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

Lack of Standing & Twiqbal Motions Denied

Nope, the closet isn’t cleaned out yet.  In this case, defendants in four of five consolidated cases filed Twiqbal motions, and Judge Payne addressed all four in a single order, Hellfighters-style.  Actually, that’s not quite accurate – defendants’ principal argument was a lack of standing, but all also asserted failure to state a plausible claim. With respect to the first, 

EDTX Guidance on Motions to Dismiss Under Twiqbal After Abrogation of Form 18

No, this isn’t a book review.  I just couldn’t pass up the cover of this … interesting publication. On December 1, 2015, the authority governing the pleading standard for certain types of patent infringement claims changed. Prior to that date Federal Rule of Civil Procedure 84 and Form 18 of the Appendix of Forms controlled pleadings for direct patent infringement claims. But in cases filed after December 1, 2015, as well as “insofar as just and practicable, all proceedings then pending,” the Iqbal/Twombly standard governs patent infringement pleadings.  In the case I am discussing, the complaint was filed several weeks after the change, so there was no dispute that Twiqbal applied. The case is a patent one, and as is often the case, a Twiqbal motion was filed, but this opinion addresses the still relatively new issue of how Twiqbal applies to pleadings of direct infringement, as well as several claims dealing with allegations of indirect and willful infringement, as well as other issues.  It also presents practitioners with a match set (attached below the analysis) of Judge Payne’s report and recommendations on the issue, and Judge Gilstrap’s subsequent order adopting the report and overruling the objections.  The case is trebly important because it addresses both substantive and tactical considerations, indicating what practices regarding Twiqbal motions might be more better received than others.