MARSHALL, Texas (CN) – A federal judge declined to hold an attorney in contempt for misconduct during a patent infringement case, but referred the matter to the State Bar and the district’s chief judge.
Attorney Kent Rowald represented PetVac Group after FURminator sued it in September 2008 for violating its patent with the ShedEliminator, which it said was merely an imitation of its deshedding tools.
Three years later, FURminator obtained a default judgment for patent infringement, and PetVac was ordered to pay $66,000 in royalties.
However, U.S. District Judge Rodney Gilstrap explained in an order issued Friday that the case became more than a patent infringement issue as “from the beginning to the end of the case, both PetVac and Mr. Rowald engaged in repeated conduct that can only be viewed as serious litigation misconduct.”
As recounted by Gilstrap in his order, this conduct “ultimately lead Judge T. John Ward (who was then presiding over this case) to enter judgment against PetVac and assess severe monetary sanctions against PetVac and Rowald… The most egregious allegation of misconduct stems from a fraudulent and fictitious email that Mr. Rowald attached as an exhibit to a filing with this Court.”
Ward’s final judgment against PetVac included an award of $70,500 in damages to FURminator, a $60,000 sanction award which Rowland was to pay to FURminator, and the issuance of a permanent injunction regarding the infringing products at issue in the case.
Additionally, Judge Ward notified the then serving Chief Judge of the Eastern District of Texas (now retired Judge David Folsom) of Rowald’s misconduct and recommended that a disciplinary investigation be commenced.
In the course of that investigation, Folsom accepted Rowald’s offer to voluntarily surrender his license to practice law in the district for two years.
In addition, Folsom ordered Rowald to submit both a copy of his order and Ward’s opinion to the Chief Disciplinary Counsel for the State Bar of Texas and file a notice of compliance by March 29, 2012. According to Gilstrap, Rowald apparently failed to comply with Folsom’s “clear and direct” order.
Separate and apart from the developments, FURminator filed motions for contempt against PetVac and Rowald. In the first, FURminator charges that PetVac disregarded Ward’s injunction and continued to sell the infringing products.
As for Rowald, FURminator said the attorney failed to pay the $60,000 sanction. In light of these infractions, the company asked the court to order Rowald to show why he shouldn’t be held in contempt and to impose additional sanctions.
Gilstrap denied FURminator’s motions, explaining “[t]he court is reluctant at this time to award ‘sanctions upon sanctions’ when FURminator has other tools at its disposal to collect its monetary award.”
But Gilstrap took an entirely different track when it came to the history of misconduct that characterized the case.
“At a minimum, even if Mr. Rowald complied with all the other provisions of Chief Judge Folsom’s order, Mr. Rowald failed to adhere to the court’s clear and direct order to file a written notice of compliance within the time specified,” Gilstrap noted. “At worst, Mr. Rowald may have disregarded this order in its entirety. In such a ‘worst case’ scenario, the Office of the Chief Disciplinary Counsel of the State Bar of Texas may have no knowledge of any of these events.”
Given Rowald’s failure to follow the previous order from Folsom, Gilstrap also directed the clerk to send Friday’s order to current Chief Judge Leonard Davis as well as the Chief Disciplinary Counsel for consideration of possible disciplinary measures.