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VASQUEZ v. THALER
WILLIAM HAYES, District Judge
The matter before the Court is Plaintiffs' Motion Seeking Entry of Money Judgments and a Permanent Injunction or Alternatively Partial Judgment Pursuant to Rule 54(b) Including a Permanent Injunction. (Doc. # 172).
BACKGROUND
On May 26, 2006, Plaintiffs initiated this action by filing the Complaint. (Doc. # 1). The Complaint alleges Plaintiff Dennis Michael Krawchuck owns Plaintiff RPA International Pty Ltd. and Plaintiff Nufurn, Inc. (collectively "Plaintiffs"). The Complaint alleges that Krawchuck is the owner of U.S. Patent No. 6, 969, 113 ("the 113 patent"), entitled "Folding Chair with Metal Inserts," which was issued to Krawchuck on November 29, 2005. Id. at ¶ 4. The Complaint alleges that the 113 patent concerns a resin folding chair invented by Krawchuck known as the "Gladiator chair." Id. The Complaint alleges Defendant Kok Cheong Soo is a director of Defendant BZ Global Sdn. Bhd, and Defendant BZ Global (H.K.) Limited (the "BZ Defendants"). Id. The Complaint alleges that Soo and the BZ Defendants infringed the 113 patent "by knowingly and purposefully importing, using, offering to sell, and/or selling infringing chairs within the United States" and by inducing others to do the same. Id. at ¶ 51-52. The Complaint alleges that Plaintiffs have been harmed by this infringement and that they will continue to be harmed unless the Court enters an injunction which bars Soo and the BZ Defendants from further infringement. Id. at ¶ 53. The Complaint also seeks damages to compensate Plaintiff for lost profits, as well as treble damages pursuant to 35 U.S.C. § 284, and attorneys' fees and costs. Id.
On May 25, 2007, Defendants PRE Sales, Inc. and Segal were dismissed from the action. (Doc. # 72). On May 31, 2007, Defendant Soo filed an Answer, Affirmative Defenses, and Counterclaim. (Doc. # 74). The Answer alleges that Plaintiffs RPA and Nufurn lack standing to sue, that the patent is invalid, that the patent is being misused, that Plaintiffs are barred from recovery by unclean hands, that Soo is authorized to use the patent, that Defendants have not infringed, that Plaintiffs have not lost profits, and that the patent is unenforceable. Id.
The Counterclaim alleges that Soo was an inventor of the patent, and that he reached an agreement with RPA to receive five percent of the sales price of the newly designed chairs, and ten percent if he was the source of the sale. Id. at ¶ 23. The Counterclaim alleges that Soo assisted RPA in seeking patent protection for the Gladiator chair with the understanding that he would be listed as an inventor. Id. at ¶ 24. The Counterclaim alleges that Soo is "the actual inventor and designer" of the Gladiator chair. Id. The Counterclaim alleges that Krawchuck listed himself as the sole inventor of the Gladiator chair, even though he was not, in fact, the inventor. Id. The Counterclaim alleges that RPA failed to make payments to Soo pursuant to the parties' agreement. Id.
The Counterclaim alleges the following claims for relief: (1) correction of inventorship, which seeks a declaration that Soo and/or Defendant Chee Choon Cheah are the inventors of the 113 patent pursuant to 35 U.S.C. § 256; (2) declaration and transfer of ownership, which seeks a declaration that Soo and/or Cheah are the owners of the 113 patent; (3) declaration that the 113 patent is invalid pursuant to 35 U.S.C. § 101, et seq., on grounds that the omission of Soo and Cheah as inventors was done with deceptive intent; (4) declaration of unenforceability, on grounds that Krawchuck deceived the Patent and Trademark Office by omitting to reference Soo and Cheah's roles as inventors; (5) infringement of the 113 patent on grounds that RPA and Krawchuck have unlawfully offered for sale, sold, manufactured and used the 113 patent; (6) breach of contract on grounds that RPA failed to pay Soo five percent of the price of tables and chairs purchased by RPA and an additional ten percent of the price of sales if Soo was the source of the sales pursuant to the parties' agreement; (7) unjust enrichment on grounds that Soo and/or Cheah conferred a substantial benefit on Krawchuck by creating the Gladiator chair, and that it is unjust for Plaintiffs to retain this benefit without conferring any benefit upon Soo or Cheah; (8) quantum meruit/misappropriation of ideas/breach of implied contract on grounds that Plaintiffs misappropriated the ideas of Soo and Cheah, and profited therefrom; (9) federal unfair competition on grounds that Plaintiffs made misrepresentations with respect to the 113 patent which violate the Lanham Act, 15 U.S.C. section 1125; (10) unfair competition/false advertising in violation of sections 17200 and 17500 of the California Business and Professions Code; and (11) interference with contract and actual and/or prospective economic advantage on grounds that Plaintiffs/Counterclaim Defendants are aware of their business and economic and contractual relationships with Defendants/Counterclaim Plaintiffs, and "have charged one or more of the Counterclaim Plaintiffs and their customers with infringing the Mr. Krawchuck patent, knowing that such patent is invalid, unenforceable, non-infringed, and in fact rightfully owned by Soo and/or Mr. Cheah as the true inventor." Id., ¶¶ 98-99.
On October 19, 2007, an order of default was entered as to Defendants Compact Intl Inc., BZ Global Sdn Bhd, and BZ Global HK Limited. (Doc. # 99). On January 31, 2008, an order of default was entered as to Defendants Johnson and Cheah. (Doc. # 110). On January 31, 2008, the Court held that default judgment against Defendants Compact Intl Inc., BZ Global Sdn Bhd, BZ Global HK Limited, Johnson and Cheah was not proper "at this stage of the proceedings because there are claims proceeding against Defendant Kok Cheong Soo." Id. at 6.
On July 28, 2008, Soo, the only remaining and active Defendant in this case, filed a motion for summary judgment. (Doc. # 112). The motion for summary judgment stated in full:
Defendant's Answer, Affirmative Defenses and Counterclaims were filed on September 13, 2006 and subsequently on May 31, 2007 the Amended Answer, Affirmative Defenses and Counterclaims were filed.
Defendant has been hurt by this action of Plaintiffs and respectfully moves this Court for summary judgment on all Counterclaims against Plaintiffs.Id. at 1-2. On November 3, 2008, the Court issued an order denying Soo's motion for summary judgment. (Doc. # 118). The Court found that, other than the vague assertion that "Defendant has been hurt," the motion for summary judgment did not identify any basis in fact or in law, undisputed or otherwise, which would justify granting summary judgment. Id. at 2. The Court concluded that Soo has failed to satisfy his initial burden of establishing the absence of a genuine issue of material fact as required by Rule 56 of the Federal Rules of Civil Procedure. Id.
On April 27, 2009, Plaintiffs filed their Renewed Motion for Summary Judgment, pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. (Doc. # 143). On July 14, 2009, the Court granted Plaintiffs' Motion Renewed Motion for Summary Judgment. (Doc. # 149). The Court held that Soo had willfully infringed on Plaintiffs' patent, and granted summary judgment in favor of Plaintiffs and against Soo on that claim. Id. at 11-12. The Court granted summary judgment in favor of Plaintiffs and against Soo on his counterclaims for his first through fifth claims for correction of inventorship, declaration and transfer of ownership, declaration of invalidity, declaration of unenforceability, and infringement. Id. at 12. The Court held that "Soo does not dispute that these claims rely on Soo's assertion that he is an inventor of [the Gladiator chair,] yet Soo has failed to submit any evidence that Soo is" in fact the inventor. Id. The Court also granted summary judgment in favor of Plaintiffs and against Soo on the ninth claim for unfair competition under federal law. Id. As to that claim, the Court held that there was no genuine issue of material fact as to whether Plaintiffs had misrepresented their rights under the 113 patent. Id. at 13. The Court declined to exercise supplemental jurisdiction over Soo's state law counterclaims because it had already dismissed his federal claims. Id. On July 16, 2009 a judgment was entered on the claims that were adjudicated by the Court's order. (Doc. # 150).
On July 30, 2009, Plaintiffs filed their Motion to Revise the Court's Summary Judgment Order and to Enter a Permanent Injunction. (Doc. # 151). Pursuant to the Local Rules of Civil Procedure, Soo's opposition was due on August 24, 2009. On October 23, 2009, Soo filed an Ex Parte Motion for Extension of Time to File a Response. (Doc. # 154). Soo stated that he is proceeding pro se and only learned of the pending Motion to Revise the Court's Summary Judgment Order and to Enter a Permanent Injunction on October 17, 2009, because he did not receive the Notice of Electronic Filing. Id. at 2. Soo sought an extension until December 14, 2009 to file his opposition. Id. at 3. The Court granted Soo's motion and ordered Plaintiffs to file any reply to Soo's opposition by December 21, 2009. (Doc. # 156). Soo filed a response and more than 500 pages of exhibits on December 14, 2009. (Docs. # 156-163). Plaintiffs filed a reply on December 21, 2009. (Doc. # 165).
After reviewing Soo's filings, the Court concluded that one of Soo's filings, a Proposed Motion for Relief from Summary Judgment Order (Doc. # 163) should be construed as a Motion for Reconsideration of the Court's order granting summary judgment in favor of Plaintiffs and against Soo. On January 25, 2010, the Court ordered Plaintiffs to file a response on or before Tuesday, February 9, 2010 and gave Soo until February 23, 2010 to file any reply. (Doc. # 169).
On March 10, 2010, the Court issued an order denying Soo's Motion for Reconsideration and granting in part and denying in part Plaintiffs' Motion to Revise the Court's Summary Judgment Order and to Enter a Permanent Injunction. (Doc. # 170). The Court vacated the judgment which was entered on July 16, 2009. Id. at 11. Because the prior judgment was entered in error prior to the termination of the proceedings, the Court held that a permanent injunction was not appropriate at that stage in the proceedings. Id. The Court ordered the parties to file any further motions within 60 days of the date of the order. Id. at 12.
On April 27, 2010, Plaintiffs filed their Motion Seeking Entry of Money Judgments and a Permanent Injunction or Alternatively Partial Judgment Pursuant to Rule 54(b) Including a Permanent Injunction. (Doc. # 172). The submission date for the motion was June 7, 2010. Id. at 1. Pursuant to the Local Rules of Civil Procedure, any opposition was due on May 24, 2010. To date, no opposition has been filed. Plaintiffs had initially requested oral argument, but withdrew their request on May 28, 2010 due to the lack of opposition. (Doc. # 173).
ANALYSIS
Plaintiffs seek damages against the defaulted Defendants, treble damages against Soo and Soo's companies, attorneys' fees from Soo and Soo's companies, costs, and a permanent injunction against all Defendants. (Doc. # 171-1 at 7).
I. Default Judgment and Damages As to Defaulted Defendants
Plaintiffs contend that default judgment and damages are appropriate as to the defaulted Defendants, Compact Intl Inc., BZ Global Sdn Bhd, BZ Global HK Limited, Johnson and Cheah, because Plaintiffs will be "without other recourse for recovery" if default judgment is not granted. Id. at 16. Plaintiffs contend that the amount of money requested is reasonable in light of the defaulted Defendants' repeated and willful commercial infringement of Plaintiffs' patent. Id. at 17. Plaintiffs contend that damages for "lost profit on known infringing sales" are calculable without an evidentiary hearing. Id. Plaintiffs contend it is clear from the record that the defaulted Defendants did not default due to excusable neglect because all of the Defendants entered appearances and were warned by the magistrate judge and this Court that failure to comply with discovery orders would result in default. Id. at 22. Plaintiffs contend that the defaulted Defendants' willful default has made it impossible to resolve the case on the merits and that Plaintiffs should therefore receive default judgment and damages. Id. Plaintiffs contend that damages of $51,205 are proper because Plaintiffs can establish the number of infringing chairs the defaulted Defendants imported as well as the amount of lost profit per chair. Id. at 24. Plaintiffs contend Compact Intl, Johnson, and Cheah imported 2,660 infringing shares. Id. at 25. Plaintiffs contend they lost $19.25 in profit for each infringing chair. Id.
"The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quotation omitted). "Plaintiff is required to prove all damages sought in the complaint. In addition, `[a] judgment by default shall not be different in kind [or] exceed in amount that prayed for in the [complaint].' In determining damages, a court can rely on the declarations submitted by the plaintiff or order a full evidentiary hearing. . . . If proximate cause is properly alleged in the complaint, it is admitted upon default. Injury is established and plaintiff need prove only that the compensation sought relates to the damages that naturally flow from the injuries pled." Phillip Morris USA, Inc. v. Castworld Prods., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (citations omitted).
On October 17, 2007, the Court entered default against Defendants Compact Intl Inc, BZ Global Sdn Bhd, and BZ Global Limited pursuant to Federal Rule of Civil Procedure 55(a) for failure to defend. (Doc. # 98). On January 31, 2008, the Court entered default against Johnson and Cheah for failure to comply with discovery orders pursuant to Federal Rule of Civil Procedure 37(b)(2)(E) and Local Civil Rule 83.1. (Doc. # 110).
In support of its request for damages, Plaintiffs submitted the Declaration of Dennis M. Krawchuk, who states that prior to Defendants' infringement, Plaintiffs received approximately $19.25 in profit per chair sold. (Doc. # 172-3 at 2). Krawchuk explains how he arrived at that figure, describing in detail the cost per chair of production and shipping and subtracting these costs from the price Plaintiffs receive per chair. Id. at 2-5. Business records attached to Krawchuk's declaration confirm the numbers Krawchuck uses. See Doc. # 172-3, Ex. 1-6. Plaintiffs also submitted the declaration of Plaintiffs' Counsel, Merrit Blakeslee, who states that shipment records show that Compact International shipped 532 cartons of infringing chairs which each contain five chairs, for a total of 2,660 chairs. (Doc. # 172-4 at 2). The shipment records which are attached to the declaration confirm those figures. See Doc. # 172-4, Ex. 1-5). Plaintiffs have established that damages are appropriate against Compact International in the amount of $51,205.
II. Damages against Soo
A. Compensatory Damages
Plaintiffs contend that there are no disputed issues of material fact as to the amount of damages Soo caused in lost profits through his infringing sales. Id. at 26. Plaintiffs contend shipment records establish that "Soo and his companies imported and sold 41,500 infringing chairs into the United States from approximately 2005 to July 2009." Id. Plaintiffs contend that their estimated profits during this period were approximately $14 per chair. Id. Based on these figures, Plaintiff contends it is entitled to $581,000 in damages for lost profits. Id.
The Court previously ruled that Soo willfully infringed Plaintiffs' patent, but has not yet addressed damages. The issue before the Court at this stage of the proceedings is whether Plaintiffs are entitled to summary judgment as to monetary damages against Soo.
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed.R.Civ.P. 56(e)).
In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
Soo did not file an opposition to the motion for summary judgment as to damages. However, that does not change Plaintiffs' burden. "Regardless of whether . . . [the nonmoving party] responded at all[] to [a] motion for summary judgment," a court may not grant summary judgment unless the moving party "affirmatively showed" that it is entitled to judgment as a matter of law. Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003).
In support of its motion, Plaintiffs rely on the Krawchuck's declaration and the Blakeslee declaration. Krawchuck states that between 2005 and 2009, the profit per chair fell from $19.26 to an average of approximately $14 per chair. (Doc. # 172-3 at 6). Blakeslee states Soo's companies shipped 8,300 cartons of infringing chairs which each contain 5 chairs for a total of 41,500 chairs. (Doc. # 173-4 at 2). These 8,300 cartons were split up into 17 shipments over a four-year period. Id. In addition to the two BZ companies, Blakeslee states Soo was also using a third company, Global Suppliers Enterprise, which Plaintiff asserts is the same entity as BZ Global Sdn Bhd because the companies share an address and both shipped infringing chairs from the same port in Yantian, China, to Empire Distributors in the United States. Id. at 4. Shipment records, including commercial invoices and bills of landing, attached to Blakeslee's declaration show each shipment and corroborate Blakeslee's assertions. See Doc. # 173-4, Ex. 1-5.
Based on this evidence, the Court finds that Plaintiffs have met their burden of establishing that there is no genuine issue of material fact as to whether Plaintiffs are entitled to $581,000 in damages against Soo for the infringing sales he conducted through his companies.
B. Treble Damages
Plaintiffs contend treble damages are appropriate against Soo pursuant to 35 U.S.C. § 284 because the Court previously held that Soo was aware of the patent on the design of the chairs and willfully infringed upon it. (Doc. # 172-1 at 23). Plaintiffs contend Soo's assertion of meritless defenses and his repeat infringement of the patent even after this Court had granted summary judgment against him merit treble damages. Id. Plaintiffs contend Soo's conduct during this litigation, including untimely responses and "meritless and voluminous" submissions, also mitigate in favor of "enhancing damages." Id.
Pursuant to 35 U.S.C. § 284,
Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed.
In determining whether to exercise discretion to award increased damages pursuant to 35 U.S.C. § 284, courts must weigh factors
including whether there was deliberate copying, whether the infringer knew of the patent and had a good faith belief that it was invalid, the infringer's behavior as a party to the litigation, the defendant's size and financial condition, and the closeness of the willfulness issue.Amsted Indus. v. Buckeye Steel Castings Co., 24 F.3d 178, 183 (Fed. Cir. 1994).
In this case, Soo conceded he was aware of the patent. See Doc. # 163 (Soo's Motion for Reconsideration). Soo made repeated baseless assertion that he, not Krawchuck, was the true inventor of the chairs in question. See Doc. # 144 (Soo's Opposition to Plaintiff's Renewed Motion for Summary Judgment), Doc. # 149 (Order granting summary judgment), Doc. # 163 (Soo's Motion for Reconsideration), Doc. # 171 (Order denying Soo's Motion for Reconsideration). The Court previously found that Soo's infringement was willful. After the Court ruled that Soo had willfully infringed upon the patent and rejected Soo's claim of inventorship, Soo continued to ship infringing chairs to the United States. See Doc. # 172-1, Ex. B (shipping records for shipment of 532 containers of chairs arriving December 2009).
In light of this evidence, the Court finds that willfulness is not a close question. Although Soo asserted that he believed he was the true inventor of the chairs and that the patent was invalid, the Court finds that the evidence that Soo filed in support of these claims and Soo's continued infringement after losing at summary judgment do not evince a "good faith belief" that the patent was invalid. There is no direct evidence before the Court of Soo's financial condition, however, in light of the extent of Soo's infringement, it appears to the Court that Soo has made a significant profit from his infringement. Although the Court finds that Soo made baseless assertions and filed meritless motions, creating an unnecessary burden on Plaintiffs and on the Court, the Court does not give this factor significant weight because Soo was proceeding pro se.
After weighing the factors outlined in Amsted Industries, 24 F.3d at 183, the Court finds that treble damages are appropriate and awards plaintiff increased damages of $1,162,000 for a total damages award of $1,743,000.
III. Attorneys' Fees
Plaintiffs contend that "Soo's litigation misconduct, vexatious and unjustified litigation, as well as his blatant willful infringement overwhelmingly justify imposition of attorney's fees against him and his companies." (Doc. # 172-1 at 24). Plaintiffs contend that Soo's filings amount to a "document dump" which forced Plaintiffs to waste time "sifting through" his papers to "discern any hint of merit therein." Id. Plaintiffs contend that Soo's continued importation of chairs during the proceedings also supports awarding attorneys' fees. Id. Plaintiffs request "that the Court award Plaintiffs reasonable attorneys' fees, the amount to be shown by declaration upon granting of this motion." Id.
Pursuant to 35 U.S.C. § 285, "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party." In evaluating a motion for attorneys' fees, district courts must first determine whether a case is exceptional and then exercise its discretion in determining whether to award attorneys' fees. Nilssen v. Osram Sylvania, Inc., 528 F.3d 1352, 1357 (Fed. Cir. 2008). "In determining whether to award attorney fees, courts must weigh factors such as degree of culpability, closeness of the questions, and litigation behavior." Id.
This Court previously determined that Soo's infringement, conducted through his two BZ Companies, was willful. See Doc. # 149. The Court concludes that the issues in this case were not close and that it was clear that Soo willfully and repeatedly infringed Plaintiffs' patent. As to Soo, therefore, the Court finds that attorney's fees are appropriate. However, Plaintiffs do not present any argument or evidence as to why the BZ Companies should be required to pay attorneys' fees. The Court therefore denies the motion as to the BZ Companies.
IV. Permanent Injunction
Plaintiffs contend that they are entitled to a permanent injunction against all Defendants pursuant to Federal Rule of Civil Procedure 65 and 35 U.S.C. § 283. (Doc. # 172-1 at 10). Plaintiffs contend Defendants infringing chairs are "inferior to Plaintiffs" genuine chairs. Id. at 11. Plaintiffs contend that they have suffered irreparable injury from Defendants' infringement due to "loss of goodwill, market position, and revenue." Id. Plaintiffs state that they have no desire to license the patent. Id. Plaintiffs contend monetary damages will be insufficient to compensate them because the "bulk of [Defendants'] assets are located abroad" and it is not clear whether Plaintiffs will be able to collect. Id. at 12. Plaintiffs contend that a permanent injunction will not cause Defendants any hardship whereas denying a permanent injunction will cause Plaintiffs hardship. Id. Plaintiffs contend that the public will not be harmed because the chairs are available in the marketplace and "[a]n injunction will not frustrate any important need for the invention." Id.
Plaintiffs have attached a proposed injunction to their motion. See id., Ex. A. The proposed injunction permanently enjoins all Defendants from "directly or indirectly infringing on any claim of the `113 patent, until the patent expires, by making, using, offering to sell, importing, or selling chairs employing the design of the imported chairs found to infringe the claims of the `113 patent. . . ." Id., Ex. A at 1. The proposed injunction also permanently enjoins all Defendants from "making, using, offering to sell, importing or selling . . . colorable imitations of the infringing chairs." Id. In addition to enjoining Defendants, the injunction enjoins the "Defendants' officers, agents, servants, employees, attorneys, and persons in active concert or participation" with Defendants who have actual notice of the injunction. Id. at 2.
Federal Rule of Civil Procedure 65 governs injunctions and restraining orders. Rule 65(d), the only portion of the rule which applies to permanent injunctions, sets requirements for all orders granting injunctions. Specifically, "[e]very order granting an injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required." Fed.R.Civ.Pro. 65(d)(1). A statute also governs the issuance of injunctions in patent cases and states that a court "may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. § 283.
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Defendants have repeatedly infringed on Plaintiffs' patents over a nearly five-year period. Plaintiffs have offered evidence that in addition to losing sales as a result of the infringing chairs, they are also receiving a lower profit-per-chair as a result of the competition from inferior infringing chairs. See Krawchuck Decl., Doc. # 172-3 at 6. Despite this litigation, Defendants have continued to infringe on Plaintiffs' patent. The Court finds that Plaintiffs' loss of good will, market position, and revenue constitutes irreparable harm caused by Defendants repeated and willful infringement.
Although monetary damages could compensate for some of this past damage, Plaintiffs are unlikely to be able to recover damages awarded by this Court because Defendants are located overseas or have defaulted in this litigation. Further, it is difficult to measure and prove monetary damages for lost profits resulting from decreased profit-per-chair or for reputational damage. Where "a calculation of damages is inherently speculative" or difficult to establish, the Federal Circuit has held that an injunction is an appropriate remedy to protect a patent holder from loss. See Broadcom Corp. v. Qualcomm, Inc., 543 F.3d 683, 703-04 (Fed. Cir. 2008).
Denying a permanent injunction will result in hardship to Plaintiffs while granting an injunction will not result in hardships to Defendants. Failure to grant an injunction will make it more difficult for Plaintiffs to prevent further infringement of their patent. The only harm to Defendants will be the loss of income from selling the infringing chairs, however "[o]ne who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against continuing infringement destroys the business so elected." See id.
A permanent injunction will not harm the public interest. Plaintiffs are producing and selling the patented chairs, so the chairs are available to consumers.
The Court finds that all four factors weigh in favor of granting the proposed injunction Plaintiffs have submitted.
Plaintiffs' proposed injunction is limited to chairs which were previously adjudicated to infringe upon the patent and colorable imitations of the infringing chairs. The Court finds that the proposed injunction is sufficiently specific to make clear what conduct is enjoined. See Additive Controls Measurements Sys. v. Flowdata, 916 F.2d 476, 480 (Fed. Cir. 1993). In addition to enjoining Defendants, Plaintiffs' proposed injunction also enjoins "Defendants' officers, agents, servants, employees, attorneys, and upon those persons in active concert or participation with them" who have actual notice of the injunction from producing the infringing chairs or colorable imitations of the infringing chairs. The Court finds that enjoining this limited category of non-parties is appropriate. See Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 11A Federal Practice and Procedure § 2956 (2d ed. 1995) ("Nonparties with notice of the order [who aid, abet, assist or act in concert with a person who has been enjoined] can be held in contempt even though they were not named or served" in the lawsuit.); see also Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d 35 (1st Cir. 2000).
The Court therefore finds that entry of the proposed injunction is appropriate.
V. Costs
Plaintiffs contend that they are entitled to costs pursuant to 35 U.S.C. § 284. (Doc. # 172-1 at 24).
Pursuant to 25 U.S.C. § 284, "upon finding for the claimant the court shall award . . . costs as fixed by the court." The Court has found in favor of Plaintiffs and against all Defendants. Plaintiffs are awarded costs.
CONCLUSION
IT IS HEREBY ORDERED that:
(1) Plaintiffs' Motion Seeking Entry of Money Judgments and a Permanent Injunction or Alternatively Partial Judgment Pursuant to Rule 54(b) Including a Permanent Injunction (Doc. # 172) is GRANTED IN PART and DENIED IN PART. The motion is denied as to attorney's fees from BZ Global Sdn Bhd and BZ Global HK Limited and otherwise granted.
(2) Plaintiffs are awarded damages against Compact International in the amount of $51,205 and against Kok Cheong Soo in the amount of $1,743,000.
(3) The Court will enter the proposed injunction attached to Plaintiffs' motion. No later than fourteen (14) days from the date of this Order, Plaintiffs shall email a copy of this proposed injunction to the Court which does not contain the word "proposed" in the caption in WordPerfect or Word format to efile_hayes@casd.uscourts.gov.
(4) No later than fourteen (14) days from the date of this Order, Plaintiffs shall email a proposed judgment consistent with this Order in WordPerfect or Word format to efile_hayes@casd.uscourts.gov.
(5) The Court finds that Plaintiffs are entitled to attorneys' fees. No later than twenty-one (21) days from the date of this Order, Plaintiffs shall file a motion for the specific amount of attorney's fees which it is seeking in this matter.
Id.
Vasquez essentially insists that the district court erred in its application of the Strickland standard because it failed to consider how the evidence of his family life and background would have affected the totality of the evidence presented to the sentencing jury regarding his culpability. He contends that, contrary to Texas and federal law, the district court employed several erroneous modes of analysis, including (1) improperly "weighing" mitigating evidence against aggravating evidence; (2) improperly assessing the evidence of Vasquez's childhood and mental impairments in a "threshold-based analysis" against the depravity suffered by the successful habeas petitioners in Wiggins and Rompilla; (3) improperly discounting the evidence of mental impairment as "double-edged"; and (4) misconstruing the petitioner's standard of proof when it held that Vasquez had to establish prejudice by "clear and convincing evidence." We address each contention in turn.
As a threshold matter, we note that Vasquez's claim that the district court misapplied Texas law must implicate a violation of a federal right if it is to be cognizable on federal habeas review. Hankins v. Quarterman, 288 Fed.Appx. 952, 960 n. 28 (5th Cir. 2008) (citing Smith v. McCotter, 786 F.2d 697, 702-03 (5th Cir. 1986) (citing Baldwin v. Blackburn, 653 F.2d 942, 948 (5th Cir. 1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475, reh'g denied, 457 U.S. 1112, 102 S.Ct. 2918, 73 L.Ed.2d 1323 (1982) (holding that a failure to comply with state law requirements presents a federal habeas issue only if it involves federal constitutional issues))). The Texas mitigation special issue instruction tracks the constitutional requirement articulated in Penry v. Lynaugh, in which the Court held that a defendant has a right to "[sentencing] instructions informing the jury that it could consider and give effect to the mitigating evidence of [petitioner's] [mental infirmities] and . . . background by declining to impose the death penalty, [as a] . . . . vehicle for expressing its `reasoned moral response' to that evidence in rendering its sentencing decision." Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Inasmuch as the Texas mitigation special issue was modeled on Penry to ensure compliance with federal constitutional law, Vasquez's claim is cognizable on federal habeas review.
i. Improper weighing of evidence
The Supreme Court has long recognized that a state may employ any procedure it chooses to administer the death penalty as long as that procedure meaningfully "limit[s] the class of murderers to which the death penalty may be applied." Once this limiting condition has been satisfied, all states ask "the sentencer . . . to determine whether a defendant thus found eligible for the death penalty should in fact receive it. Most States channel this function by specifying the aggravating factors (sometimes identical to the eligibility factors) that are to be weighed against mitigating considerations." State practices diverge here, as some permit the sentencer to consider aggravating circumstances that are not included in the list of aggravating circumstances that made the defendant death-penalty eligible initially. Regardless of the differences between state practices, however, the only federal constitutional requirement is that "in all capital cases the sentencer must be allowed to weigh the facts and circumstances that arguably justify a death sentence against the defendant's mitigating evidence." To comply with this standard, Texas law instructs the sentencer to consider "[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed."
Brown v. Sanders, 546 U.S. 212, 216, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006) (analyzing different state capital sentencing schemes in the context of determining "what happens when the sentencer imposes the death penalty after at least one valid eligibility factor has been found, but under a scheme in which an eligibility factor or a specified aggravating factor is later held to be invalid.").
Id.
Id. (observing same).
Id. 216-17, 126 S.Ct. 884.
TEX.CRIM. PROC. CODE ANN. art 37.071 § 2(e) (Vernon 1997).
This was precisely the analysis undertaken by the district court in this case. After undertaking an extensive review of the evidence in mitigation, the court went on to note the other evidence put before the jury regarding (1) the victim's youth; (2) the undisputed fact that she died while in Vasquez's sole care from blows to the head that "were equivalent to a 65 m.p.h. car accident;" (3) the fact that she had lethal quantities of cocaine in her system; (4) the significant evidence of some type of sexual assault; and (5) evidence of other wounds on her body that pointed to a history of physical abuse. To guide its assessment of the post-conviction record of evidence in aggravation and in mitigation, the district court properly looked to cases in which the Supreme Court had applied this very standard. The district court then concluded that Vasquez's background, "though terrible," would not have so altered a jury's perception of his moral culpability that the Texas Court of Criminal Appeals had unreasonably erred — the standard imposed by AEDPA — in its conclusion that a jury would have convicted Vasquez to death anyway.
Vasquez v. Quarterman, No. CC-05-059, 2008 WL 859147, at *11-12 (S.D.Tex., March 28, 2008).
ii. Comparing instant evidence with that in Wiggins and Rompilla
We deem unavailing Vasquez's claim that the district court erroneously "weighed" the mitigating evidence against the aggravating evidence, or committed error when it compared the mitigating evidence in Vasquez's case to that of successful Wiggins petitioners. The Supreme Court instructs courts to consider "the totality" of mitigating evidence — both the evidence adduced at sentencing and evidence that was omitted or went undiscovered — in its prejudice analysis. The Texas Code of Criminal Procedure instructs a sentencing jury similarly. Consequently, there is no prescribed or proscribed procedure — "balancing," "weighing," or otherwise — by which a jury (or a court) must analyze the mitigation evidence under either Texas or federal law, so long as both the newly discovered mitigation evidence and the original mitigation evidence is taken into consideration. Naturally, the power of the newly amplified case to mitigate a jury's selected punishment will be contingent on other factors in the case, such as the circumstances of the crime. We have, therefore, repeatedly upheld the commonsense notion that the relative mix of mitigating and aggravating evidence must be reassessed when a court engages in a Strickland prejudice analysis. Vasquez is correct that, in support of its balancing approach to prejudice analysis, the district court relied on two cases that were decided before the Texas statute was amended to reflect Penry's insistence that juries be allowed to consider the effect of mitigating evidence on general moral culpability. Nevertheless, our review of the district court's analysis in its entirety leads us to conclude that its citation to two stale cases does not trump the fact that its analysis properly considered the potential impact of the omitted mitigation evidence on the jury's sentencing determination in conformity with prevailing Texas and Supreme Court precedent.
Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that the state supreme court erred when it "failed to evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding in reweighing it against the evidence in aggravation").
The Texas statute requires a jury to consider:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
TEX.CRIM. PROC. CODE ANN. art 37.071 § 2(e) (Vernon 1997).
Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App. 1998) (instructing that "[w]hile the[] cases have some language indicating that the mitigation question does not involve aggravating circumstances, such language should properly be viewed as simply observing that the issue does not require their consideration. Such an observation does not, however, preclude permitting the jury to consider aggravating factors in making its evaluation . . . the jury is not, and should not be, required to look at mitigating evidence in a vacuum. . . ."); accord Ex parte Gonzalez, 204 S.W.3d 391, 394 (Tex.Crim.App.20O6) (noting that "Texas's capital sentencing scheme does not involve the direct balancing of aggravating and mitigating circumstances. It asks the jury to answer a mitigation question.").
Tuilaepa v. California, 512 U.S. 967, 979-80, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (holding that "[a] capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision" and reaffirming that "the sentencer may be given `unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty'") (citing Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)).
Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir. 2007) (holding that Wiggins requires the court to "reweigh[] the evidence in aggravation against the totality of the available mitigating evidence"); Blanton v. Quarterman, 543 F.3d 230, 239 (5th Cir. 2008) ("In reviewing the issue of prejudice at capital sentencing we weight the quality and quantity of the available mitigating evidence, including that presented in post-conviction proceedings, along with any aggravating evidence.").
Vasquez v. Quarterman, No. CC-05-059, 2008 WL 859147, at *11 (S.D.Tex., March 28, 2008) (citing Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999) (applying pre-1991 sentencing statute); Russell v. Lynaugh, 892 F.2d 1205 (5th Cir. 1989) (same)).
With respect to Vasquez's claim that the district court erred in comparing the mitigating evidence in Vasquez with that of other (successful) habeas petitioners who had brought similar claims, nothing in Wiggins, Rompilla, or Williams suggests that a court may not, in its assessment of prejudice stemming from uninvestigated mitigating evidence, engage in the kind of "cross-case comparison" that is the foundation of common law reasoning. On the contrary, we have noted that prejudice analysis "is illumined, although not necessarily controlled by, a comparison with cases in which the Supreme Court determined whether there was a reasonable probability that the trial attorneys' failure to discover and present mitigation evidence had affected the outcome of the sentencing proceedings." iii. Evidence of mental impairment as "double-edged"
Sonnier v. Quarterman, 476 F.3d 349, 360 (5th Cir. 2007) (comparing impact of petitioner's excluded mitigation evidence by reference to mitigation evidence in Williams and Rompilla).
Vasquez's claim that the district court misconstrued the standard of prejudice applicable to newly-discovered evidence of mental impairment is predicated on a faulty interpretation of the district court's reasoning. Vasquez's argument is some-what unclear: He appears to argue that the court misconstrued the prejudice standard because its analysis was incorrectly driven by deference to counsel's strategic choice not to present evidence of mental impairment in light of the fact that such evidence can be double-edged. This, however, mischaracterizes the district court's reasoning and the governing legal standard. The court assumed that the performance of Vasquez's counsel was deficient for failing to investigate evidence that Vasquez suffered from post traumatic stress disorder, attention deficit disorder, drug addiction, Fetal Alcohol Syndrome, learning disabilities, and a borderline I.Q. The court then reasoned that "[r]egardless of whether defense counsel should have pursued . . . additional . . . tests [for mental impairment]," even if evidence of mental impairment were added to the case for mitigation, the "overwhelming evidence of guilt and the brutality discussed" rendered it unlikely that the mental impairment evidence would have so "altered the jury's balancing of aggravating or mitigating factors." The district court correctly noted that evidence of mental impairment "certainly helps to explain Vasquez's violent outburst against Miranda" and that it "could elicit the jury's sympathy." That court thus clearly contemplated the explanatory power and, implicitly, the exculpatory power of the mentalimpairment evidence. In so doing, the court's reasoning is entirely in keeping with governing Supreme Court law and the law of this circuit.
Vasquez, 2008 WL 859147 at *22.
Id. at* 12.
The Supreme Court has held that evidence of mental impairment can be both mitigating and aggravating, and we have repeatedly rejected IAC claims "where alleged failures to investigate mitigating evidence did not prejudice the defendant because of the double-edged nature of the evidence available." Thus, the district court did not misperceive or misapply the relevant standard of Strickland prejudice, and Vasquez has not offered any other grounds from which we could conclude that the state court's prejudice determination was objectively unreasonable. We perceive no error, either on the part of the state court or the federal district court.
Penry v. Lynaugh, 492 U.S. 302, 324, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (noting that "mental retardation and history of abuse is thus a two-edged sword: it may diminish [petitioner's] blameworthiness for [the] crime even as it indicates that there is a probability that he will be dangerous in the future").
Cockrum v. Johnson, 119 F.3d 297, 304-05 (5th Cir. 1997) (collecting cases).
iv. Standard of proof of prejudice
Vasquez next contends that the district court assigned him the incorrect standard of proof when it stated that he had to establish prejudice by "clear and convincing evidence." Under the AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Nevertheless, "[o]n questions of law, as well as mixed questions of law and fact, the district court was required, under AEDPA, to defer to the state-court's decision unless it `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.'" "An ineffective assistance of counsel claim presents a mixed question of law and fact."
Vasquez, 2008 WL 859147 at *12-13 (noting that "Petitioner fails to demonstrate by clear and convincing evidence that the state court's finding [that evidence of Vasquez's mental impairments would not have been reasonably likely to lead the jury to withhold the death penalty] is unreasonable.").
Bartee v. Quarterman, 339 Fed.Appx. 429, 432 (5th Cir. 2009) (internal citations omitted); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ("A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.").
Ward v. Dretke, 420 F.3d 479, 486 (5th Cir. 2005).
Based on the foregoing, the district court erred when it stated that "Petitioner fails to demonstrate by clear and convincing evidence that the state court's finding is unreasonable." Moreover, this error is revealed in the district court's own opinion. In its initial articulation of the standard of review, the court expressly identified the correct standard under the AEDPA, and went on to conclude, after its review of the newly adduced mitigating evidence, that "Vasquez fails to demonstrate a reasonable probability that the mitigating evidence would have altered the jury's balancing of aggravating and mitigating factors" and that, therefore, "[t]he State Court's rejection of this claim was neither `contrary to' nor an `unreasonable applicable of clearly established federal law." These additional statements by the district court, articulating and assigning the correct burden to petitioner, lead us to conclude that it was a simple drafting error that made it appear as though the district court had engrafted the heightened "clear and convincing" evidence standard of proof onto the objective unreasonableness standard mandated by the AEDPA. Even though we recognize that this drafting error incorrectly stated the governing standard of proof, we affirm the district court's ruling on Vasquez's Wiggins claim because, under the correct standard, Vasquez has not proven that the state court's prejudice determination was objectively unreasonable.
Vasquez, 2008 WL 859147 at *12-13.
2. IAC predicated on appellate counsel's conflict of interest
Vasquez also asserts an IAC claim against his appellate counsel, insisting that his attorney on appeal labored under an actual conflict of interest because he simultaneously served as a special prosecutor seeking to uphold two unrelated capital convictions for the same district attorney's office that prosecuted Vasquez. The state court's conclusion that no actual conflict existed is a conclusion of law, and as such it is subject to the "contrary to" or "unreasonable application" standard of review under the AEDPA.
Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
To obtain relief based on counsel's conflict of interest, "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Importantly, the mere " possibility of conflict is insufficient to impugn a criminal conviction." In Mickens v. Taylor, the Supreme Court explained that
Id. at 348, 100 S.Ct. 1708. Note here that Vasquez was unaware that counsel simultaneously represented the Nueces district attorney's office in other capital appeals, and the record does not indicate that this fact was divulged to the appellate court.
Id. (emphasis added).
we think `an actual conflict of interest' mean[s] precisely a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties. It was shorthand for the statement [in Cuyler] that `a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. . . . Thus, the [Cuyler] standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An `actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.
This circuit has further refined the Cuyler inquiry by requiring that "[a] defendant must show more than a speculative or potential conflict;" to meet this standard requires that "it . . . be demonstrated that the attorney made a choice between possible alternative courses of action. . . . If he did not make such a choice, the conflict remained hypothetical." Relevant factors may include (1) whether the attorney had confidential information that was helpful to one client but harmful to the other client; (2) whether and how closely related were the subject matters of the cases; (3) how close in time the multiple representations occurred; and (4) whether the prior representation has terminated. Ultimately, however, we have noted before that " Cuyler's `actual conflict' and `adverse effect' elements have been described as `rather vague'" and such a determination is therefore "tightly bound to the particular facts."
United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006).
Id. (citing Beets v. Scott, 65 F.3d 1258, 1277 (5th Cir. 1995) (en banc)).
U.S. v. Burns, 526 F.3d 852, 856 (5th Cir. 2008).
Perillo v. Johnson, 205 F.3d 775, 782 (5th Cir. 2000) (citing Beets, 65 F.3d at 1265).
Vasquez's conflict-based IAC claim may be reduced to the assertion that, because the interests of a criminal defendant and the office of the prosecutor that convicted him are inescapably adverse, his appellate attorney was, ex definitio, actively representing conflicting interests. All the authorities that Vasquez cites involved a defense attorney's present representation of a defendant and the past representation (civil or criminal) of a witness for the prosecution in the defendant's ongoing criminal trial. Consideration of the particular situation presented here — a special prosecutor who simultaneously serves as a capital defense attorney in the same jurisdiction — appears to be res nova in this circuit, and, indeed, in all but one other circuit. It appears that only the Seventh Circuit has addressed this particular type of conflict, and it squarely rejected the argument that Vasquez advances here. In Small v. Endicott, the Seventh Circuit held that a pro se defendant failed to demonstrate the existence of a cognizable actual conflict under the Sixth Amendment because he did not point to anything other than the fact "that his attorney served as a special prosecutor in an unrelated murder" in the same jurisdiction while he was defending the petitioner. The Small court reasoned that "we do not find a conflict of interest where there exist separate and distinct criminal cases involving neither the same parties nor facts."
United States v. Martinez, 630 F.2d 361, 363 (5th Cir. 1980); Stephens v. United States, 595 F.2d 1066, 1066 (5th Cir. 1979); Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir. 1979); Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974).
998 F.2d 411, 417 (7th Cir. 1993).
Id.
We do not today suggest that an arrangement such as the one presented here could not, under different circumstances, present an actual conflict, but we cannot conclude on the record before us that the state court's conclusion was objectively unreasonable. As in Small v. Endicott, Vasquez's appellate counsel served as a special prosecutor in totally "separate and distinct" capital cases. Further, Vasquez does not allege that his counsel possessed confidential, "zerosum" information that would have aided his defense but would have required his attorney to breach a duty to the Nueces County district attorney's office. Bearing in mind that the only circuit to have considered such a fact pattern held that it did not rise to the level of an actual conflict, we conclude that, under the highly deferential standard of review imposed by the AEDPA, the state court was not objectively unreasonable in holding that, without more, appellate counsel's simultaneous service as a special prosecutor in unrelated capital cases did not establish an actual conflict under prevailing federal law as established by the Supreme Court.
See, e.g., Burger v. Kemp, 483 U.S. 776, 784-85, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). In Kemp, the Court treated partners in a law firm who represented different defendants in different trials involving a single criminal transaction as a single attorney for conflicts purposes. "The two partners [had] shared their legal research and discussed the cases with one another," and the respective theories of each co-defendant "sought to emphasize the culpability of the other in order to avoid the death penalty." Id. at 780, 107 S.Ct. 3114. Although the Court "assum[ed] without deciding" that two law partners are considered one attorney for the purposes of the conflicts analysis, Kemp nevertheless suggests that a special prosecutor and a prosecutor may be treated as law partners — and therefore, have one another's loyalties and conflicts imputed to the other — under certain circumstances.
CONCLUSION
We hold that although it was objectively unreasonable for the state court to conclude that Vasquez's trial counsel's performance was constitutionally sound, Vasquez was not prejudiced by his trial counsel's deficient performance. We also hold that it was not objectively unreasonable for the state court to conclude that Vasquez's appellate counsel did not labor under an actual conflict of interest. The judgment of the district court denying habeas relief to Vasquez is, therefore,
AFFIRMED.
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