United States District Court, D. Delaware
RICHARD G. ANDREWS, District Judge.
The Defendants filed a Motion for Summary Judgment for Dismissal of Improper Defendants ThyssenKrupp Elevator Americas Corporation ("TKEA") and ThyssenKrupp Elevator Manufacturing Incorporated ("TKEM") and All Claims of Indirect Infringement. (D.I. 486). The motion is fully briefed. (D.I. 487, 502, 506). The Defendants' motion is GRANTED in part and DISMISSED AS MOOT in part for the reasons stated below.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.Civ.P. 56(a). The moving party has the initial burden of proving the absence of a genuinely disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute about a material fact is genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden on the moving party may be discharged by demonstrating that there is an absence of evidence supporting the non-moving party's case. Celotex, 477 U.S. at 325.
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing party] do not establish the absence... of a genuine dispute...." FED.R. CIV.P. 56(c)(1).
When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49. If the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp., 477 U.S. at 322.
ThyssenKrupp Elevator Americas Corporation
The Defendants contend that TKEA "is merely a holding company, and has not engaged in any activity that could be considered an infringing act." (D.I. 487 at 6). The Plaintiff responds by citing to the Defendants' website, which indicates that TKEA has 13, 500 employees and that TKEA oversees all business for ThyssenKrupp's U.S. operations. (D.I. 502 at 6). The Plaintiff also argues that evidence located on TKEA's Facebook account and twitter account along with on line job postings confirm TKEA's liability. Id. at 6-7. Finally, the Plaintiff states that TKEA has the same board of directors as TKEM and ThyssenKrupp Elevators Corporation ("TKEC"). Id. at 9. As further evidence, the Plaintiff argues that TKEA's removal of the phrase "Holding Company" from its name provides evidence that TKEA is no longer simply a holding company. Id. at 8. The Defendants reply that the Plaintiff is mistaking ThyssenKrupp's use of the name "ThyssenKrupp Elevator Americas, " which is generally used to identify all of the relevant companies, and "ThyssenKrupp Elevator Americas Corporation." The Court agrees with the Defendants that the above evidence, viewed in the light most favorable to the Plaintiff, does not establish any direct infringement by TKEA.
Furthermore, the Plaintiffs alter ego theory is unconvincing.
Under the alter ego analysis, a subsidiary may be regarded as the alter ego of its parent corporation and render the parent liable if two requirements are met: (1) "a lack of attention to corporate formalities, such as where the assets of two entities are commingled, and their operations intertwined, " or "where a corporate parent exercises complete domination and control over its subsidiary, " and (2) the use of the corporate form would cause fraud or a similar injustice.
StrikeForce Technologies, Inc. v. PhoneFactor, Inc., 2013 WL 6002850 at *4 (D.Del. Nov. 13, 2013). The Plaintiff makes no showing that TKEA's assets were or are commingled with TKEM or TKEC's assets, that TKEA exercises dominion or control over TKEC and/or TKEM,  or make any allegation of corporate fraud.
The Plaintiffs agency theory is equally unpersuasive.
Agency theory treats the parent and its subsidiary as two separate corporate entities, holding the parent liable for the specific actions it directed or authorized the subsidiary to perform. While agency theory requires a close connection between the relationship of the corporations and the cause of action, it does not apply solely because the parent has dominion and control over the subsidiary. Under this theory, only the conduct shown to be instigated by the parent may be attributed to the parent.
Id. at *5. Here, while the Plaintiff alleges direct interaction between TKEA and TKEC and/or TKEM, the law requires "dominion and control." Furthermore, no facts are proffered by the Plaintiff that would show that the ...