{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
REC'D & FILED
2012 JAN 23 PM 4:33
ALAN GLOVER CLERK
BY DEPUTY ___________
Matthew D. Francis (6978)
Adam P. McMillen (10678)
WATSON ROUNDS
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
In The First Judicial
District Court of the State of Nevada
In and for Carson City
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JED MARGOLIN, an individual, Plaintiff,
VS.
OPTIMA TECHNOLOGY CORPORATION, a California corporation, OPTIMA TECHNOLOGY CORPORATION, a Nevada corporation, REZA ZANDIAN aka GOLAMREZA ZANDIANJAZI aka GHOLAM REZA ZANDIAN aka REZA JAZI aka J. REZA JAZI aka G. REZA JAZI aka GHONONREZA ZANDIAN JAZI, an individual, DOE Companies 1-10, DOE Corporations 11-20, and DOE Individuals 21-30, Defendants.
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Case No.: 09OC00579 1B Dept. No.: 1
MOTION TO STRIKE |
COMES NOW Plaintiff Jed Margolin and hereby files this motion to strike Defendant Reza Zandian's ("Zandian") reply to the opposition to the motion to dismiss, which was filed in this Court on December 13, 2011, inasmuch as the reply includes information that is patently false.
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This motion is based on the following Memorandum of Points and Authorities and all pleadings, motions, and papers on file herein.
Dated this 19th day of January, 2012. WATSON ROUNDS
BY: Adam McMillen
Matthew D. Francis (6978)
Adam P. McMillen (10678)
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
MEMORANDUM OF POINTS AND AUTHORITIES
I. FACTUAL BACKGROUND
Plaintiff Jed Margolin is the named inventor on United States Patent No. 5,566,073 ("the '073 Patent"), United States Patent No. 5,904,724 ("the '724 Patent"), United States Patent No. 5,978,488 ("the '488 Patent") and United States Patent No. 6,377,436 ("the '436 Patent")(collectively "the Patents"). In 2004, Mr. Margolin granted to Robert Adams, then CEO of Optima Technology, Inc. (later renamed Optima Technology Group (hereinafter "OTG"), a Cayman Islands Corporation specializing in aerospace technology) a Power of Attorney regarding the Patents. Subsequently, Mr. Margolin assigned the '073 and '724 Patents to OTG and revoked the Power of Attorney.
In May 2006, OTG and Mr. Margolin licensed the '073 and '724 Patents to Geneva Aerospace, Inc., and Mr. Margolin received a royalty payment pursuant to a royalty agreement between Mr. Margolin and OTG. On or about October 2007, OTG licensed the '073 Patent to Honeywell International, Inc., and Mr. Margolin received a royalty payment pursuant to a royalty agreement between Mr. Margolin and OTG.
On or about December 5, 2007, Defendant Zandian filed with the U.S. Patent and Trademark Office ("USPTO") fraudulent assignment documents allegedly assigning all four of the Patents to Optima Technology Corporation ("OTC"), a company apparently owned by Defendant Zandian at the time. Shortly thereafter, on November 9, 2007, Mr. Margolin,
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Robert Adams, and OTG were named as defendants in the case titled Universal Avionics Systems Corporation v. Optima Technology Group, Inc., No. CV 07-588-TUC-RCC (the "Arizona action"). Zandian was not a party in the Arizona action. Nevertheless, the plaintiff in the Arizona action asserted that Mr. Margolin and OTG were not the owners of the '073 and `724 Patents, and OTG filed a cross-claim for declaratory relief against Optima Technology Corporation ("OTC") in order to obtain legal title to the respective patents.
On August 18, 2008, the United States District Court for the District of Arizona entered a default judgment against OTC and found that OTC had no interest in the '073 or `724 Patents, and that the assignment documents filed with the USPTO were "forged, invalid, void, of no force and effect." See Exhibit B to Zandian's Motion to Dismiss, dated 11/16/11, on file herein.
Due to Defendants' fraudulent acts, title to the Patents was clouded and interfered with Plaintiff's and OTG's ability to license the Patents. In addition, during the period of time Mr. Margolin worked to correct record title of the Patents in the Arizona action and with the USPTO, he incurred significant litigation and other costs associated with those efforts.
II. PROCEDURAL BACKGROUND
Zandian served his motion to dismiss the amended complaint on a special appearance on November 16, 2011. Mr. Margolin filed and served his opposition on December 5, 2011. Zandian filed his reply on December 13, 2011.
Now, Mr. Margolin brings this motion to strike Zandian's reply inasmuch as the reply contains patently false information relating to Mr. Margolin's relationship with OTG and OTC and the Arizona action.
III. ARGUMENT
A. THIS MOTION TO STRIKE IS PROPER PURSUANT TO THE COURT'S INHERENT POWER TO STRIKE INAPPROPRIATE MATERIALS FROM THE RECORD
Courts have the inherent power to strike inappropriate materials that are improperly part of the public record. See Jones v. Metropolitan Life Ins. Co. et al, 2010 WL 4055928, *6
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(N.D.Cal.). "Therefore, based on its inherent powers, a court may strike material from the docket, including portions of a document, reflecting procedural impropriety or lack of compliance with court rules or orders." Id, (citing Zep, Inc. v. Midwest Motor Supply Co., 2010 WL 2572129, at *2-3 (S.D.Ohio 2010)(portions of reply brief ordered stricken based on court's inherent power to control docket because they supported claim for which party had not moved for summary judgment). In addition, while the filing of Zandian's reply brief is not necessarily an admission of evidence, "NRS 47.040(1)(a) requires a party who objects to the admission of evidence to make 'a timely objection or motion to strike ..., stating the specific ground of objection."' Thomas v. Hardwick, 231 P. 3 d 1111, 1120 (Nev. 2010).
In this case, Zandian's reply to the opposition to the motion to dismiss, filed on December 13, 2011, should be stricken because it contains the following patently false information and should not be part of the public record:
1. Zandian's statement that Mr. Margolin litigated the same transactions and occurrences to a final judgment in the Arizona action -"by and through his company, Optima Technology, Inc. a/ka/ Optima Technology Group, Inc. (hereinafter "OTG")" is false;[1]
2. Zandian's statement that "[i]n the Arizona action, Margolin, acting as agent for OTC, alleged that Optima Technology Corporation (hereinafter "OTC") unlawfully converted OTG's patents to its own dominion and control" is false;[2]
3. Zandian's statement that "[i]n the Arizona action, Margolin characterized the same facts as constituting wrongdoing" is false;[3] and
4. Zandian's statement that "kin the Arizona action, Margolin alleged that 'Zandian executed [documents purporting to assign or transfer title and/or interest in the Patents to OTC with the PTO] by (inter alia) utilizing his signature on behalf of OTC and mis‑
_______________________________
[1] Reply, dated 12/13/11, 2:4-6.
[2] Reply, dated 12/13/11, 2:9-11.
[3] Reply, dated 12/13/11, 2:11-18.
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stating that Zandian/OTC was exercising the Power of Attorney as the 'attorney in fact' of Margolin"' is also false.[4]
The true facts are as follows: (1) OTG is not and never has been Mr. Margolin's company and the Power of Attorney he gave to Robert Adams, then CEO of OTG, was revoked prior to the times relevant in the Arizona action and Mr. Margolin did not litigate the Arizona action by and through OTG;[5] (2) Mr. Margolin has never acted as OTC's agent and did not litigate the same transactions and occurrences in the Arizona action through OTG or OTC;[6] (3) Mr. Margolin did not file the amended answer, counterclaims, cross-claims and third-party claims that Zandian states is the basis for Zandian's allegation that "Margolin characterized the same facts as constituting wrongdoing" in the Arizona action;[8] (4) OTG filed the amended answer, counterclaims, cross-claims and third-party claims in the Arizona action and OTG was not Mr. Margolin's agent in the Arizona action and Mr. Margolin did not make allegations in the Arizona action by and through OTG.[8]
As a result, Zandian's reply must be stricken anywhere it contains such patently false information.
B. OTG IS NOT MARGOLIN'S PRIVY AND VICE VERSA
Zandian's reply also states that "Margolin's privy, OTG brought a cross-claim against OTC, and alleged that Zandian was involved with OTC." See Reply, dated 12/13/11, 6:23-24. Zandian cites to Exhibit 29, attached to Mr. Margolin's opposition to the motion to dismiss, dated December 5, 2011, as the basis for the argument that OTG is Mr. Margolin's privy. However, as stated above, Exhibit 29 shows that OTG brought the cross-claim against OTC in the Arizona action—not Mr. Margolin. More importantly, Mr. Margolin is not and was not the
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[4] Reply, dated 12/13/11, 2:23-26.
[5] See Declaration of Jed Margolin, dated 1/19/12, ¶ 4 ("Margolin Decl.").
[6] See Margolin Dec l. at ¶ 5.
[7] See Reply, dated 12/13/11, 2:11-18 (OTG filed the pleading).
[8] See Margolin Decl. at ¶ 7.
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owner of OTG at all relevant times; and OTG is not and was not the agent of Mr. Margolin at all relevant times.[9]
Therefore, Zandian's false statement that OTG is Mr. Margolin's privy must be stricken.
IV. CONCLUSION
Based upon the foregoing, Plaintiff Jed Margolin respectfully requests that this Court strike Zandian's reply to the opposition to the motion to dismiss wherever it contains the patently false statements.
AFFIRMATION PURSUANT TO NRS 239B.030
The undersigned does hereby affirm that the preceding document does not contain the social security number of any person.
Dated this 20th day of January, 2012. WATSON ROUNDS
BY: Adam McMillen
Matthew D. Francis (6978)
Adam P. McMillen (10678)
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
____________________________
[9] See Margolin Decl. at ¶ 8.
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CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of Watson Rounds, and that on this date, I deposited for mailing, in a sealed envelope, with first-class postage prepaid, a true and correct copy of the foregoing document, MOTION TO STRIKE, addressed as follows:
John Peter Lee
John Peter Lee, Ltd.
830 Las Vegas Blvd. South
Las Vegas, NV 89101
Dated: January 20, 2012
_________________
Carla Ousby
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