United States District Court, D. Kansas
Oklahoma Genetics, Inc. Plaintiff,
Dustin Kelly also known as Dustin Sherwood, MK Farms, and John Does 1-25., Defendants.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Oklahoma Genetics, Inc. (OGI) alleges that defendants Dustin
Kelly and MK Farms violated the Plant Variety Protection Act
(PVPA), 7 U.S.C. § 2561, by knowingly selling the
“Gallagher” wheat variety in violation of
OGI's exclusive license with the owner of the variety.
Kelly and MK tried to resist service of process, but later
appeared in the action and were represented by counsel.
Citing professional and ethical considerations, defense
counsel subsequently withdrew from representation. (Dkt. 36).
OGI has moved for both summary judgment and default judgment
on its claims. (Dkt. 58).
judgment is proper where the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, show there is no genuine issue as to any
material fact, and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). In
considering a motion for summary judgment, the court must
examine all evidence in a light most favorable to the
opposing party. McKenzie v. Mercy Hospital, 854 F.2d
365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment
beyond a reasonable doubt. Ellis v. El Paso Natural Gas
Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving
party need not disprove plaintiff's claim; it need only
establish that the factual allegations have no legal
significance. Dayton Hudson Corp. v. Macerich Real Estate
Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
resisting a motion for summary judgment, the opposing party
may not rely upon mere allegations or denials contained in
its pleadings or briefs. Rather, the nonmoving party must
come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant
probative evidence supporting the allegation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the
moving party has carried its burden under Rule 56(c), the
party opposing summary judgment must do more than simply show
there is some metaphysical doubt as to the material facts.
"In the language of the Rule, the nonmoving party must
come forward with 'specific facts showing that there is a
genuine issue for trial.'" Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in
Matsushita). One of the principal purposes of the
summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and the rule should be
interpreted in a way that allows it to accomplish this
purpose. Celotex Corp. v. Catrett, 477 U.S. 317
following facts are uncontroverted in light of the
defendant's admissions, and the other evidence submitted
by OGI, including the Gallagher PVP Certificate which
Oklahoma State University affiliate Oklahoma Agricultural
Experiment Station (OAES) issued to OSU, and the exclusive
license agreement between OSU and OGI.
through its affiliate OES, owns the Gallagher variety. The
Gallagher PVP Certificate was granted on September 26, 2014,
and remains in force for twenty years. The Gallagher variety
may be sold by variety name only as a class of certified
agreement with OSU, plaintiff OGI is the exclusive licensee
of the variety. It has exclusive rights to use, produce, and
sell the variety, and has the legal right to enforce the PVP
Certificate against infringers.
defendants knew Gallagher was a protected variety of wheat by
January 1, 2015 at the latest. Nevertheless, they sold
uncertified Gallagher seed by variety name to multiple
customers without authority. In doing so, they sold the
Gallagher seed with full knowledge that it was illegal.
evidence establishes that defendants sold at least 6, 100
bushels of the Gallagher variety during the fall of 2017.
Plaintiff's expert, Dr. Leonard White, formulated a range
of damages based on a one-year, two-year, and three-year time
horizon. Even under the most conservative of damages
calculation using only a one-year time horizon, the damages
are $173.07 per bushel of unauthorized wheat seed sold by the
defendants. Based on 6, 100 bushels of unauthorized sales in
2017, the total economic damages are at least $1, 055, 727.
uncontroverted facts establish that Kelly and MK Farms have
violated the PVPA, 7 U.S.C. § 2541(a) by engaging in
unauthorized sales of the Gallagher wheat variety protected
by an exclusive license held by OGI, and OGI is entitled to a
reasonable royalty. 7 U.S.C. § 2564(a).
noted, the expert report by Dr. White reasonably calculates
the royalty which OGI would have received as $1, 055, 727.
This calculation is premised on the exponential growth of
unlicensed seed as it is replanted across three harvests. The
court finds the calculation reflects a reasonable royalty in
light of the relevant factors. See Monsanto Co. v.
Ralph, 382 F.3d 1374, 1383 (Fed. Cir. 2004).
addition to its right to relief under Rule 56, the court
agrees OGI is also entitled to default judgment on its claims
pursuant to Rule 37 given the repeated violation of the
court's orders. On August 29, 2018, the Magistrate Judge
granted OGI's motion to compel, and ordered Kelly and MK
Farms to respond to written discovery requests within 30
days. (Dkt. 43). The court also deemed admitted the Request
for Admissions served on defendants.
court held a status conference on August 28, 2018, which
defendants failed to attend (Dkt. 42). Defendants were given
personal notice by the United States Marshals Service (Dkt.
48) of a subsequent hearing, held on October 4, 2018, but
refused to attend. (Dkt. 51). The court then approved an
award of $2, 924.50 in attorney fees to compensate OGI for
its attempts to force defendants to comply with their
discovery obligations. (Dkt. 52). Defendants have refused to
pay the award.
and MK Farms have thus violated thee separate orders of the
court: (1) the August 29, 2018 directive to comply with
discovery requests (Dkt. 43, at 3); (2) the September 19,
2018 order mandating that all parties to appear in person at
the October 4 hearing (Dkt. No. 47); and (3) ...