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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION
SHOES BY FIREBUG LLC, § § Plaintiff, § CAUSE NO. 4:16-cv-00899 § v. § § JURY TRIAL DEMANDED STRIDE RITE CHILDREN'S GROUP, LLC, § and WOLVERINE WORLD WIDE, INC. § § Defendants. §
FIRST AMENDED COMPLAINT
Plaintiff Shoes by Firebug LLC ("Plaintiff" or "Firebug") files this First Amended
Complaint against Defendants Stride Rite Children's Group, LLC ("Stride Rite") and Wolverine
World Wide, Inc. ("Wolverine") (collectively, "Defendants") for infringement of United States
Patent No. 8,992,038 and United States Patent No. 9,301,574.
THE PARTIES
1. Plaintiff Shoes by Firebug LLC is a Texas limited liability company with a principal place of business located at 14100 Southwest Freeway, Suite 360, Sugar Land, Texas
77478.
2. On information and belief, Defendant Stride Rite Children's Group, LLC is a
Massachusetts limited liability company with a principal place of business at 500 Totten Pond
Road, Waltham, MA 02451. Stride Rite's Registered Agent in the State of Texas is Corporation
Service Company d/b/a CSC-Lawyers Incorporation Service Company, 211 E. 7th Street, Suite
620, Austin, TX 78701. Defendant Stride Rite has already appeared in this action.
3. Defendant Wolverine World Wide, Inc. is a Delaware corporation with a principal place of business located at 9341 Courtland Dr NE # HC-107, Rockford, Michigan 49351.
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Wolverine's registered agent in the State of Texas is CT Corporation System, 350 N. St. Paul St,
Dallas, Texas 75201.
4. On information and belief, Stride Rite is engaged in the business of designing, manufacturing, and selling footwear for children. As of the date this lawsuit was instituted,
Stride Rite owned and operated at least two retail store locations in this District under the "Stride
Rite" trade name, including retail stores located at 6121 W. Park Blvd., Plano, Texas 75093 and
820 W. Stacy Rd., Allen, Texas 75013. As of the date this lawsuit was instituted, Stride Rite also owned and operated an online retail store available at http://www.striderite.com, which is directed to residents of Texas, including those residing within the Eastern District of Texas, as well as residents of other states across the United States. On information and belief, Stride Rite has sold and offered for sale—and continues to sell and offer for sale—products, including the infringing products identified below, to residents of the State of Texas and of this District through its physical and online retail stores. On information and belief, Stride Rite further sells products, including the infringing products, to physical and online retailers who, in turn, sell such products to residents of Texas and of this District.
5. On information and belief, Wolverine designs, manufactures, sources, markets, licenses, and distributes footwear and other apparel and accessories. On information and belief,
Stride Rite is a subsidiary of Wolverine. On further information and belief, Wolverine actively engages in the design, manufacture, testing, and importation of footwear for, with, and/or on behalf of its subsidiaries, including Stride Rite.
6. On information and belief, at the time this lawsuit was instituted or at the time
Plaintiff's claim accrued, Wolverine owned and/or operated retail store locations in this District, including a Merrell shoe store in Allen, Texas.
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7. On information and belief, Wolverine owns the registered and common law trademarks associated with the Stride Rite brand.
8. On information and belief, Wolverine directly controls the process of designing, manufacturing, testing, and importing the majority of footwear sourced under its brand names, including Stride Rite. Wolverine maintains offices and employees in the Asia Pacific region specifically to facilitate manufacturing and sourcing strategies for its brands, including Stride
Rite. Wolverine also established guidelines for its manufacturers, including manufacturers of
Stride Rite footwear, to monitor product quality, labor practices, and financial viability.
Wolverine additionally owns and operates distribution centers in the United States, which it uses to distribute its branded footwear, including Stride Rite footwear.
9. Wolverine representatives are directly involved in the design and development of
Stride Rite footwear, including the footwear accused of infringement herein.
10. Wolverine imports the accused products into the United States for quality control review, testing, and for further sale and distribution within the United States.
NATURE OF THE ACTION
11. This is a civil action for infringement of United States Patent No. 8,992,038 (the
'038 Patent) and United States Patent No. 9,301,574 (the '574 Patent) arising under the Patent
Laws of the United States, 35 U.S.C. § 1 et seq.
JURISDICTION AND VENUE
12. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. §§
1331 and 1338(a).
13. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400(b) because, at the time this suit was filed, Defendants purposefully sold and offered to sell
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infringing products in this District and/or Defendants induced others to sell or offer to sell infringing products in this District and Defendants had a regular and established place of business in this District.
14. In addition, because Plaintiff's claims against Wolverine arise from the same common nucleus of operative facts, and the Court's exercise of venue furthers the goals of judicial economy, convenience, and fairness to the litigants, the Court should exercise pendent venue over Plaintiff's claims against Wolverine.
15. This Court has personal jurisdiction over Defendants because Defendants have committed, and continue to commit, acts of infringement in and directed toward the State of
Texas, including in this District and/or have engaged in continuous and systematic activities in the State of Texas, including in this District. In addition, Defendants have placed infringing products in the stream of commerce with the knowledge and/or understanding that such products are used and sold in this District.
BACKGROUND
16. Plaintiff Firebug is engaged in the business of designing, developing, and selling fashionable, light-up footwear. Plaintiff's founder, Roy Robert Smith III, has pioneered numerous advances in light-up shoe technology and is, at the time of filing, a named inventor on six United States Patents.
17. The '038 Patent, titled "Internally Illuminated Light Diffusing Footwear," was duly and legally issued by the United States Patent and Trademark Office on March 31, 2015. A copy of the '038 Patent is attached hereto as Exhibit A.
18. Firebug is the exclusive owner of all rights, title, and interest in the '038 Patent, including the right to exclude others and to enforce, sue, and recover damages for past and future infringement thereof.
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19. The '574 Patent, titled "Internally Illuminated Light Diffusing Footwear," was duly and legally issued by the United States Patent and Trademark Office on April 5, 2016. A copy of the '574 Patent is attached hereto as Exhibit B.
20. Firebug is the exclusive owner of all rights, title, and interest in the '574 Patent, including the right to exclude others and to enforce, sue, and recover damages for past and future infringement thereof.
COUNT ONE: INFRINGEMENT OF THE '038 PATENT
21. Firebug realleges and incorporates by reference the above allegations.
22. Firebug has ownership of all rights in the '038 Patent, including the right to exclude others from making, using, selling, and offering to sell the claimed invention throughout the United States, the right to prevent others from importing the claimed invention into the
United States, the right to enforce the '038 Patent, and the right to sue and recover damages for past and future infringement thereof.
23. The '038 Patent is valid, enforceable, and was duly issued in full compliance with
Title 35 of the United States Code.
24. In addition to, or in the alternative to the allegations in Count 2, below, and on information and belief, Defendants have directly and/or indirectly infringed and continue to infringe at least Claim 1 of the '038 Patent in this judicial District and elsewhere within the
United States without the consent or authorization of Firebug by making, using, selling, offering to sell, and/or importing into the United States internally illuminated light diffusing footwear, including, but not limited to: 1) Stride Rite Racer Lights Light-Up Sneakers; 2) Stride Rite
Marvel Avengers Light-Up Sneakers; 3) Stride Rite Marvel Avengers Iron Man Light-Up
Athletic Shoe; 4) Stride Rite Marvel Avengers Hulk Light-Up Sneakers; 5) Stride Rite Ultimate
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Spider Man Light-Up Sneakers; and 6) Stride Rite Spider-Man Spidey Reflex Light-Up Shoes
(collectively, and including other similar internally illuminated light diffusing footwear, the
"Accused Products").
25. The Accused Products are internally illuminated textile footwear comprising a sole and an upper. By way of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted below is an internally illuminated textile footwear comprising a footwear further comprising a sole and an upper.
upper
sole
26. The Accused Products further comprise an illumination system which comprises a power source and a plurality of illumination sources. By way of example only, the Stride Rite
Racer Lights Light-Up Sneaker depicted below further comprises an illumination system which comprises a power source and a plurality of illumination sources.
illumination system comprising a power source
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illumination system comprising a plurality of illumination sources
27. The Accused Products further comprise a liner. By way of example only, the
Stride Right Racer Lights Light-Up Sneaker depicted below comprises a liner.
liner
28. The Accused Products further comprise a structure, which structure further comprises an interfacing layer and a batting. By way of example only, the Stride Rite Racer
Lights Light-Up Sneaker depicted below comprises a structure, which structure further comprises an interfacing layer and a batting.
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structure
interfacing layer
batting
29. The Accused Products further comprise a structure being adjacently connected to the upper. By way of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted below comprises a structure being adjacently connected to the upper.
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upper
structure
30. The Accused Products further comprise a structure being positioned between the liner and the upper. By way of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted below comprises a structure being positioned between the liner and the upper.
liner
structure
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upper
31. The Accused Products further comprise the interfacing layer being positioned
adjacent to the liner. By way of example only, the Stride Rite Racer Lights Light-Up Sneaker
depicted below comprises the interfacing layer being positioned adjacent to the liner.
liner
interfacing layer
32. The Accused Products further comprise the batting being adjacently connected to
the interfacing layer opposite the liner. By way of example only, the Stride Rite Racer Lights
Light-Up Sneaker depicted below comprises the batting being adjacently connected to the
interfacing layer opposite the liner.
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interfacing layer
batting
33. The Accused Products further comprise the interfacing layer being reflective. By
way of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted below comprises
the interfacing layer being reflective.
reflective interfacing layer
34. The Accused Products further comprise the batting being light diffusing. By way
of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted below comprises the
batting being light diffusing.
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light diffusing batting
diffused light
35. The Accused Products further comprise the plurality of illumination sources being
adjacently connected to the interfacing layer. By way of example only, the Stride Rite Racer
Lights Light-Up Sneaker depicted below comprises the plurality of illumination sources being
adjacently connected to the interfacing layer.
plurality of illumination sources
interfacing layer
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36. The Accused Products further comprise the plurality of illumination sources being
positioned between the interfacing layer and the batting. By way of example only, the Stride
Rite Racer Lights Light-Up Sneaker depicted below comprises the plurality of illumination
sources being positioned between the interfacing layer and the batting.
plurality of illumination sources
interfacing layer
batting
37. The Accused Products further comprise the upper being perimetrically connected
to the sole. By way of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted
below comprises the upper being perimetrically connected to the sole.
upper
sole
38. The Accused Products further comprise the liner being positioned interior to the
upper. By way of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted below
comprises the liner being positioned interior to the upper.
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liner
upper
39. The Accused Products further comprise the upper being light diffusing. By way
of example only, the Stride Rite Racer Lights Light-Up Sneaker depicted below comprises the
upper being light diffusing.
upper being light diffusing
diffused light
40. The Accused Products further comprise the illumination system being housed
within the footwear. By way of example only, the Stride Rite Racer Lights Light-Up Sneaker
depicted below comprises the illumination system being housed within the footwear.
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illumination system housed within the footwear
illumination system housed within the footwear
41. The Accused Products further comprise the plurality of illumination sources
emitting light, wherein the light first entering the batting and being diffused by the batting, the
light diffused by batting exits the batting, enters the upper, diffused again by the upper and then
exits the upper, the twice diffused light creating a visual impression of internal radiant
illumination across an outer surface area of the upper. By way of example only, the Stride Rite
Racer Lights Light-Up Sneaker depicted below comprises the plurality of illumination sources
emitting light, wherein the light first entering the batting and being diffused by the batting, the
light diffused by batting exits the batting, enters the upper, diffused again by the upper and then
exits the upper, the twice diffused light creating a visual impression of internal radiant
illumination across an outer surface area of the upper.
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internal radiant illumination across an outer surface area of the upper
42. On information and belief, Defendants had knowledge of Plaintiff's products
embodying the '038 Patent since at least 2013, when Plaintiff or its agents sent Stride Rite
representatives marketing materials and video links depicting Plaintiff's products and other
information about Plaintiff and its light-up shoe technology. Plaintiff repeatedly informed
Defendant that its products were, as applicable, patented or patent pending. In August 2013, and
in response to Plaintiff's solicitations, Wolverine sent Plaintiff an Unsolicited Idea Submission
form, seeking Firebug's consent to various terms and conditions in exchange for considering a
license to Firebug's light-up shoe technology.
43. In 2015, Plaintiff provided Stride Rite with physical samples of products
embodying the patented inventions of the '038 Patent. At all times, Defendants refused to license
Plaintiff's '038 Patent directed to light-up shoe technology.
44. On information and belief, Defendants had knowledge of the '038 Patent and of
their infringing conduct since at least January 29, 2016, when Plaintiff provided actual notice to
Defendant Stride Rite via written correspondence. Plaintiff's January 29, 2016 letter to Stride
Rite specifically identified the '038 Patent, enclosed a copy of the '038 Patent, and identified
representative Stride Rite shoes that infringed the '038 Patent. On or about May 3, 2016,
Plaintiff further provided claim charts to counsel for Stride Rite specifically identifying how
each limitation of Claim 1 of the '038 Patent was met by Stride Rite's infringing shoes. Stride
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Rite never responded to Plaintiff's May 3, 2016 correspondence and thereby refused to license
Plaintiff's '038 Patent directed to light-up shoe technology.
45. On information and belief, Wolverine had knowledge of all communications
between Firebug and Stride Rite regarding the '038 Patent.
46. On information and belief, since at least 2016, Wolverine has actively induced
Stride Rite to infringe the '038 Patent in this District and throughout the United States under 35
U.S.C. § 271(b). Wolverine has done so with knowledge of the '038 patent or with willful
blindness of the fact that it was inducing Stride Rite to directly infringe the '038 Patent.
47. On information and belief, Defendants' acts of infringement of the '038 Patent
have been egregious, willful, and/or intentional. Since at least January 29, 2016, Defendants
have refused to license Plaintiff's '038 Patent and continue to infringe the '038 Patent.
48. Firebug has suffered and is suffering damages as a result of Defendants' wrongful
acts in an amount yet to be determined. Defendants are liable to Firebug in an amount that
adequately compensates Firebug for Defendants' infringement, which, by law, cannot be less
than a reasonable royalty, together with interest and costs as fixed by this Court under 35 U.S.C.
§ 284.
49. Defendants' acts of infringement are causing irreparable harm to Firebug and will
continue to cause irreparable harm unless enjoined.
COUNT TWO: INFRINGEMENT OF THE '574 PATENT
50. Firebug realleges and incorporates by reference the above allegations.
51. Firebug has ownership of all rights in the '574 Patent, including the right to
exclude others from making, using, selling, and offering to sell the claimed invention throughout
the United States, the right to prevent others from importing the claimed invention into the
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United States, the right to enforce the '574 Patent, and the right to sue and recover damages for
past and future infringement thereof.
52. The '574 Patent is valid, enforceable, and was duly issued in full compliance with
Title 35 of the United States Code.
53. In addition to or in the alternative to the allegations in Count 1, above, and on
information and belief, Defendants have directly and/or indirectly infringed and continue to
infringe at least Claim 1 of the '574 Patent in this judicial District and elsewhere within the
United States without the consent or authorization of Firebug by making, using, selling, offering
to sell, and/or importing into the United States internally illuminated light diffusing footwear,
including, but not limited to the Accused Products.
54. The Accused Products are internally illuminated textile footwear comprising a
sole and an upper. By way of example only, the Stride Rite Ultimate Spider Man Sneaker
depicted below is an internally illuminated textile footwear comprising a sole and an upper.
upper
sole
55. The Accused Products further comprise an illumination system. By way of
example only, the Stride Rite Ultimate Spider Man Sneaker depicted below comprises an
illumination system.
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illumination system
illumination system
56. The Accused Products further comprise an illumination system comprising a
power source and a plurality of illumination sources. By way of example only, the Stride Rite
Ultimate Spider Man Sneaker depicted below comprises an illumination system comprising a
power source and a plurality of illumination sources.
power source
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plurality of illumination sources
57. The Accused Products further comprise a liner. By way of example only, the
Stride Rite Ultimate Spider Man Sneaker depicted below comprises a liner.
liner
58. The Accused Products further comprise an interfacing layer. By way of example
only, the Stride Rite Ultimate Spider Man Sneaker depicted below comprises an interfacing
layer.
interfacing layer
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59. The Accused Products further comprise the interfacing layer being adjacently
connected to the upper. By way of example only, the Stride Rite Ultimate Spider Man Sneaker
depicted below comprises the interfacing layer being adjacently connected to the upper.
interfacing layer
upper
60. The Accused Products further comprise the interfacing layer being positioned
between the liner and upper. By way of example only, the Stride Rite Ultimate Spider Man
Sneaker depicted below comprises the interfacing layer being positioned between the liner and
upper.
liner
interfacing layer
upper
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61. The Accused Products further comprise the plurality of illumination sources being
adjacently connected to the interfacing layer. By way of example only, the Stride Rite Ultimate
Spider Man Sneaker depicted below comprises the plurality of illumination sources being
adjacently connected to the interfacing layer.
plurality of illumination sources
interfacing layer
62. The Accused Products further comprise the plurality of illumination sources being
positioned between the interfacing layer and the upper. By way of example only, the Stride Rite
Ultimate Spider Man Sneaker depicted below comprises the plurality of illumination sources
being positioned between the interfacing layer and the upper.
plurality of illumination sources
interfacing layer
upper
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63. The Accused Products further comprise the upper being perimetrically connected
to the sole. By way of example only, the Stride Rite Ultimate Spider Man Sneaker depicted
below comprises the upper being perimetrically connected to the sole.
upper
sole
64. The Accused Products further comprise the liner being positioned interior to the
upper. By way of example only, the Stride Rite Ultimate Spider Man Sneaker depicted below
comprises the liner being positioned interior to the upper.
liner
upper
65. The Accused Products further comprise the upper being a light diffusing section.
By way of example only, the Stride Rite Ultimate Spider Man Sneaker depicted below comprises
the upper being a light diffusing section.
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upper being light diffusing
diffused light
66. The Accused Products further comprise the illumination system being housed
within the footwear. By way of example only, the Stride Rite Ultimate Spider Man Sneaker
depicted below comprises the illumination system being housed within the footwear.
illumination system
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illumination system
67. The Accused Products further comprise the plurality of illumination sources
emitting light, wherein the light enters the light diffusing section, then exits the upper as diffused
light, creating a visual impression of internal radiant illumination across an outer surface of the
upper. By way of example only, the Stride Rite Ultimate Spider Man Sneaker depicted below
comprises the plurality of illumination sources emitting light, wherein the light enters the light
diffusing section, then exits the upper as diffused light, creating a visual impression of internal
radiant illumination across an outer surface of the upper.
internal radiant illumination across an outer surface of the upper
68. On information and belief, Defendants had knowledge of Plaintiff's products
embodying the '574 Patent since at least 2015, when Plaintiff provided Stride Rite with physical
samples of products embodying the patented inventions of the '574 Patent. At all times, Stride
Rite refused to license Plaintiff's '574 Patent directed to light-up shoe technology.
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69. On information and belief, Defendants had knowledge of the '574 Patent and of
their infringing conduct since at least May 3, 2016, when Firebug provided claim charts to Stride
Rite specifically identifying how each limitation of Claim 1 of the '574 Patent was met by Stride
Rite's infringing shoes. Defendants never responded to Plaintiff's May 3, 2016 correspondence
and thereby refused to license Plaintiff's '574 Patent directed to light-up shoe technology.
70. On information and belief, Wolverine had knowledge of all communications
between Firebug and Stride Rite regarding the '574 Patent.
71. On information and belief, since at least 2016, Wolverine has actively induced
Stride Rite to infringe the '574 Patent in this District and throughout the United States under 35
U.S.C. § 271(b). Wolverine has done so with knowledge of the '574 patent or with willful
blindness of the fact that it was inducing Stride Rite to directly infringe the '574 Patent.
72. On information and belief, Defendants' acts of infringement of the '574 Patent
have been egregious, willful, and/or intentional. Since at least May 3, 2016, Defendants have
refused to license Plaintiff's '574 Patent and continue to infringe the '574 Patent.
73. Firebug has suffered and is suffering damages as a result of the Defendants'
wrongful acts in an amount yet to be determined. Defendants are liable to Firebug in an amount
that adequately compensates Firebug for Defendants' infringement, which, by law, cannot be less
than a reasonable royalty, together with interest and costs as fixed by this Court under 35 U.S.C.
§ 284.
74. Defendants' acts of infringement are causing irreparable harm to Firebug and will
continue to cause irreparable harm unless enjoined.
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JURY DEMAND
75. Shoes by Firebug LLC hereby requests a trial by jury pursuant to Federal Rule of
Civil Procedure 38.
PRAYER FOR RELIEF
Shoes by Firebug LLC requests the Court find in its favor and against Defendants, and
grant it the following relief:
A. A judgment that Defendants have infringed one or more claims of the '038 Patent and/or the '574 Patent, directly and/or indirectly, either literally and/or under the doctrine of equivalents;
B. A judgment and order requiring Defendants to account for and pay to Plaintiff all damages to and costs incurred by Plaintiff because of Defendants' infringing activities and other conduct complained of herein;
C. A judgment and order requiring Defendants to pay Plaintiff damages under 35 U.S.C. § 284, including up to treble damages for willful infringement of the '038 Patent and the '574 Patent and any royalties determined to be appropriate;
D. A finding that this is an exceptional case and a judgement and order awarding Plaintiff its reasonable attorneys' fees;
E. A permanent injunction enjoining Defendants and its officers, directors, agents, servants, employees, affiliates, divisions, branches, subsidiaries, parents, and all others acting in concert or privity with Defendants from direct and/or indirect infringement of the '038 Patent and the '574 Patent pursuant to 35 U.S.C. § 283;
F. A judgment and order requiring Defendants to pay Plaintiff pre-judgment and post-judgment interest on damages awarded; and
G. Such other and further relief as the Court may deem just and proper under the circumstances.
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Dated: September 6, 2017 Respectfully submitted,
GRIFFITH BATES CHAMPION & HARPER LLP
/s/ Austin Champion Austin Champion Texas Bar No. 24065030 [email protected] --- Casey Griffith Texas Bar No. 24036687 [email protected]
5910 N. Central Expressway, Suite 1050 Dallas, Texas 75206 214-238-8400 | Main 214-238-8401 | Fax
-and-
STANDLY | HAMILTON, LLP
Christopher S. Hamilton Texas Bar No. 24046013 [email protected] --- Jodie Slater Hastings Texas Bar No. 24046862 [email protected]
325 N. St. Paul Street, Suite 3300 Dallas, Texas 75201 214-234-7900 | Main 214-234-7300 | Fax
CERTIFICATE OF SERVICE
The undersigned certifies that all counsel of record who have consented to electronic service were served with a copy of this document through this Court’s CM/ECF system and pursuant to the local rules on this 6th day of September, 2017.
/s/ Austin Champion Austin Champion
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