Intelytics, Inc. v. Modiv Media, Inc. et al, No. 1:2012cv00636 - Document 27 (D.R.I. 2013)
Court Description: ORDER granting in part and denying in part 15 Motion to Strike 10 Answer to Complaint, Counterclaim and to Dismiss Counterclaims or, in the alternative, for a More Definite Statement. So Ordered by Judge William E. Smith on 5/16/13. (Jackson, Ryan)
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Intelytics, Inc. v. Modiv Media, Inc. et al Doc. 27 UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND ___________________________________ ) ) ) Plaintiff, ) v. ) ) MODIV MEDIA, INC. and CATALINA ) MARKETING CORPORATION, ) ) Defendants. ) ___________________________________) INTELYTICS INC., C.A. No. 12-636 S ORDER WILLIAM E. SMITH, United States District Judge. On March 6, 2013, Plaintiff Intelytics Inc. filed a motion to strike and/or dismiss various portions of Defendants Modiv Media, Inc. and Catalina Marketing Corporation’s Answer. (ECF No. more 15.) In the definite statement. alternative, (Id.) Plaintiff moved Court affirmative struck defenses Defendants’ (the a The Court heard arguments on May 6, 2013, and gave a partial ruling from the bench. the for fifth, former two Specifically, sixth, without and eighth prejudice) paragraphs seven and eight of Defendants’ counterclaim. and The remaining issues were taken under advisement, and the Court now rules as follows: • Plaintiff’s motion to strike paragraphs eleven, twelve, fourteen, nineteen, twenty, and twenty-two of Dockets.Justia.com Defendants’ Answer is DENIED. Supreme Court’s Genentech, Inc., Both parties rely on the decision in 549 118, U.S. MedImmune, 124 Inc. (2007), v. which, Plaintiff concedes, found that the use of the phrase “any valid claim” is acceptable if, when read in the context of the entire pleading, the phrase’s meaning is clear. That is the situation presented here. A full and fair reading of Defendants’ Answer – including the affirmative defenses and Defendants’ intent obvious. counterclaims – makes As in MedImmune, Defendants are arguing that the ‘889 Patent is invalid, but even if the Patent or any part of it is deemed valid, Defendants did not infringe it. • Plaintiff’s motion to strike Defendants’ second affirmative defense for non-infringement is DENIED. As just explained, Defendants’ use of “any valid claim” has a clear and obvious meaning when read in context. This is especially true considering the affirmative defense is labeled “Non-Infringement” and the third affirmative defense located on the same page is entitled “Invalidity.” • Plaintiff’s motion to strike Defendants’ affirmative defense for invalidity is DENIED. cites to a number of cases 2 which find third Plaintiff that simply asserting invalidity multiple statutes, insufficient. and basing all in that the assertion disjunctive, on is See, e.g., Ferring B.V. v. Wastson Labs., Inc., Nos. 3:11-cv-00481-RCJ-VPC, 3:11-cv-00485-RCJ-VPC, 3:11-cv-00853-RCJ-VPC, 3:11-cv-00854-RCJ-VPC, 2012 WL 607539, at *3 (D. Nev. Feb. 24, 2012); TecSec, Inc. v. Protegrity, Inc., No. CIVA2:01CV233, 2001 WL 802064, at *2 (E.D. Va. June 27, 2001). more than this. statutes, the Defendants, however, do In addition to listing the applicable third affirmative defense provides a patent and four United States Patent Publications as support for the invalidity defense. This satisfies the requirement of Rule 8(c) of the Federal Rules of Civil Procedure that affirmative defenses be “affirmatively state[d].” Fed. R. Civ. P. 8(c). Plaintiff is sufficiently on notice. • Plaintiff’s motion to strike Defendants’ fourth affirmative defense for waiver, estoppel, and laches is DENIED. Defendants have “affirmatively avoidance or affirmative defense.” 8(c). state[d] any Fed. R. Civ. P. Indeed, Plaintiff admitted that the issue is not that Defendants do not put any allegations or factual support into the defense, but rather that what they do state does not add up to laches or any sort of waiver. 3 This argument, however, goes to whether the affirmative defense will be successful properly pleaded. Defendants may discovery. level and not whether it is Plaintiff may be entirely correct and end up dropping this defense after But at this stage of the proceedings, the of detail and proof Plaintiff seeks is not required. • Plaintiff’s motion to dismiss Defendants’ first counterclaim for a declaratory judgment of invalidity is DENIED. Similar to its argument regarding the third affirmative defense, Plaintiff contends that by listing numerous statutes, conclusory.” the counterclaim is “wholly The argument fails here as well. Unlike the cases cited by Plaintiff, where the counterclaims only list the relevant statutory provisions, Defendants’ counterclaim also adds the following clause: “because, for example, they are anticipated or rendered obvious at least by U.S. Publication Patent No. Nos. 6,014,638 and 2002/0178091, U.S. Patent 2004/0181466, 2004/0249717, and 2006/0143067 and/or other art, either alone or in combination.” This added phrase provides the necessary invalidity, factual support readily for Defendants’ distinguishes claim of Defendants’ counterclaim from the cited cases, and satisfies Rule 4 8(a)’s requirement of “a short and plain statement of the claim relief.” • showing that the pleader is entitled to Fed. R. Civ. P. 8(a). 1 Plaintiff’s motion counterclaim to for a dismiss Defendants’ declaratory judgment second of non- infringement is GRANTED without prejudice to Defendants. The ‘889 Patent is publicly available and is attached to the Complaint. Defendants, allegedly-infringing product, as are inventors in as of good the of a position as anybody, if not in a better position, to evaluate whether or not they are infringing upon the ‘889 Patent. infringement, Plaintiff’s The determinative information regarding therefore, possession, is and not thus solely the information and belief” is inappropriate. use within of “on See, e.g., Menard v. CSX Transp., Inc., 698 F.3d 40, 44 (1st Cir. 2012); Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1279 n.3 (D.C. Cir. 1994). used the phrase Defendants’ argument that they because they were uncertain what Plaintiff was basing its claim on is not persuasive. 1 The parties dispute whether the heightened pleading standard announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies to patent counterclaims. The Court need not decide this issue because the counterclaim as pleaded provides sufficient facts to meet Twombly and Iqbal’s plausibility requirement. 5 For Defendants’ non-infringement counterclaim to pass muster under Rule 8, Defendants cannot merely speculate but must provide some factual support for their position that they are not infringing on the Patent. 2 IT IS SO ORDERED. /s/ William E. Smith William E. Smith United States District Judge Date: May 16, 2013 2 Plaintiff also challenges the validity of this counterclaim due to the use of the phrase “any valid claim.” The Court rejects that argument for the same reasons already discussed in the answer and affirmative defense contexts. 6
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