Tank Holding v. Myers Industries: Joint Dismissal Without Prejudice in 130 Days
Tank Holding, Corp. filed suit against Myers Industries, Inc. in Ohio’s Northern District, asserting patent US10308411B2 against the Tuff Series 140L SVR plastic storage container. The parties reached a joint stipulation of dismissal without prejudice in just 130 days — with a notable waiver by Myers Industries foreclosing a key procedural defense.
Swift joint dismissal in the plastic storage container IP space
On 25 August 2023, Tank Holding, Corp. filed a patent infringement action against Myers Industries, Inc. in the U.S. District Court for the Northern District of Ohio (Case No. 5:23-cv-01658), presided over by Chief Judge John R. Adams. The complaint centred on US10308411B2, a patent covering technology relevant to plastic storage containers, asserted against Myers Industries’ Tuff Series 140L SVR product. Myers Industries’ wholly-owned subsidiary, Elkhart Plastics LLC, was also implicated through the dismissal terms.
The case resolved on 2 January 2024 — just 130 days after filing — through a joint stipulation of dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). All asserted claims and counterclaims were dismissed without prejudice, meaning Tank Holding formally retains the right to refile. Critically, the parties negotiated a waiver by Myers Industries of its right to invoke Rule 41(a)(1)(B)’s ‘two-dismissal rule,’ which would otherwise treat a second voluntary dismissal as an adjudication on the merits.
The 130-day resolution is notably faster than typical patent litigation timelines and suggests the parties may have reached a commercial or licensing arrangement outside of court — though the public record is silent on any settlement terms. The explicit Rule 41(a)(1)(B) waiver is an unusual and strategically significant term, indicating Tank Holding insisted on preserving full optionality to re-engage litigation. What drove this early resolution, and whether any licensing agreement was reached, remains undisclosed.
Filing to voluntary dismissal in 130 days
130 days — resolved significantly faster than the median U.S. district court patent case
Joint stipulated dismissal without prejudice — what the terms mean for both parties
Rule 41(a)(1)(A)(ii): What a joint stipulated dismissal means
A dismissal under FRCP 41(a)(1)(A)(ii) requires agreement from all parties who have appeared and allows both sides to exit litigation without a court ruling on the merits. It is commonly used when parties resolve their dispute privately or need more time without a pending case. Here, both Tank Holding and Myers Industries — including subsidiary Elkhart Plastics LLC — agreed to the stipulation, signalling mutual interest in an orderly exit rather than continued litigation.
Consensual exit mechanismWithout prejudice: Tank Holding preserves the right to refile
A dismissal without prejudice does not extinguish the plaintiff’s underlying claims — Tank Holding may refile the same infringement action in future. In contrast, a dismissal with prejudice would permanently bar refiling on the same claims. The public record does not specify why the parties chose dismissal without prejudice over a final resolution; it may reflect an ongoing commercial relationship, a confidential licence, or continued negotiations. The distinction materially affects Myers Industries’ ongoing IP risk exposure.
Claims remain refillableMyers Industries waived the ‘two-dismissal rule’ — an unusual concession
Ordinarily, under Rule 41(a)(1)(B), a second voluntary dismissal of the same claim operates as an adjudication on the merits — effectively barring the plaintiff from filing again. By waiving this right, Myers Industries agreed that any future dismissal without prejudice by Tank Holding would not trigger this rule. This is an atypical negotiated term and strongly suggests Tank Holding insisted on preserving maximum litigation optionality as part of the resolution. It is a notable concession by the defendant.
Defendant waived procedural shieldEach party bears its own costs — no financial winner declared
The stipulation provides that each party bears its own costs and attorney fees. In patent litigation, cost shifting under 35 U.S.C. § 285 (exceptional case) or Rule 54 is sometimes sought even on dismissal. Here, the mutual cost-bearing arrangement is consistent with a negotiated resolution where neither side sought to characterise the other’s conduct as exceptional or unreasonable. It also avoids further litigation over fee awards, consistent with the parties’ apparent interest in a clean, low-conflict exit.
No fee shifting — neutral exitFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Tank Holding, Corp. | Company | Plastic container manufacturer and IP holder — holder of US10308411B2Search in Eureka ↗ |
| Defendant | Myers Industries, Inc. | Company | Myers Industries, Inc. — diversified polymer products manufacturer; parent of Elkhart Plastics LLCSearch in Eureka ↗ |
| Plaintiff counsel | Steven J. Solomon | Attorney | Counsel for Tank Holding, Corp.Search in Eureka ↗ |
| Plaintiff counsel | Una L. Lauricia | Attorney | Counsel for Tank Holding, Corp.Search in Eureka ↗ |
| Defendant counsel | Aaron M. Williams | Attorney | Counsel for Myers Industries, Inc.Search in Eureka ↗ |
| Presiding judge | Judge John R. Adams | Chief Judge | Ohio Northern District Court — Chief JudgeSearch in Eureka ↗ |
Stipulation of dismissal — official text
The joint stipulation is carefully drafted to preserve Tank Holding’s full legal optionality. The explicit Rule 41(a)(1)(B) waiver by Myers Industries — covering itself and Elkhart Plastics LLC — is a non-standard term that goes beyond a routine dismissal. It suggests Tank Holding’s counsel negotiated hard to ensure no procedural bar could arise from this exit. The mutual cost-bearing clause indicates neither party sought to characterise this as a win, consistent with a confidential commercial resolution whose terms remain outside the public record.
US10308411B2 — Plastic Storage Container Technology
US10308411B2 (application number US15/829447) covers technology in the plastic container space, asserted here against the Myers Industries Tuff Series 140L SVR — a large-volume, stackable container product. The patent was granted with a B2 designation, indicating it issued with amended claims following examination, which typically reflects a more precisely scoped but potentially more defensible claim set. Its assertion in this case places it squarely in the commercial polymer storage container market, a sector characterised by high-volume manufacturing and competitive product differentiation.
For competitors in the injection-moulded and blow-moulded container sector, US10308411B2 represents an active enforcement risk. Tank Holding’s willingness to file suit and negotiate a carefully structured exit — rather than a clean withdrawal — strongly suggests the company views this patent as a commercial asset worth defending. The inclusion of a subsidiary (Elkhart Plastics LLC) in the dismissal scope further indicates the patent’s claim scope may extend across manufacturing entities in the same product family, not just the named top-level brand.
Should your product team run an FTO against US10308411B2?
Any manufacturer, distributor, or brand developing large-format plastic storage containers — particularly stackable, high-volume designs in the 100L+ category — should evaluate freedom-to-operate against US10308411B2. This patent has been actively asserted in U.S. federal court and remains in force. The Tuff Series 140L SVR product accused here is a commercially mainstream container design, suggesting the claimed invention may read broadly across comparable products in this category.
PatSnap Eureka’s FTO Search Agent allows R&D and product teams to map their container designs against the claims of US10308411B2, identify prior art that may inform design-arounds, and monitor for continuation or divisional applications filed by Tank Holding that could extend the patent family’s reach. Claim monitoring alerts ensure you are notified if claim scope shifts through reexamination or reissue proceedings — critical given the active enforcement posture signalled by this case.
Run a freedom-to-operate analysis on US10308411B2 to assess your product’s exposure
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What this case signals for the plastic container and polymer products IP landscape
A fast dismissal with an unusual procedural waiver suggests this dispute carries more strategic weight than a standard walkaway.
Dismissal without prejudice keeps Myers Industries in Tank Holding’s litigation crosshairs
The without-prejudice dismissal means Tank Holding has not abandoned its infringement position on US10308411B2. Myers Industries and Elkhart Plastics LLC remain exposed to renewed litigation if commercial relations deteriorate or a licensing arrangement breaks down. Competitors and customers of both parties should note that this dispute is not formally resolved on the merits.
The Rule 41(a)(1)(B) waiver is a rare term that rewards close reading
Negotiating a waiver of the two-dismissal rule is uncommon and signals that Tank Holding’s counsel — Pearne & Gordon LLP — specifically anticipated the possibility of a future refiling. IP teams monitoring this space should treat this waiver as a strong indicator that the underlying patent is considered commercially valuable and actively enforced by the plaintiff.
Tank v Myers — key questions answered
The case was jointly dismissed without prejudice on 2 January 2024, 130 days after filing. Under FRCP 41(a)(1)(A)(ii), all asserted claims and counterclaims were dismissed, each party bearing its own costs. Myers Industries waived the right to invoke Rule 41(a)(1)(B)’s two-dismissal rule in any future action.
Tank Holding asserted US10308411B2 (application US15/829447), a patent covering plastic storage container technology. The accused product was the Myers Industries Tuff Series 140L SVR. Myers Industries’ wholly-owned subsidiary Elkhart Plastics LLC was also named in the dismissal terms.
Normally, a second voluntary dismissal of the same claims by the same plaintiff operates as an adjudication on the merits under FRCP 41(a)(1)(B), permanently barring refiling. By waiving this right, Myers Industries agreed that any future Tank Holding dismissal of the same claims would not trigger this bar, preserving Tank Holding’s ability to refile indefinitely without prejudice.
Yes. The dismissal was explicitly without prejudice, meaning Tank Holding retains the legal right to bring the same infringement claims based on US10308411B2 against Myers Industries and Elkhart Plastics LLC in the future. The Rule 41(a)(1)(B) waiver further ensures no procedural bar arises from this particular dismissal.
Tank Holding was represented by Steven J. Solomon and Una L. Lauricia of Pearne & Gordon LLP (Cleveland). Myers Industries was represented by Aaron M. Williams of Vorys Sater Seymour & Pease LLP. Chief Judge John R. Adams of the Northern District of Ohio presided over the case.
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