United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Drucker Labs, L.P.'s Motion to
Dismiss Plaintiff's First Amended Complaint (Dkt. #15).
After reviewing the relevant pleadings, the Court denies the
September 9, 2016, Voit Technologies, LLC
(“Voit”) filed its complaint against Drucker
Labs, L.P. (“Drucker”), alleging direct patent
infringement of U.S. Patent No. 6, 226, 412 B1 (the
“'412 Patent”) along with a request that such
infringement be deemed willful (Dkt. #1). On November 7,
2016, Drucker filed a motion to dismiss Voit's original
complaint for failure to state a claim for both direct
infringement and for willful infringement (Dkt. #5). In
response, Voit amended its complaint (the “First
Amended Complaint”) and removed the request for willful
infringement (Dkt. #11).
December 19, 2016, Drucker filed a motion to dismiss
Voit's First Amended Complaint (Dkt. #15). On January 13,
2017, Voit filed a response (Dkt. #19). On January 30, 2017,
Drucker filed a reply (Dkt. #22). On February 20, 2017, Voit
filed a sur-reply (Dkt. #28).
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face.
‘“A claim has facial plausibility when the
plaintiff pleads factual content that allows the [C]ourt to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“But where the well-pleaded facts do not permit the
[C]ourt to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 F. App'x 466, 470 (5th Cir. 2009)
(citation omitted). This evaluation will “be a
context-specific task that requires the reviewing [C]ourt to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.”' Id. at 678 (quoting
Twombly, 550 U.S. at 570).
'412 Patent claims “a method of buying and selling
an item relating to unique subjects.” '412 Patent
at 11:5-6. Drucker asserts that the Court must dismiss
Voit's First Amended Complaint because Voit has not
established direct infringement of the '412 Patent.
Specifically, Drucker argues that it neither practices every
step of the claimed method nor directs or controls any entity
that does so. Voit responds that it adequately pleaded direct
infringement. Voit contends the First Amended Complaint and
materials cited therein show that Drucker directed or control
the Volusion e-commerce software and hardware to perform the
alleged infringer directly infringes a patent if the
infringer, without authority, “makes, uses, offers to
sell or sells any patented invention, within the United
States or imports into the United States any patented
invention during the term of the patent.” 35 U.S.C.
§ 271(a). Where the patented invention is a method,
“[d]irect infringement under § 271(a) occurs where
all steps of a claimed method are performed by or
attributable to a single entity.” Akamai Techs.,
Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022
(Fed. Cir. 2015). “An entity is responsible for
others' performance of method steps in two circumstances:
(1) where the entity directs or controls the others'
performance; and (2) where the actors form a joint
enterprise.” Id. In determining whether one
party directs or controls another, the Federal Circuit has
stated that it will consider the general principles of
vicarious liability and hold “an actor liable for
infringement under § 271(a) if it acts through an agent
(applying traditional agency principles) or contracts with
another to perform one or more steps of a claimed
method.” Id. at 1022-23 (citing
BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373,
1379-81 (Fed. Cir. 2007)).
Voit alleges in its First Amended Complaint that
“Drucker is considered to not perform any of the
claimed steps itself (Dkt. #11 at ¶ 15). Voit further
alleges that Drucker contracts with another entity “to
perform such steps pursuant to a service agreement, and
Drucker conditions payment to such entity upon such
entity's performance of such steps” (Dkt. #11 at
¶ 16). Taking these facts as true and viewing them in
the light most favorable ...