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John Keeler & Co., Inc. v. Heron Point Seafood, Inc.

United States District Court, N.D. Ohio, Eastern Division

August 28, 2017

JOHN KEELER & CO., INC., Plaintiff



         Currently pending before the court in the above-captioned case are Defendant Heron Point Seafood, Inc.'s (“Defendant” or “Heron Point”) Motion to Dismiss for Failure to State a Claim (Mot. to Dismiss, ECF No. 50) and Motion to Strike Infringement Contentions (Mot. to Strike, ECF No. 51). For the following reasons, the court denies both Motions.

         I. BACKGROUND

         Plaintiff John Keeler & Company, Inc.'s (“Plaintiff” or “Keeler”), a Florida corporation with its principal place of business in Miami, Florida, initiated the present action on July 28, 2014, alleging two counts of patent infringement involving U.S. Patent Nos. 8, 337, 922 and 8, 445, 046 (collectively, “patents-in-suit”), and one count of unjust enrichment. (Compl. ¶¶ 13-23, ECF No. 1.) The patents-in-suit comprise a method for packaging crabmeat, a key claim of which is an air to crabmeat ratio within a flexible pouch of about 13-20% by volume, designed to reduce the growth of certain bacteria. (Compl. Exs. A-B, ECF Nos. 1-1, 1-2.) Major limitations on the asserted claims include the sealing of crabmeat in a flexible pouch “comprising a multi-layer film, wherein said multi-layer film comprises at least one of polyethylene terepthalate, nylon, aluminum and polypropylene, ” as well as pasteurization of the sealed pouch for “80 to 160 minutes at a temperature ranging from about 185 [degrees Fahrenheit] to about 189 [degrees Fahrenheit].” (Id.)

         On July 8, 2016, upon Defendant Heron Point's Motion for a Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (ECF No. 35), the court: 1) denied judgment as to Plaintiff's claim of direct infringement; 2) denied judgment as to Plaintiff's claim of willful infringement, but dismissed the claim without prejudice; and 3) granted judgment for Plaintiff's claim for unjust enrichment. (Order 18, ECF No. 46.) The court further granted Keeler fourteen days to amend its claim for willful infringement. (Id.) In the same Order, the court denied Defendant's Motion for Sanctions (ECF No. 33) and Plaintiff's Motion to Be Allowed to Pursue a Process Other Than as Required by Local Patent Rule 3.1 (ECF No. 30), giving Keeler fourteen days to amend its Initial Infringement Contentions. (Id.)

         Keeler timely filed its Amended Complaint (Am. Compl., ECF No. 48.) and Amended Preliminary Infringement Contentions (“Infringement Contentions” or “Contentions”) (ECF No. 51-2) on July 5, 2016. In its Amended Complaint, Plaintiff alleges that Heron Point directly and willfully infringed the patents-in-suit when it “manufactured, used, sold, offered for sale, and/or imported” a pouched crabmeat product in the United States. (Am. Compl. ¶¶ 11, 13.)

         In response, Heron Point filed the instant Motion to Dismiss Plaintiff's Amended Complaint and Motion to Strike Infringement Contentions. The former contends that Keeler has failed to meet the pleading standard for direct patent infringement claims, following the abrogation of Rule 84 of the Federal Rules of Civil Procedure and the attached Form 18. (Mot. to Dismiss at 1, 5.) In the latter, Heron Point argues that Plaintiff's Infringement Contentions are insufficient under Local Patent Rule 3.1 and that the suit should not go forward until the Contentions are in compliance. (Mot. to Strike at 6.) The court addresses these arguments, and Plaintiff's responses to them, below.


         This case arises under an “Act of Congress relating to patents.” 28U.S.C. § 1338(a) (2014). As such, the law of the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) generally controls. See Id. § 1295(a)(1). The Federal Circuit, nonetheless, applies the law of the “regional circuit” to procedural matters. See Imation Corp. v. Koninklijke Philips Elecs. N.V., 586 F.3d 980, 984 (Fed. Cir. 2009). A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is procedural; therefore, the law of the U.S. Court of Appeals for the Sixth Circuit (“Sixth Circuit”) applies. See Id. (citing Rentrop v. Spectranetics Corp., 550 F.3d 1112, 1118 (Fed. Cir. 2008)).

         Under Rule 12(b)(6), a party may move for dismissal for failure to state a claim upon which relief can be granted in its responsive pleading. The court examines the pleadings of the parties and evaluates the legal sufficiency of the plaintiff's claim. See Mayer v. Mulod, 988 F.2d 635, 638 (6th Cir. 1993). The rules that once governed pleading in this context no longer apply. Amendments to the Federal Rules of Civil Procedure went into effect on December 1, 2015, including the abrogation of Rule 84 and the attached Form 18, which had laid out the pleading standard for claims of direct patent infringement. See K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1279 (Fed. Cir. 2013). The abrogation “does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.” Fed.R.Civ.P. 84 advisory committee's note to 2015 amendment. As most district courts have interpreted it, the “existing pleading standards” are those set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See, e.g., RAH Color Techs., LLC v. Ricoh USA, Inc., 194 F.Supp.3d 346, 350 (E.D. Pa. 2016) (first citing Atlas IP, LLC v. Exelon Corp., 189 F.Supp.3d 768, 774-75 (N.D. Ill. 2016); then citing Asghari-Kamrani v. United Servs. Auto. Ass'n, No 2:15-cv-478, 2016 WL 1253533, at *3 (E.D. Va. Mar. 22, 2016); and then citing Raindance Techs., Inc. v. 10x Genomics, Inc., No. 1:15-cv-152, 2016 WL 927143, at *2 (D. Del. Mar. 4, 2016)).

         As the U.S. Supreme Court further explained, the changes “shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Supreme Court of the United States, Order Amending the Federal Rules of Civil Procedure (Apr. 29, 2015).[1] Thus, equitable concerns may lead a court not to apply the new pleading standard to an action pending at the time of abrogation. But, the cases in which courts have found it to be unjust or impracticable to deny the safe haven of Form 18 are those in which plaintiffs filed their complaints before the effective date for the changes. See, e.g., Nexeon Ltd. v. Eaglepicher Techs., LLC, No. 1:15-cv-955, 2016 WL 4045474, at *4 (D. Del. July 26, 2016); Hologram USA, Inc. v. Pulse Evolution Corp., No. 2:14-cv-0772, 2016 WL 199417, at *2 n.1 (D. Nev. Jan. 15, 2016). In other cases, where the action was started prior to the abrogation, but parties filed amended pleadings after December 1, 2015, courts have applied Twombly and Iqbal. See, e.g., FootBalance Sys. v. Zero Gravity Inside, Inc., No. 3:15-cv-1058, 2016 WL 5786936, at *2-3 (S.D. Cal. Oct. 4, 2016) (finding that Twombly/Iqbal applied to a plaintiff's second amended complaint, filed two months after the abrogation, although the action was commenced six months prior to it); Sunrise Techs. v. Cimcon Lighting, 219 F.Supp.3d 260, 263 (D. Mass. 2016) (“Plaintiff should have been aware that Form 18 was abolished when it filed its amended complaint in March, 2016, three months after the new rules went into effect and nearly one year after the Supreme Court first announced the rule changes.”). Here, Keeler filed its Amended Complaint on July 5, 2016, eight months after the effective date of the abrogation, and more than a year after its announcement. Thus, it would hardly seem unjust to demand that Plaintiff follow the current pleading standard by meeting the requirements of Twombly and Iqbal.

         Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a plaintiff must set forth in its complaint a “short and plain statement of the claim showing that the pleader is entitled to relief.” Twombly, 550 U.S. at 544 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotations omitted); Iqbal, 556 U.S. at 677-78. These pleadings (and any documents or exhibits attached or incorporated by reference) are the only material that the court will consider when making its 12(b)(6) decision; factual allegations contained only in memoranda opposing motions to dismiss will be ignored. Luis v. Zang, 833 F.3d 619, 626 (6th Cir. 2016). See 2 Moore's Federal Practice §12.34[2] (Matthew Bender 3d ed. 2017). Such memoranda are not pleadings. See Fed. R. Civ. P. 7(a).

         When determining whether the plaintiff has stated a claim upon which relief can be granted, the court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The plaintiff's obligation to provide the grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Even though a complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the Complaint are true.” Id. A court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

         The Court in Iqbal, 556 U.S. at 678, further explained the “plausibility” requirement, stating that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Furthermore, “[t]he plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant acted unlawfully.” Id. This determination ...

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