“Pruning” Type Motions to Dismiss

One of the commonly cited uses for a motion to dismiss to to identify and cut out of a case claims or defenses which don’t have support, either in the law or in the facts of the case.  Such motions serve the useful purpose of pruning cases back to what’s actually at issue, although I have an editorial comment on that below.

But as with any pruning job, there’s a line between cutting off the dead wood and cutting out causes of action that are still at least potentially live.  This recent EDTX case illustrates where this line is with respect to pleaded claims.

Plausibility and Allegations of Infringement

The Twombly and Iqbal cases set forth the rule that to survive a motion to dismiss, a plaintiff must plead enough to state a claim to relief that is “plausible on its face.” None of this has anything to do with celebrated artist Cy Twombly, but it’s a good excuse to reference his work for those of you that enjoy that sort of thing.

Today’s EDTX Twiqbal guidance comes in the form of an order on a defendant’s renewed motion to dismiss  a patent plaintiff’s claims of willful and induced infringement as well as direct infringement

Motion to Dismiss Raises Personal Jurisdiction, Venue and Convenience

On the surface, it just says it’s a ruling on a motion to dismiss, or in the alternative to transfer venue, but under that plain exterior lurks  a detailed analysis of the defenses of personal jurisdiction (which is not, repeat NOT what you were taught in law school) , improper venue under  the general venue statute (and how to throw it away), and a motion to transfer under Section 1404.

So while it’s not exactly everything you need to know about these motions – it’s not the Magna Charta of venue law as Judge Heartfield once (well, maybe more than once) described his magnus opus Mohamed v Mazda, it’s still a thorough and useful recitation of the applicable standards.

Plausible. P-L-A-U-S-I-B-L-E. Plausible.

One day a year I have to spell things right, and today was that day.  Congratulations to our Marshall Chamber of Commerce team for pulling off the win at the annual Marshall – Harrison County Literacy Council spelling bee.  We made it past 12 other teams, and raised some good money for local literacy efforts.   As Bryan Partee said at the beginning of the competition, “when you can read, every book is a children’s book.”  I like that.  (To answer your question, they’re fire ants – Marshall’s Fire Ant Festival is just a few weeks away).

Speaking of spelling, “plausible” can be a pretty hard word, but a recent opinion by Judge Payne uses it in a sentence, and provides some guidance on when a motion to dismiss a complaint for failure to state a claim  because an assertion is not “plausible” should be denied.

Dismissals With / Without Prejudice

An interesting trend of late in cases filed in EDTX is that a substantial number are ending with dismissals “without” prejudice as opposed to settlements that result in dismissals with prejudice.  I wanted to mention a couple of things I am seeing both statistically and anecdotally, and mention a recent decision that addresses an aspect of this trend, as well as alert readers to some possible upcoming decisions in this area.

Twombley’d in the Iqbals – Claims Against 11 Defendants Dismissed Without Leave to Replead

I wouldn’t call Professor Arthur Miller’s often-quoted phrase more elegant,  but it is clearly better that the mere “Twiqbal” at describing the effect of his former student Judge Payne’s report and recommendation last week in Bartonfalls v. Turner Broadcasting Systems, Inc., 2:16cv1127, which recommended dismissal of the plaintiff’s claims under three patents against 11 defendants, with prejudice, i.e. no opportunity to replead, using only four paragraphs of analysis.

But the grounds for the dismissal were unique.  In this case

Bug, Meet Windshield: Personal Jurisdiction & Twiqbal

Speaking (indirectly) about trial practice, Mark Knopfler that famously observed “some days you’re the windshield; some days you’re the bug.”  What’s a morning catching up on recent cases without watching another argument for (or against) personal jurisdiction and plausibility play out, and see where but for the grace of God, I go … at least until later this afternoon. In this case, the defendant asserted a motion to dismiss for