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Everdry Marketing and Management, Inc. v. Delves & Giufre Enterprises, Inc.

United States District Court, W.D. New York

August 3, 2018

EVERDRY MARKETING AND MANAGEMENT, INC., Plaintiff,
v.
DELVES & GIUFRE ENTERPRISES, INC., d/b/a Never- Wet Basement Waterproofing, NEIL DELVES, and KEVIN GIUFRE, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLEORD UNITETF STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff Everdry Marketing and Management, Inc. ("Plaintiff) commenced this action on October 4, 2017, alleging that Defendants Delves & Giufre Enterprises, Inc., d/b/a Never-Wet Basement Waterproofing ("Never-Wet"), Neil Delves ("Delves"), and Kevin Giufre ("Giufre") (collectively "Defendants") have infringed certain claims of United States Patent No. 6, 634, 144 (the '"144 Patent"), entitled "Home Waterproofing System" and issued on October 23, 2003. (Dkt. 1 at ¶ 15). According to Plaintiff, Defendants infringed the '144 Patent by "making, using, offering for sale, selling, and/or importing into the United States . . . home waterproofing systems [that] meet[] each and every element in at least claim 1" thereof. (Id. at ¶ 16).

         Defendants deny infringing the '144 Patent and, on November 7, 2017, filed a motion to dismiss Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. 10). That same day, Plaintiff filed, as of right, an Amended Complaint. (Dkt. 12). On November 20, 2017, Defendants filed a second motion seeking dismissal of the Amended Complaint. (Dkt. 13). For the reasons set forth below, Defendants' motions to dismiss (Dkt. 10; Dkt. 13) are denied.

         FACTUAL BACKGROUND

         The following facts are taken from the Amended Complaint, the operative pleading in this matter. As required on a Rule 12(b)(6) motion, the Court treats these facts as true.

         Plaintiff is a "leading franchisor in the basement waterproofing business," providing homeowners with waterproofing systems that prevent water damage and protect a home's foundation. (Dkt. 12 at ¶ 9). Plaintiff owns the' 144 Patent, which issued on October 21, 2003, and describes "[a] waterproof system for draining water away from a building located in ground having a surface above which a portion of the building extends." (Dkt. 12-1 at 2).

         Delves and Giufre are former employees of Everdry Waterproofing of Upstate New York ("Everdry Upstate"), Plaintiffs franchisee in the Rochester, New York area. (Dkt. 12 at ¶ 10). While employed by Everdry Upstate, Delves and Giufre were trained to install Plaintiffs waterproofing systems. (Id.). Delves and Giufre subsequently voluntarily resigned from Everdry Upstate and formed Never-Wet, which directly competes with Plaintiff in the basement waterproofing industry. (Id. at ¶ 11).

         On July 17, 2014, Plaintiffs counsel sent a letter to Delves warning him to refrain from unauthorized use of Plaintiffs patented technology. (Id. at ¶¶ 12-13).

         Notwithstanding this warning, Delves and Giufre, through Never-Wet, have installed one or more waterproofing systems using Plaintiffs patented technology. (Id. at ¶ 13).

         Specifically, Defendants have installed waterproofing systems that meet each and every element of at least claim 1 of the' 144 Patent. (Id. at ¶ 16).

         Claim 1 of the' 144 Patent claims "[a] waterproofing system for draining water away from a building located in ground having a surface above which a portion of the building extends the building having a footer and at least one wall extending vertically from said footer. . . ." (Dkt. 12-1 at 10). The claimed system comprises:

a first drain member located in a first trench provided in the ground outside the building, said first drain member extending adjacent at least a portion of said at least one wall; and a membrane comprised of a first portion secured to a second portion, said first portion and second portion having different thicknesses, said first portion forming a liner which lines at least a portion of said first trench to form a trough for capturing water flowing from the ground surface into said trench and for preventing water from flowing downwardly along said wall, said second portion being ...

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