Aspex Eyewear, Inc. et al v. Hardy Life, LLC et al

REPLY to Response to Motion re Defendant's MOTION to Dismiss 1 Complaint Pursuant to Rule 12

S.D. Fla.January 11, 2010

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO.: 09-61515-CIV-COOKE/BANDSTRA ASPEX EYEWEAR, INC. AND CONTOUR OPTIK, INC. Plaintiffs, vs. HARDY LIFE, LLC, MARCHON EYEWEAR, INC., NIKE, INC., REVOLUTION EYEWEAR, INC., AND GARY MARTIN ZELMAN, AN INDIVIDUAL, Defendants. ________________________________/ DEFENDANT NIKE, INC.’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) Defendant Nike, Inc. (“Nike”), by and through its undersigned counsel and pursuant to S.D. Fla. L.R. 7.1, hereby submits its Reply Memorandum in Support of its Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) [DE 24] (the “Motion to Dismiss”) and states the following in support thereof:1 I. INTRODUCTION AND SUMMARY OF ARGUMENT In sum, Nike’s Motion to Dismiss seeks dismissal of the Complaint and Demand for Jury Trial [DE 1] (the “Complaint”) filed by Plaintiffs Aspex Eyewear, Inc. and Contour Optik, Inc. 1 Nike adopts the positions set forth in the separately-filed Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [DE 7] filed by Defendant Marchon Eyewear, Inc. (“Marchon”) and Marchon’s Reply Memorandum filed in support thereof. If the Marchon Motion to Dismiss filed by Marchon is granted, the inducement of patent infringement claims asserted against Nike are rendered moot, and this Court should accordingly dismiss the inducement action against Nike independent of this Motion to Dismiss. Case 0:09-cv-61515-MGC Document 51 Entered on FLSD Docket 01/11/2010 Page 1 of 7 CASE NO.: 09-61515-CIV-COOKE-BANDSTRA 2 (collectively referred to herein as “Plaintiffs” or “Aspex”) because the allegation that Nike “aided and abetted Marchon’s direct infringement of Claims 23 and 35 of the ’545 patent” is deficient under Supreme Court precedent, including Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), as well as the law of the Eleventh and Federal Circuits. Aspex’s lengthy Opposition to Defendant Nike’s Motion to Dismiss Complaint, Pursuant to Fed. R. Civ. P. 12(b)(6) [DE 40] (the “Opposition”) directs this Court to a line of inapplicable cases involving only direct patent infringement, not inducement of patent infringement and an irrelevant federal pleading form, both of which have no bearing on this action which only alleges inducement of patent infringement. As such, Aspex’s Complaint should be dismissed as a matter of law. II. ARGUMENT A. ASPEX’S COMPLAINT FAILS TO MEET THE PLEADING STANDARD OF FED. R. CIV. P. 8(A) AND OF TWOMBLY In its Opposition, Aspex alleges that its inducement of infringement claims against Nike meet the notice requirements of Fed. R. Civ. P. 8(a). See Opposition [DE 40] at p. 5. However, despite the lengthy Opposition filed by Aspex, the Aspex Complaint simply fails to give Nike “fair notice of what the…claim is and the grounds upon which it rests” as required by the Federal Rules of Civil Procedure. See Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). Indeed, Aspex only alleges that: Nike, well knowing of the ’545 Patent, has actively and knowingly aided and abetted Marchon’s direct infringement of claims 23 and 35 of the ’545 Patent, both literally, and under the doctrine of equivalents, by reason of Marchon’s unauthorized making, using, selling, and/or offering for sale in this judicial district and elsewhere, magnetic clip-on eyewear under the Nike brand, which incorporates an auxiliary spectacle frame having arms for securing magnetic members satisfying each and every element of claims 23 and 35. Case 0:09-cv-61515-MGC Document 51 Entered on FLSD Docket 01/11/2010 Page 2 of 7 CASE NO.: 09-61515-CIV-COOKE-BANDSTRA 3 Complaint at ¶ 31. The Complaint pleads no factual matter regarding alleged culpable conduct by Nike or Nike’s alleged knowledge of infringement. Aspex alleges no factual matter that would allow a reasonable inference of culpable conduct directed to encouraging infringement. In fact, the pleadings in Twombly recited significantly more factual matter regarding culpable conduct than the factual matter recited by Aspex in the pleadings of the present case, and yet the Court held that the pleadings in Twombly failed to give fair notice to the defendant. Twombly, 550 U.S. at 551. Aspex, in its Opposition, has failed to point to any such factual matter in its Complaint against Nike which can satisfy the legal standard. Accordingly, the Complaint fails to satisfy the Twombly standards, which require a complaint to plead sufficient factual matter to allow a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556. B. MCZEAL AND FEDERAL FORM 18 DO NOT APPLY TO PATENT CASES INVOLVING INDUCEMENT OF INFRINGEMENT In addition to several cases which pre-date Twombly, Aspex also relies heavily on a case involving direct infringement of a patent and on Federal Form 18 of the Federal Rules of Civil Procedure, neither of which have any applicability to the present inducement action against Nike. See McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007) (alleging direct patent infringement). Aspex, citing McZeal, incorrectly states that “in pleading causes of action for either direct infringement or inducement of infringement, plaintiff need only allege the elements set forth in Federal Form 16 (now Form 18) of the Federal Rules of Civil Procedure.” See Opposition at p. 7. However, McZeal does not involve or even mention a cause of action relating to inducement of patent infringement. Second, it is clear that Form 18 “only provides an Case 0:09-cv-61515-MGC Document 51 Entered on FLSD Docket 01/11/2010 Page 3 of 7 CASE NO.: 09-61515-CIV-COOKE-BANDSTRA 4 example of how direct patent infringement may be alleged.” Elan Microelectronics Corp. v. Apple, Inc., No. C 09-01531 RS, 2009 WL 2972374, *2 (N.D. Cal. Sept. 14, 2009). According to Elan, Form 18 has no relevance to the sufficiency of an inducement claim. Id. In the present case, Aspex has only asserted claims against Nike which relate to inducement of patent infringement, and not direct patent infringement. As outlined by the court in Elan, inducement of patent infringement “include[s] additional elements” above and beyond direct patent infringement, “none of which Form 18 even purports to address.” Id. Accordingly, McZeal and Form 18 are inapposite and, for the same reason, the long line of Form 18 cases cited by Aspex are similarly inapposite. See Opposition at pp. 8-9. There is no reason to burden this Court with a more detailed response to the several unnecessary and irrelevant arguments that Aspex has devoted to McZeal and to Form 18. Aspex simply cannot rely on Form 18 or the requisite elements of a properly pleaded cause of action for direct patent infringement. Since McZeal and Form 18 fail to provide any authority in a patent case involving alleged inducement of infringement, “the Court must apply the teachings of Twombly.” Elan, 2009 WL 2972374 at *2. As discussed above, Aspex’s Complaint clearly fails to meet the pleading standards of Twombly as must therefore be dismissed as a matter of law. Moreover, the assertion by Aspex that “the Complaint identifies the specific products that infringe the ‘545 Patent and explains how such infringement took place with respect to claims 23 and 35” is false. See Opposition at p. 10. To be clear, the Complaint completely lacks any detail with regard to the specific products that allegedly infringe the ‘545 Patent, or any detail explaining how such infringement (or inducement to infringe) allegedly took place. Aspex should be required to identify with specificity how Nike has induced infringement of the ’545 Patent. It is unfair to Nike and to this Court for Aspex to fail to more precisely Case 0:09-cv-61515-MGC Document 51 Entered on FLSD Docket 01/11/2010 Page 4 of 7 CASE NO.: 09-61515-CIV-COOKE-BANDSTRA 5 identify how Nike has allegedly induced infringement. III. CONCLUSION Based upon the foregoing, Nike respectfully requests that this Court enter an Order dismissing the Complaint [DE 1] filed by Aspex, together with such other and further relief as this Court deems just and proper. Dated: January 11, 2010 Respectfully submitted, Miami, Florida s./ Martin J. Keane __________________________________________ W. Barry Blum bblum@gjb-law.com Florida Bar No.: 379301 Martin J. Keane mkeane@gjb-law.com Florida Bar No.: 524239 GENOVESE JOBLOVE & BATTISTA, P.A. 4400 Miami Tower 100 Southeast Second Street Miami, Florida 33131 Telephone: (305) 349-2300 Facsimile: (305) 349-2310 and s./ Edgar H. Haug __________________________________________ Edgar H. Haug (admitted Pro Hac Vice) ehaug@flhlaw.com Brian S. Goncalves (admitted Pro Hac Vice) bgoncalves@flhlaw.com FROMMER LAWRENCE & HAUG LLP 745 Fifth Avenue New York, New York 10151 Telephone: (212) 588-0800 Facsimile: (212) 588-0500 Attorneys for Defendants Nike, Inc. Case 0:09-cv-61515-MGC Document 51 Entered on FLSD Docket 01/11/2010 Page 5 of 7 CASE NO.: 09-61515-CIV-COOKE-BANDSTRA 6 CERTIFICATE OF SERVICE I hereby certify that on January 11, 2010, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s./ Martin J. Keane __________________________________________ Attorney Case 0:09-cv-61515-MGC Document 51 Entered on FLSD Docket 01/11/2010 Page 6 of 7 CASE NO.: 09-61515-CIV-COOKE-BANDSTRA 7 SERVICE LIST Aspex Eyewear, Inc. v. Hardy Life, LLC et. al. CASE NO.: 09-CIV-61515-COOKE/BANDSTRA (1) Jacqueline Becerra becerraj@gtlaw.com Ericka Turk-Moore turkmooree@gtlaw.com Michael Nicodema (admitted Pro Hac Vice) nicodemam@gtlaw.com GREENBERG TRAURIG, P.A. 1221 Brickell Avenue Miami, Florida 33131 Telephone: (305) 579-0500 Facsimile: (305) 579-0717 Attorneys for Plaintiffs Aspex Eyewear, Inc. and Contour Optik, Inc. (2) Janet T. Munn jmunn@feldmangale.com FELDMAN GALE, P.A. One Biscayne Tower - 30th Floor 2 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 397-0798 Facsimile: (305) 358-3309 --and-- (3) Jennifer A. Trusso (admitted Pro Hac Vice) jtrusso@sheppardmullin.com Steven M. Hanle (admitted Pro Hac Vice) shanle@sheppardmullin.com Aaron M. Fennimore (admitted Pro Hac Vice) afennimore@sheppardmullin.com SHEPPARD MULLIN RICHTER & HAMPTON LLP 650 Town Center Drive - Fourth Floor Costa Mesa, California 92626 Telephone: (714) 513-5100 Facsimile: (714) 513-5130 Attorneys for Defendants Revolution Eyewear, Inc. and Gary Martin Zelman 10289-001 / 90 Case 0:09-cv-61515-MGC Document 51 Entered on FLSD Docket 01/11/2010 Page 7 of 7