Westech Aerosol Corporation v. Wilsonart Llc

Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Wash.April 24, 2017

DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 1 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 THE HONORABLE RONALD B. LEIGHTON UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA WESTECH AEROSOL CORPORATION, a Washington corporation, Plaintiff, v. WILSONART, LLC, a Delaware limited liability company, Defendant. NO. 3:17-cv-05088-RBL DEFENDANT'S SECOND MOTION TO DISMISS NOTE ON MOTION CALENDAR: Friday, May 19, 2017 ORAL ARGUMENT REQUESTED Defendant Wilsonart LLC (“Defendant” or “Wilsonart”) respectfully moves pursuant to Fed. R. Civ. P. 12(b)(6) for an order dismissing the Amended Complaint filed by Plaintiff Westech Aerosol Corporation (“Plaintiff” or “Westech”) for failure to state a claim upon which relief can be granted. I. INTRODUCTION Plaintiff took its opportunity to amend the Complaint, but did not address the fatal flaw in its first try: it fails to plead any facts showing direct infringement. Wilsonart previously moved to dismiss Plaintiff’s first Complaint because it omitted facts about the makeup of the product accused of infringement, and therefore failed to meet the new pleading standard for patent infringement cases. Wilsonart pointed out the specific deficiencies in the first Complaint. Instead of responding to the motion to dismiss, Plaintiff elected to file an Amended Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 1 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 2 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Complaint. The problem is that the Amended Complaint did nothing to address those deficiencies. It still lacks any facts as to the features of Wilsonart’s product, much less facts showing infringement. Instead of pleading facts, the Amended Complaint simply repeats verbatim phrases from a single patent claim. This is not nearly enough under the case law. The Federal Rules of Civil Procedure recently were amended to eliminate this type of bare-bones patent infringement complaint. It no longer suffices to allege in conclusory fashion that a product infringes the patent. Instead, the new standard requires a patent plaintiff to allege facts as to the features of the accused product and how they satisfy each limitation of the patent claim asserted. The Federal Rules amendment arose out of concern that even complaints with no factual basis previously could not be dismissed at the Rule 12(b)(6) stage because facts showing infringement did not need to be pleaded - thus requiring months of expensive litigation to obtain summary judgment. Such expensive litigation could eclipse the plaintiff’s settlement demand, thus allowing plaintiffs to coerce settlements even on baseless claims. The new pleading standard requires a plaintiff to plead facts - i.e., the actual features of the accused product that show infringement. For example, claim 1 of the ‘056 patent requires “a compressed gas dissolved in the solvent mixture.” The Amended Complaint simply states in conclusory fashion: “The Wilsonart Accused Product includes… a compressed gas dissolved in the solvent mixture.” This is nothing more than repeating the words of the claim. A proper complaint would set forth the specific features of Wilsonart’s product and explain how they meet the various claim limitations. For example, such a complaint would have to allege that Wilsonart’s product uses a single solvent (methyl acetate), not a “solvent mixture” as required by the patent. And it would have to disclose that nitrogen is the compressed gas used by Wilsonart’s product; but the problem is that nitrogen does not dissolve into methyl acetate, as required by the patent. Plaintiff is well aware of the makeup of Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 2 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 3 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Wilsonart’s product. It had two opportunities to plead facts supporting its theory, but did not. By omitting the key facts, Plaintiff obscures critical shortcomings of its lawsuit. These examples underscore that the problem with the Amended Complaint is no mere technical deficiency - it goes to the heart of why this case lacks merit. The new pleading standard was intended to weed out precisely this type of patent infringement claim. Accordingly, Wilsonart respectfully requests dismissal of the Amended Complaint with prejudice. II. OVERVIEW OF FACTS IN THE AMENDED COMPLAINT Plaintiff filed this patent infringement case on February 6, 2017 (Dkt. 1) alleging infringement of a single patent and referencing a single claim. The Complaint alleged infringement of U.S. Patent No. 7,705,056 (“the ‘056 patent”) entitled “Aerosol Adhesive and Canister-Based Aerosol Adhesive System.” Id. at 1. The Amended Complaint, which is the subject of this motion, does the same. The patent summarizes the invention as a “canister- based, high solids, low and non-VOC aerosol adhesive and canister based system.” Id. Ex. 1, at 1. In general terms, the ’056 patent relates to a system for spraying aerosol adhesives. An aerosol is a substance that is held within a container under high pressure. The Complaint and the Amended Complaint include the limitations of only the first claim of the patent.1 (Dkt. 1 at ¶ 13.) These limitations are as follows: 1. A gas cylinder canister; 2. A hose connected to said canister; 3. A spray gun connected to said hose; 4. A hydrocarbon propellant; 1 Like the Complaint, the Amended Complaint alleges “at least” infringement of Claim 1 of the ‘056 patent, and does not specify which, if any of the other 27 claims it alleges infringe. See, e.g., Dkt. 1 at ¶ 13. “[I]nfringement must be decided with respect to each asserted claim as a separate entity.” W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1559 (Fed. Cir. 1983). “Plaintiffs must detail how each claim is infringed.” Asghari-Kamrani v. United Services Automobile Ass’n, 2016 WL 1253533, *4 (E.D. Va. Mar. 22, 2016). Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 3 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 4 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5. An aerosol adhesive held within said container, said aerosol adhesive comprising: a. A solvent mixture selected to have volatility characteristics for producing a specific spray pattern; b. A polymeric base in said solvent mixture; c. A compressed gas dissolved in said solvent mixture. (Dkt. 1, Ex. 1, col. 9, lines 30-40.2) The first Complaint alleged that Wilsonart’s 730 and 731 products (the “Accused Product”) infringed claim 1 of the ‘056 patent. The sum and substance of the Complaint’s allegations as to direct infringement were as follows: 14. On information and belief, Defendant Wilsonart sells the following aerosol adhesive products that are believed to infringe at least claim 1 of the ‘056 patent because they contain all of the elements of claim 1 of the ‘056 patent either literally or under the doctrine of equivalents: Wilsonart® 730/731 Adhesive (hereinafter “the Wilsonart Accused Product”). …. 17. Wilsonart has directly infringed at least claim 1 of the ‘056 patent by selling the Wilsonart Accused Product in violation of 35 U.S.C. § 271(a). (Dkt. 1 at ¶¶ 14, 17.) Wilsonart filed a motion to dismiss on March 23, 2017, explaining that these allegations fail under the new pleading standard because they fail to plead facts demonstrating infringement - i.e., stating facts that meet each of claim 1’s limitations. (Dkt. 15.) Wilsonart explained the precise problems with Plaintiff’s superficial pleading, explaining in particular that it was unable to plead facts showing a “solvent mixture,” and a “compressed gas dissolved into said solvent mixture,” all of which are required by claim 1. Plaintiff responded by filing an Amended Complaint on April 10, 2017. (Dkt. 23.) 2 The abbreviation “col. __, line __” refers to the column and line number of the patent. Above, “col. 9, lines 30- 40” refers to column 9 of the patent (found on the last page of the patent), lines 30 to 40 - in this case, claim 1 of the ‘056 patent. Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 4 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 5 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiff’s Amended Complaint fails to fix these problems. It still omits any facts showing the makeup of Wilsonart’s product. Instead, it simply repeats verbatim in relevant respects the words of the patent without providing any facts: 13. The Wilsonart Accused Product is an aerosol adhesive canister system designed to deliver an aerosol adhesive onto a substrate by spraying an aerosol adhesive through an attached hose and spray gun. The Wilsonart Accused Product includes a canister containing a hydrocarbon propellant and an aerosol adhesive comprising a solvent mixture selected to have volatility characteristics for producing a specific spray pattern, a polymeric base in said solvent mixture, and a compressed gas dissolved in the solvent mixture. (Dkt. 23 at ¶¶ 13.) III. ARGUMENT AND CITATION OF AUTHORITIES Federal Rule of Civil Procedure 12(b)(6) requires dismissal when a complaint fails to “state a claim upon which relief can be granted.” The “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).3 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Facial plausibility exists when the court can “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). See also Lyda v. CBS Corp., 838 F.3d 1331, 1337 (Fed. Cir. 2016.) This is what has come to be known as the controlling Iqbal/Twombly standard. Establishing the plausibility of a complaint’s allegations is a two-step process that is “context- specific” and “requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. First, a court should “identif[y] pleadings that, because they are 3 The Federal Circuit applies the law of the regional circuit in reviewing motions to dismiss. See IOP Techs., Inc. v. Amazon.com, 788 F.3d 1359, 1362 (Fed. Cir.), cert. denied, 136 S. Ct. 701 (2015). Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 5 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 6 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 no more than conclusions, are not entitled to the assumption of truth.” Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (alteration in original) (quoting Iqbal, 556 U.S. at 679); see also Chavez v. United States, 683 F.3d 1102, 1108-09 (9th Cir. 2012). “Then, a court should ‘assume the[] veracity’ of ‘well pleaded factual allegations’ and ‘determine whether they plausibly give rise to an entitlement to relief.’” Eclectic Props., 751 F.3d at 996 (alteration in original) (quoting Iqbal, 556 U.S. at 679). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Previously, patent infringement complaints could be threadbare, reciting little more than the existence of a patent and that the accused product infringed (essentially Plaintiff’s approach here). The prior version of the Federal Rules included a terse form patent complaint that the Federal Circuit held sufficient under those rules. Recently, the Federal Rules were amended such that patent infringement complaints now must state plausible facts demonstrating an entitlement to relief, as has long been the case in other areas of the law. These recent amendments deleted the form patent complaint, thus requiring courts to apply Iqbal and Twombly to patent infringement complaints: On December 1, 2015, the amended Federal Rules of Civil Procedure took effect. The amended Rules apply to pending cases “insofar as just and practicable.” H.R. Doc. No. 114-33, at 2 (2015). The changes included the deletion of Rule 84, which provided, “[t]he forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” The Appendix referenced in Rule 84 included Form 18, an example complaint for patent infringement. Form 18 merely included an allegation that the defendant infringed the asserted patent by making, using, or selling “electric motors” without specifying the model of the accused motors. The Federal Circuit held that, pursuant to Rule 84, the pleading standard set forth in Form 18, not the pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), controls. In re Bill of Lading, 681 F.3d 1323, 1334 (Fed. Cir. 2012). Rule 84 has been abrogated, so In re Bill of Lading no longer applies. Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 6 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 7 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 FootBalance Sys. Inc. v. Zero Gravity Inside, Inc., 2016 WL 903681, at *4 (S.D. Cal. Feb. 8, 2016) (alterations in original) (emphasis added) (quoting Rembrandt Patent Innovations LLC v. Apple Inc., 2015 WL 8607390, at *2 (N.D. Cal. Dec. 13, 2015)). Courts addressing complaints after this Federal Rules amendment uniformly require pleading specific, plausible facts in accordance with the standards of Iqbal and Twombly. See, e.g., RAH Color Techs. LLC v. Ricoh USA Inc., 194 F. Supp. 3d 346, 350 (E.D. Pa. 2016) (concluding that “claims of direct infringement are now also subject to the Twombly/Iqbal pleading standard”); President & Fellows of Harvard Coll. v. Micron Tech., Inc., __ F. Supp. 3d __, 2017 WL 404891, at *1 (D. Mass. Jan. 30, 2017) (finding that “in the absence of Form 18, patent infringement pleadings now are held to the ‘plausibility’ standard described in Twombly”); Gym Door Repairs, Inc. v. Young Equip. Sales, Inc., __ F.Supp.3d __, 2016 WL 4747281, at *6 (S.D.N.Y. Sept. 12, 2016) (applying “the standard pleading requirements to this patent case rather than the bare-bone former Form 18”); Sunrise Techs., Inc. v. Cimcon Lighting, Inc., __ F. Supp. 3d __, 2016 WL 6902395, at *2 (D. Mass. Nov. 23, 2016) (“[T]he Court will apply the Twombly/Iqbal plausibility standard”); Deetz Family, LLC v. Rust-Oleum Corp., __ F. Supp. 3d __, 2016 WL 6662677, at *3 (D. Mass. Nov. 10, 2016) (“[A]llegations of direct infringement are subject to the pleading standards outlined in Iqbal and Twombly.”); Battle Sports Sci., LLC v. Shock Doctor, Inc., 2016 WL 7046643, at *7 (D. Neb. Dec. 2, 2016) (applying the Twombly/Iqbal standard); Robern, Inc. v. Glasscrafters, Inc., __ F. Supp. 3d __, 2016 WL 3951726, at *4 (D.N.J. July 22, 2016) (holding that “the Iqbal/ Twombly standard controls” after the amendments to the Federal Rules); Incom Corp. v. The Walt Disney Co., 2016 WL 4942032, at *3 (C.D. Cal. Feb. 4, 2016) (“Form 18 no longer provides a safe harbor for pleading direct infringement.”); Atlas IP LLC v. Pac. Gas & Elec. Co., 2016 WL 1719545, at *1-2 (N.D. Cal. Mar. 9, 2016) (applying the Twombly/Iqbal standard and dismissing a post- December 2015 complaint); Ashgari v. United Servs. Auto. Ass’n, Case No. 2:15-CV-478- Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 7 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 8 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 RGD, Doc. No. 60 at 5 (E.D. Va. Mar. 22, 2016) (“All Patent complaints filed after December 1, 2015 are subject to the normal pleading standards of Federal Rule of Civil Procedure 8(a).”). If “the complaint recites only some of the elements of the sole asserted claim, and provides only a threadbare description of the alleged abilities of the accused device,” then it “fails to state a plausible claim for direct infringement.” Atlas IP, 2016 WL 1719545, at *3. In short, a plaintiff must state plausible facts - i.e., facts as to the features of the accused product - that satisfy each limitation of the patent claims asserted. A. The Amended Complaint Fails to Plead Facts Demonstrating Direct Infringement. Plaintiff’s Amended Complaint is a collection of conclusory statements and a formulaic recitation of claim limitations from the ‘056 patent written in a paragraph form. It simply restates the limitations in a single claim (claim 1). Under the new pleading standard, Plaintiff needed to plead facts - i.e., the actual features of Wilsonart’s product that would show infringement. For example, the patent claim requires that the accused product contain “a compressed gas dissolved in said solvent mixture.” Instead of pleading facts, the Amended Complaint simply states in conclusory fashion: “The Wilsonart Accused Product includes… a compressed gas dissolved in the solvent mixture.” This is nothing more than repeating the words of the claim. A proper complaint would set forth the specific features of Wilsonart’s product and explain how they meet the various claim limitations. For example, such a complaint would have to allege that Wilsonart’s product uses nitrogen as its compressed gas and methyl acetate as its solvent. And therein lies the problem. Nitrogen does not dissolve in methyl acetate. To plead these facts would expose the critical shortcomings of the case, and the Complaint would be subject to dismissal. Plaintiff obscures these shortcomings by simply leaving out the facts. Moreover, a proper complaint would have to allege that the solvent in Wilsonart’s product is methyl acetate. The problem is that this is a single solvent, not a “solvent mixture” as Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 8 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 9 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 required by the patent. Plaintiff is well aware of the makeup of Wilsonart’s product. It just chose to leave these facts out of the Amended Complaint. See, e.g., Atlas IP, 2016 WL 1719545, at *3-5 (dismissing complaint that failed to address several limitations of the asserted claims); Ashgari, slip op. at 7 (dismissing complaint and noting that “every one of the patent’s claims contain limitations in addition to the use of a one-time code,” so “[d]oing no more than identifying features of [defendant] USAA’s website that use a one-time use code does not describe with particularity how USAA’s website infringes Plaintiffs’ patent”). The fundamental problem is that there is no good faith basis to assert that Wilsonart’s product infringes the ‘056 patent. This lack of a factual basis for this case is glossed over by the Amended Complaint’s failure to plead any particular facts supporting infringement. This is why the pleading standard requires that such facts be pleaded: it prevents “a plaintiff with a largely groundless claim [from being] allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.” Twombly, 550 U.S. at 558. District courts are directed to apply the pleading requirements to avoid the risk that “the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings.” Id. at 559. Patent cases entail a particular risk of having opportunistic plaintiffs use the high costs of litigation to extract nuisance settlements. See, e.g., Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1930 (2015) (“Some companies may use patents as a sword to go after defendants for money, even when their claims are frivolous.”). B. Plaintiff’s Failure To Plead Direct Infringement Is Fatal To Its Willful, Induced, And Contributory Infringement Claims. Contributory, induced and willful infringement require first that there has been direct infringement by someone. See Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1320, 1322 (Fed. Cir. 2009); SynQor, Inc. v. Artesyn Techs., Inc., 635 F. App'x 891, 894 (Fed. Cir. 2015). Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 9 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 10 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Accordingly, the Amended Complaint’s failure to adequately plead direct infringement is fatal to Plaintiff’s induced, contributory, and willful infringement claims.4 IV. CONCLUSION Plaintiff had two chances to plead its case and chose to leave out the key facts. Accordingly, Wilsonart respectfully requests that the Court dismiss Plaintiff’s Amended Complaint with prejudice. DATED this 24th day of April, 2017. TOUSLEY BRAIN STEPHENS PLLC By: s/ Noelle L. Chung Noelle L. Chung, WSBA #51377 nchung@tousley.com 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 Telephone: 206.682.5600 Fax: 206.682.2992 Courtland Reichman (CA Bar # 268873) creichman@mckoolsmith.com (admitted pro hac vice) Kunwar Singh (CA Bar # 251821) ksingh@mckoolsmith.com (admitted pro hac vice) MCKOOL SMITH, P.C. 255 Shoreline Drive, Suite 510 Redwood Shores, CA 94065 Telephone: (650) 394-1400 Telecopier: (650) 394-1422 Matthew Tyler Cameron (TX Bar # 24097451) mcameron@mckoolsmith.com (admitted pro hac vice) MCKOOL SMITH, P.C. 300 West 6th Street, #1700 Austin, TX 78701 4 Plaintiff’s claims of induced infringement and contributory infringement also fail for a separate reason: Plaintiff does not allege any facts suggesting that Wilsonart knew the Accused Product was infringing the ‘056 patent, as required by the case law. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011); Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926 (2015); i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831, 851 (Fed. Cir. 2010). Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 10 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 11 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Telephone: (512) 692-8752 Telecopier: (512) 692-8744 Attorneys for Defendant Wilsonart, LLC Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 11 of 12 DEFENDANT'S MOTION TO DISMISS (3:17-cv-05088-RBL) - 12 TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE I hereby certify that on April 24, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all parties registered on the CM/ECF system. All other parties (if any) shall be served in accordance with the Federal Rules of Civil Procedure. DATED at Seattle, Washington, this 24th day of April, 2017. s/ Noelle L. Chung Noelle L. Chung, WSBA #51377 nchung@tousley.com Case 3:17-cv-05088-RBL Document 24 Filed 04/24/17 Page 12 of 12 [PROPOSED] ORDER GRANTING DEFENDANT'S SECOND MOTION TO DISMISS (3:17-cv-05088-RBL) - 1 TOUSLEY BRAIN STEPHENS PLLC1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The Honorable Ronald B. Leighton UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA WESTECH AEROSOL CORPORATION, a Washington corporation, Plaintiff, v. WILSONART, LLC, a Delaware limited liability company, Defendant. NO. 3:17-cv-05088-RBL [PROPOSED] ORDER GRANTING DEFENDANT'S SECOND MOTION TO DISMISS Note on Motion Calendar: Friday, May 19, 2017 ORAL ARGUMENT REQUESTED This matter comes before the Court on Defendant Wilsonart, LLC’s (“Defendant”) Second Motion to Dismiss Plaintiff Westech Aerosol Corporation’s (“Plaintiff”) Amended Complaint in the above-referenced matter pursuant to Fed. R. Civ. P. 12(b)(6) (“Motion”). The Court, having considered the Motion, Plaintiff’s Response, Defendant’s Reply, the arguments of both parties, and the pleadings and records on file, rules as follows: /// /// /// /// /// /// Case 3:17-cv-05088-RBL Document 24-1 Filed 04/24/17 Page 1 of 3 [PROPOSED] ORDER GRANTING DEFENDANT'S SECOND MOTION TO DISMISS (3:17-cv-05088-RBL) - 2 TOUSLEY BRAIN STEPHENS PLLC1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant’s Second Motion to Dismiss is GRANTED, and that Plaintiff’s action is dismissed with prejudice. DATED this _________ day of __________________, 2017. _______________________________________ United States District Judge Presented by: TOUSLEY BRAIN STEPHENS PLLC s/ Noelle L. Chung Noelle L. Chung, WSBA #51377 nchung@tousley.com 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 Telephone: 206.682.5600 Fax: 206.682.2992 Courtland Reichman (CA Bar # 268873) (pro hac vice pending) creichman@mckoolsmith.com Kunwar Singh (CA Bar # 251821) (pro hac vice pending) ksingh@mckoolsmith.com MCKOOL SMITH, P.C. 255 Shoreline Drive, Suite 510 Redwood Shores, CA 94065 Telephone: (650) 394-1400 Telecopier: (650) 394-1422 Matthew Tyler Cameron (TX Bar # 24097451) (pro hac vice pending) mcameron@mckoolsmith.com MCKOOL SMITH, P.C. 300 West 6th Street, #1700 Austin, TX 78701 Telephone: (512) 692-8752 Telecopier: (512) 692-8744 Attorneys for Defendant WILSONART, LLC Case 3:17-cv-05088-RBL Document 24-1 Filed 04/24/17 Page 2 of 3 [PROPOSED] ORDER GRANTING DEFENDANT'S SECOND MOTION TO DISMISS (3:17-cv-05088-RBL) - 3 TOUSLEY BRAIN STEPHENS PLLC1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 TEL. 206.682.5600  FAX 206.682.2992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE I hereby certify that on April 24, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all parties registered on the CM/ECF system. All other parties (if any) shall be served in accordance with the Federal Rules of Civil Procedure. DATED at Seattle, Washington, this 24th day of April, 2017. s/ Noelle L. Chung Noelle L. Chung, WSBA #51377 nchung@tousley.com 6300/001/450388.1 Case 3:17-cv-05088-RBL Document 24-1 Filed 04/24/17 Page 3 of 3