United States District Court, D. Delaware
Geoffrey G. Grivner, Buchanan Ingersoll & Rooney PC,
Wilmington, DE, Philip L. Hirschhorn, Jennifer Liu, Buchanan
Ingersoll & Rooney PC, New York, New York, Erin M.
Dunston, Kimberly E. Coghill, Anand Mohan, Buchanan Ingersoll
& Rooney PC, Alexandria, Virginia - Attorneys for
J. Balick, Andrew C. Mayo, Ashby & Geddes, Wilmington,
DE, Ronald S. Lemieux, Tamara D. Fraizer, Vid R. Bhakar,
Squire Patton Boggs (US) LLP, Palo Alto, CA, Theresa A.
Rakocy, Squire Patton Boggs (US) LLP, Cleveland, OH -
Attorneys for Defendants
NOREIKA, U.S. DISTRICT JUDGE
the Court is Defendant Elekta Inc.'s Motion to Dismiss or
Transfer for Improper Venue, and Defendant IMP AC Medical
Systems, Inc.'s (“IMP AC”) Motion to Dismiss
for Failure to State a Claim. (D.I. 11). Plaintiff Best
Medical International, Inc. (“Plaintiff or
“Best”) opposes Elekta Inc.'s and IMP AC s
motions. (D.I. 26). For the reasons set forth below, the
Court will grant IMPAC's motion and will grant-in-part
and deny-in-part Elekta Inc.'s motion.
initiated this action on October 16, 2018, accusing Elekta
Inc. and IMPAC as well as Elekta AB, Elekta Holdings U.S.,
Inc., and Elekta Ltd. of patent infringement. (D.I. 1; see
also D.I. 9). Elekta Inc. is a Georgia corporation with
a principal place of business in Atlanta, Georgia. (D.I. 9
¶ 12). IMPAC was a Delaware corporation with a principal
place of business in Sunnyvale, California. (Id.
¶ 16). On August 1, 2017, as a result of a merger
agreement between Elekta Inc. and IMPAC, IMPAC was merged
into Elekta Inc. (D.I. 13 ¶ 15). Following the merger,
Elekta Inc. “succeeded to all of the rights,
privileges, powers, property, debts, obligation and
liabilities of IMPAC.” (Id. ¶ 16
(internal quotation marks omitted)). Moreover, as a result of
the merger, Elekta Inc. “acquired all of IMPAC's
assets and took over IMPAC's businesses.”
(Id. ¶ 17).
Motion to Dismiss Under Rule 12(b)(6)
ruling on a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must accept all
well-pleaded factual allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
See Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir.
2010); see also Phillips v. Cty. of Allegheny, 515
F.3d 224, 232-33 (3d Cir. 2008). “[A] court need not
‘accept as true allegations that contradict matters
properly subject to judicial notice or by exhibit,' such
as the claims and the patent specification.”
Secured Mail Sols. LLC v. Universal Wilde, Inc., 873
F.3d 905, 913 (Fed. Cir. 2017) (quoting Anderson v.
Kimberly-Clark Corp., 570 Fed.Appx. 927, 931 (Fed. Cir.
2014)). Nor is the Court required to accept as true bald
assertions, unsupported conclusions or unwarranted
inferences. See TriPlay, Inc. v. WhatsApp Inc., No.
13-1703 (LPS) (CJB), 2018 WL 1479027, at *3 (D. Del. Mar. 27,
2018). Dismissal under Rule 12(b)(6) is only appropriate if a
complaint does not contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009). This plausibility standard obligates a plaintiff
to provide “more than labels and conclusions, and a
formulaic recitation of elements of a cause of action.”
Twombly, 550 U.S. at 555. Instead, the pleadings
must provide sufficient factual allegations to allow the
Court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 506 U.S. at 678.
Motion to Dismiss Under Rule 12(b)(3)
in patent infringement cases is controlled exclusively by 28
U.S.C. § 1400(b). See TC Heartland LLC v. Kraft
Foods Grp. Brands LLC, 137 S.Ct. 1514, 1516 (2017).
“Section 1400(b), like its predecessor statutes, is
intended to be restrictive of venue in patent cases compared
with the broad general venue provision.” In re ZTE
(USA) Inc., 890 F.3d 1008, 1014 (Fed. Cir. 2018). Thus,
under § 1400(b), patent infringement actions “may
be brought in the judicial district where the defendant
resides, or where the defendant has committed acts of
infringement and has a regular and established place of
business.” 28 U.S.C. § 1400(b). Under the first
prong of § 1400(b), a domestic corporation
“resides” only in its state of incorporation.
TC Heartland, 137 S.Ct. at 1521. Under the second
prong of § 1400(b), for a corporation to a have regular
and established place of business, three requirements must be
met: “(1) there must be a physical place in the
district; (2) it must be a regular and established place of
business; and (3) it must be the place of the
defendant.” In re Cray Inc., 871 F.3d 1355,
1360 (Fed. Cir. 2017).
may file a motion to dismiss for improper venue pursuant to
Rule 12(b)(3). “[U]pon motion by the Defendant
challenging venue in a patent case, the Plaintiff bears the
burden of establishing proper venue.” ZTE, 890
F.3d at 1013. “Generally, ‘it is not necessary
for the plaintiff to include allegations in his complaint
showing that venue is proper.'” Novartis Pharm.
Corp. v. Accord Healthcare Inc., No. 18-1043 (LPS), 2019
WL 2502535, at *2 (D. Del. June 17, 2019) (quoting Great
W. Mining & Mineral Co. v. ADR Options, Inc., 434
Fed.Appx. 83, 86-87 (3d Cir. 2011)). In considering a motion
to dismiss for improper venue, the Court “accept[s] as
true all of the allegations in the complaint, unless those
allegations are contradicted by the defendants'
[evidence], ” such as affidavits. Bockman v. First
Am. Mktg. Corp., 549 Fed.Appx. 157, 158 n.1 (3d Cir.
2012). If the Court determines that venue is improper, the
Court “shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in
which it could have been brought.” 28 U.S.C. §
1406(a). “Dismissal is considered to be a harsh remedy
. . . and transfer of venue to another district in which the
action could originally have been brought, is the preferred
remedy.” Genuine Enabling Tech., LLC v. Nintendo
Co., 369 F.Supp.3d 590, 593 (D. Del. 2019) (quoting
Spiniello Cos. v. Moyneir, No. 13-5145 (KM) (SCM),
2014 WL 7205349, at *5 (D.N.J. Dec. 17, 2014)) (internal
quotation marks omitted).
IMPAC's Motion to Dismiss for Failure ...