclusion that FLIR was prejudiced because it had to
respond to Mr. Gambaro’s unauthorized motions, incur-
ring unnecessary litigation expenses and delaying resolu-
tion of the matter. The district court observed that it had
no reason to conclude that Mr. Gambaro would stop filing
frivolous motions or willfully violating court orders. It
correctly noted that the public policy favoring disposition
of the merits weighed against entering a default judg-
ment. However, when considered in light of the other
factors, this factor alone does not preclude imposition of a
default judgment.
We also find no error in the district court’s conclusion
that less drastic measures would be insufficient given
provided the district court’s repeated attempts to convince
Mr. Gambaro to comply with court orders and rules. The
district court had employed less drastic measures, such as
issuing orders to show cause and other warnings, but
these measures proved ineffective. The district court
warned Mr. Gambaro of the possibility of the sanction of a
default judgment before imposing it. It implemented
alternative sanctions before ordering default, and it
FLIR SYSTEMS v. GAMBARO 10
explained why less drastic sanctions were inappropriate
in light of Mr. Gambaro’s conduct during the litigation.
Therefore, we hold that the district court did not abuse its
discretion. 5 For the foregoing reasons, the judgment of
the district court is hereby
AFFIRMED
COSTS
Appellant shall bear the costs.
5 We have considered Mr. Gambaro’s other argu-
ments made on appeal and in light of our holding above,
we find that they provide no basis for relief.