The plaintiff in this patent case brought a motion to dismiss the defendant’s counterclaims of patent infringement (no, not noninfringement – I know what you’re thinking), promissory estoppel and unjust enrichment. The Court’s report and recommendations, later adopted by the district court, provides a useful foray into the “dancing backwards” world of counterclaims.
Motions to dismiss pursuant to FRCP 12(c) are not the most favored motions in the world. For that reason, this EDTX order arising out of the world of college basketball granting one in part is helpful to practitioners because it shows the type of grounds that can be successful across a variety of claims. Although, in fairness, it might be better categorized as showing the arguments that are likely to be unsuccessful.
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.
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
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.
You can never have too many cases to check to see whether a motion to dismiss for failure to state a claim under Twiqbal is going to be fruitful in a case – or not. Attached is a another example of one that was … not.
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.
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.
Tuesday I’m testifying before the Texas Legislature which believes that FRCP 12(b) motions are just the cat’s meow for deep-sixing cases early on, and Friday I’m posting a good example of why that’s not necessarily the case. This case arises out of a ANDA application filed by the Defendant to
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