United States District Court, D. Delaware
G. Day, Andrew C. Mayo, ASHBY & GEDDES, Wilmington, DE;
Guy Yonay (argued), Daniel Melman, PEARL COHEN ZEDEK LATZER
BARATZ LLP, New York, NY. Attorneys for Plaintiff.
L. Caponi, K&L GATES LLP, Wilmington, DE; Theodore
Angelis (argued), K&L GATES LLP, Seattle, WA; Eric A.
Prager, K&L GATES LLP, New York, NY. Attorneys for
ANDREWS, U.S. DISTRICT JUDGE:
before the Court is Defendants' Motion to Dismiss for
Failure to State a Claim and for Improper Venue (D.I. 25) and
related briefing (D.I. 26, 28, 30). The Court held oral
argument on November 16, 2017. (D.I. 43 ("Tr.")).
On December 22, 2017, Plaintiff filed a Motion for Leave to
File a Supplemental Brief in Opposition to Defendants'
Motion to Dismiss. (D.I. 36). The parties submitted
additional briefing. (D.I. 36-2, 37, 40).
reasons that follow, the Court will deny without prejudice
Defendants' Motion to Dismiss for Failure to State a
Claim and for Improper Venue, as to failure to state a claim,
and will grant that motion as to improper venue over Expedia,
Inc. (WA). (D.I. 25). The remaining Defendants may re-raise
the § 101 issue at summary judgment. The Court will
dismiss as moot Plaintiffs Motion for Leave to File a
Supplemental Brief in Opposition to Defendants' Motion to
Dismiss. (D.I. 36).
filed a patent infringement action on July 7, 2016 against
Defendant, alleging infringement of U.S. Patent No. 8, 064,
434 ("the '434 patent") and U.S Patent No. 9,
210, 142 ("the '142 patent"). (D.I. 1).
Plaintiff filed an amended complaint on July 7, 2017. (D.I.
alleges infringement of claim 1 of the '434 patent and
claims 1, 9, and 12 of the '142 patent. (Id.).
Claim 1 of the '434 patent provides:
1. A method for providing a user of a telephone device with a
capability to use Internet-based applications, which method
comprises the steps of:
transmitting from said telephone device an indication
towards a first server, denoting a request to be connected
to an Internet-based application residing at a second
providing said user with a menu from which the user
selects a requested Internet-based application;
after selecting an application, establishing a communication
path that extends between said telephone device and said
second server via said first server;
at said first server, creating a virtual client entity
specific to said telephone device and said Internet-based
application to be used, created specifically to allow
communication between said telephone device and said
Internet-based application residing at said second server,
and maintained only for the duration of a communication
session that is about to take place between said user and
said Internet-based application, thereby providing the user
of said telephone device with the capability to use said
Internet-based application; and
exchanging communications between said second server and said
('434 patent, claim 1). On July 21, 2017, Defendants
filed a Motion to Dismiss for Failure to State a Claim and
for Improper Venue. (D.I. 25).
Motion to Dismiss
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 Atl. 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'l Hosp., 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." See 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