Separation Engineers, Inc. v. ConocoPhillips Company et al

RESPONSE in Opposition to 51 MOTION to Dismiss 47 Amended Complaint/Counterclaim/Crossclaim etc.

S.D. Tex.December 19, 2012

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Separation Engineers, Inc., ) Civil Action No. 4:12-cv-01713 ) Plaintiff, ) JURY TRIAL DEMANDED ) vs. ) ) ConocoPhillips Company and ) ) Phillips 66 Company, ) ) Defendants. ) PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS SEI’S SECOND AMENDED COMPLAINT Defendants’ motion to dismiss the Second Amended Complaint, D.E. 51, urges the Court to grant the same relief they previously sought in their earlier motions for dismissal under Rule 12(b)(6) and for summary judgment. D.E. 36; 37. Each asks the Court to dismiss SEI’s state law claims based solely on the statute of limitations. Id; D.E. 51 at 1. SEI demonstrated the Defendants’ statute of limitations motions should be denied relief for a variety of reasons, including: (1) Defendants’ motion papers completely fail to address several of SEI’s state law claims; and (2) Defendants assert a wholly fictitious and unsupportable accrual date for SEI’s claims. D.E. 41; 43 Exh. W. In moving for dismissal based on limitations, Defendants are obligated to first establish there is no genuine issue of fact relating to the accrual date for the cause of action. Although Defendants had multiple opportunities to attempt to establish why SEI’s state law claims should be dismissed, Defendants now, for the first time, cryptically allege that SEI “lost protection” “concerning its technology” because the “public record” demonstrates that “SEI Case 4:12-cv-01713 Document 52 Filed in TXSD on 12/19/12 Page 1 of 3 2 dedicated its technology to the public when it applied for patent protection on its technology.” D.E. 51 at 2. Defendants nowhere connect this factually flawed and irrelevant statement with any pertinent contract provision or cause of action – let alone explain how it affects their statute of limitations motion. For example, SEI alleges that under a particular provision of the Technology Assessment Agreement, it owns all intellectual property based on SEI’s Technology, and that when ConocoPhillips applied for and obtained patents based on SEI’s Technology, it breached that agreement. D.E. 47 at ¶¶ 55, 61. ConocoPhillips’ flawed and conclusory statement is irrelevant to this claim. Likewise, ConocoPhillips expressly acknowledged that SEI, not ConocoPhillips, owned certain trade secrets. See D.E. 47 at ¶¶ 39; 73. When ConocoPhillips filed patent applications based on SEI’s trade secrets, ConocoPhillips misappropriated those trade secrets. D.E. at ¶ 75. Whether or not SEI might have sought patent protection on some of these trade secrets, which itself is in dispute, is irrelevant under Texas law to the issue of whether ConocoPhillips’ misappropriated those trade secrets. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex. 1958). For the reasons SEI previously stated in opposition to Defendants’ summary judgment, Defendants’ motions to dismiss and for summary judgment should be denied. Dated: Wednesday, December 19, 2012 Respectfully submitted, /s/ Edward W. Goldstein Edward W. Goldstein – Attorney-in-Charge Texas Bar No. 08099500 Southern District of Texas Bar No. 586 GOLDSTEIN LAW P.L.L.C. Case 4:12-cv-01713 Document 52 Filed in TXSD on 12/19/12 Page 2 of 3 3 710 North Post Oak Road, Suite 350 Houston, Texas 77024 Tel.: (713) 877-1515 Facsimile: (713) 877-1145 E-Mail: egoldstein@gliplaw.com ATTORNEY FOR PLAINTIFF OF COUNSEL Gary J. Fischman Texas Bar Number 00787469 Southern District of Texas Bar No.: 17126 Tel.: (832) 209-4206 gfischman@FandLattorneys.com Stephen L. Lundwall Texas Bar Number 12696980 Southern District of Texas Bar No.: 14180 Tel.: (832) 209-4220 slundwall@FandLattorneys.com Fischman & Lundwall P.L.L.C. 710 North Post Oak Road, Suite 101 Houston, Texas 77024 Facsimile: (713) 977-8536 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court’s CM/ECF system per Local Rule CV-5(a)(3) on December 19, 2012. Any other counsel of record will be served by first class U.S. mail. /s/ Edward W. Goldstein Edward W. Goldstein Case 4:12-cv-01713 Document 52 Filed in TXSD on 12/19/12 Page 3 of 3