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Creation Supply, Inc. v. Alpha Art Materials, Co., Ltd.

United States District Court, Ninth Circuit

October 21, 2013


RICHARD J. VANGELISTI, Vangelisti Law Firm LLC, Portland, OR,

EDWARD L. BISHOP, NICHOLAS S. LEE, Bishop & Diehl, Ltd, Schaumburg, IL, Attorneys for Creation Supply, Inc.

SUSAN D. PITCHFORD, ROBERT H. LYMAN, Chernoff Vilhauer McClung and Stenzel, LLP, Portland, OR, Attorneys for Alpha Art Materials, Co., LTD.


ANNA J. BROWN, District Judge.

This matter comes before the Court on Plaintiff's Motion (#68) for Summary Judgment on Count I of its Complaint. For the reasons that follow, the Court DENIES Plaintiff's Motion.


Plaintiff Creation Supply, Inc. (CSI) is an Illinois corporation. Defendant Alpha Art Materials, Co., Ltd., is a Korean corporation. CSI and Alpha entered into a Memorandum of Understanding (MOU) on approximately April 1, 2011. Pursuant to the MOU, CSI had the exclusive right to purchase Mepxy markers from Alpha and to sell them in certain territories in the United States. Accordingly, CSI purchased Mepxy markers from Alpha and sold Mepxy markers in the United States.

On April 25, 2012, CSI was sued in the District of Oregon in Too Marker Products, Inc., and Imagination International, Inc. v. Creation Supply, Inc., and John Gragg, Case No. 3:12-cv-00735-BR (the Too Marker lawsuit). The Too Marker lawsuit included Too Marker's assertion that, among other things, CSI's sale of Mepxy markers infringes Too Marker's registered trade dress. On or about July 26, 2013, Too Marker and Imagination International, Inc., accepted Alpha's Offer of Judgment (#91), and on August 19, 2013, a Settlement Order (#92) was entered dismissing without prejudice all claims asserted by Too Marker and Imagination International against CSI as well as the counterclaims that CSI asserted against Too Marker and Imagination International. The only claims remaining in the Too Marker lawsuit are the third-party claims of CSI against Alpha.

On July 11, 2012, CSI filed this action in the Northern District of Illinois, Eastern Division, which transferred this action sua sponte to the District of Oregon on June 19, 2013. In this action CSI asserts Alpha breached the Warranty of Title and Against Infringement (Count I) and Implied Indemnity (Count II), and, as noted, CSI's instant Motion seeks summary judgment on Count I.


Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Washington Mut. Ins. v. United States, No. 09-36109, 2011 WL 723101, at *8 (9th Cir. Mar. 3, 2011). See also Fed.R.Civ.P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id. "This burden is not a light one.... The non-moving party must do more than show there is some metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)(citation omitted).

A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 (9th Cir. 1982)).

A "mere disagreement or bald assertion" that a genuine dispute as to a material fact exists "will not preclude the grant of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1987)). See also Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir. 1990). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).

The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a factual dispute would not affect the ...

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