United States District Court, D. Delaware
ZIMMER SURGICAL, INC., and DORNOCH MEDICAL SYSTEMS, INC., Plaintiffs,
STRYKER CORPORATION and STRYKER SALES CORPORATION, Defendants.
filed a motion to dismiss. (D.I. 8). I referred the motion to
the Magistrate Judge. (D.I. 15). The Magistrate Judge has
filed a Report and Recommendation. (D.I. 19). Defendants have
filed objections (D.I. 22), to which Plaintiffs have
responded. (D.I. 29). The matter is now before this Court.
reasons that follow, IT IS HEREBY ORDERED
that the Court OVERRULES Defendants'
Objections in part and SUSTAINS them in
STANDARD OF REVIEW
magistrate judge may make a report and recommendation
regarding a case dispositive motion. BeazerE., Inc. v.
Mead Corp., 412 F.3d 429, 444 (3d Cir. 2005). A motion
to dismiss is a dispositive motion. D.DEL. LR 72.1(3). My
review of any objections to the Magistrate Judge's
recommendation is therefore de novo. 28 U.S.C.
§636(b)(1); Fed.R.Civ.P. 72(b)(3); Masimo Corp. v.
Philips Elec. N. Am. Corp., 62 F.Supp.3d 368, 379 (D.
Del. 2014). I may "accept, reject, or modify" the
Magistrate Judge's recommended disposition. Fed.R.Civ.P.
DISMISSAL OF A CLAIM UNDER RULE 12(b)(6)
requires a complainant to provide "a short and plain
statement of the claim showing that the pleader is entitled
to relief...." Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6)
allows the accused party to bring a motion to dismiss the
claim for failing to meet this standard. A Rule 12(b)(6)
motion may be granted only if, accepting the well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the complainant, a court concludes
that those allegations "could not raise a claim of
entitlement to relief." Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 558(2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Mem'lHosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at
motion urged dismissal of the complaint, arguing that it did
not state a claim for direct, induced, contributory, or
willful infringement. The Magistrate Judge recommended that
the motion be denied as to the allegations of direct and
willful infringement, and granted in part and denied in part
as to the indirect infringement claims. Defendants object
only to the Magistrate Judge's recommendation on (1)
willful infringement and (2) "consumables" as an
accused product. I have reviewed the entire Report and
Recommendation, and, as to the portions to which no
objections were taken, I will ADOPT the
Report's recommendation. As for the objections to the
inclusion of "consumables" as an accused product,
in view of the fact that the accused products are identified
as the Neptune 2 Waste Management System and Neptune 3 Waste
Management System, I do not require further specificity about
what role, if any, "consumables" play in the
infringement analysis. Thus, I summarily
OVERRULE Defendants' second objection.
patent issued June 3, 2014. Suit was filed August 8, 2016.
The Magistrate Judge held that Plaintiffs had not pled
"actual knowledge" of the '920 patent before
the filing of the complaint. (D.I. 19 at 12-13). Until the
decision in Halo Electronics, Inc. v. Pulse Electronics,
Inc., 136 S.C.t. 1923 (2016), that would have been a
sufficient finding for me (and was in a number of orders) to
grant a motion to dismiss a claim of willfulness, as I
interpreted In re Seagate Technology, 497 F.3d 1360
(Fed. Cir. 2007), to prohibit a claim of willfulness based
only on knowledge of the patent gained through litigation. My
view was not a universal view, see Apple Inc. v. Samsung
Electronics Co., 2017 WL 2720220, *10 (N.D. Cal. June
22, 2017), but I do not believe the Federal Circuit ever
definitively resolved the issue.
Halo, the district courts continue to split on this
and related issues. See, e.g., Id. at * 10-11
(citing other decisions); Continental Circuits LLC v.
Intel Corp., 2017 WL 2651709, *7-8 (D. Ariz. June 16,
2017) (same). I am going to conclude, based on the analysis
in Apple v. Samsung, that allegations of post-filing
conduct can support a finding of willfulness. Those
allegations have to have some factual content. I leave for
another time how much factual content is required, see
Continental Circuits, 2017 WL 2651709, at *8, as
Plaintiffs in this case have not pled any post-filing factual
am going to SUSTAIN Defendant's
objection to the Report's recommendation on willfulness.
I will give leave to Plaintiffs to move to amend the
complaint now, but if Plaintiffs do not presently exercise
that option, they will ...