Genetic Technologies Limited v. Agilent Technologies, Inc.

Filing 123

ORDER by Judge Richard Seeborg denying 89 Motion to Strike ; granting 90 Motion to Dismiss. (cl, COURT STAFF) (Filed on 8/11/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

For the Northern District of California

United States District Court

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GENETIC TECHNOLOGIES LIMITED,
11 an Australian corporation,

No. CV 12-01616 RS

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ORDER DENYING MOTION TO
STRIKE AND GRANTING MOTION TO
DISMISS

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Plaintiff,
v.

14 AGILENT TECHNOLOGIES, INC.,
15 a Delaware corporation,
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Defendant.
____________________________________/
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Pursuant to Civil Local Rule 7-1(b), plaintiff Genetic Technologies Limited’s motions to
dismiss and to strike have been submitted without oral argument. Both motions will be denied.

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1. Motion to strike

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Genetic seeks to strike the answer of defendant Agilent Technologies, Inc., contending it

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fails to comply with the requirement of Rule 8(b) of the Federal Rules of Civil Procedure that each

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allegation of a complaint be either admitted, denied, or responded to with a statement that the

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pleader lacks knowledge or information sufficient to form a belief about the truth of the allegation

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(which has the same effect as a denial). Genetic objects that Agilent has instead included assertions

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that the complaint comprises legal conclusions and material based on documents that “speak for

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themselves” or on “purported expert opinion,” which Agilent contends require no response.

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NO. CV 12-1616 RS
ORDER

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Relying primarily on Frank v. Wilber-Ellis Co. Salaried Employees Ltd. Plan, 2008 U.S. Dist.

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LEXIS 83127 (E.D. Cal. Sept. 24, 2008) and cases cited therein, Genetic insists such content in

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answers is improper and subject to being stricken.

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Granting or denying a motion to strike lies within the discretion of the court. See Federal

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Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 (9th Cir. 1990). Barnes v. AT&T

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Pension Benefit Plan, 718 F.Supp.2d 1167, 1170 (N.D. Cal 2010) (Rule 12(f) motions “are

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generally disfavored because the motions may be used as delaying tactics and because of the strong

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policy favoring resolution on the merits.”) The Frank decision, and those cited by that court,

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reflect a concern that defendants not be permitted to “duck specific factual allegations.”
Here, Agilent’s answer does not represent an effort to avoid taking a position on the truth or

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For the Northern District of California

United States District Court

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falsity of any specific allegation of fact. The answer adequately admits or denies each allegation (or

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states a lack of knowledge or information sufficient to do so). While the propriety of including

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additional matter, essentially explanatory and/or argumentative in nature, is debatable, in this

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instance Agilent is not hiding behind those further statements. Genetic complains it cannot

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determine which portions of various paragraphs Agilent is denying because the answer frequently

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sets out the purportedly improper material first, and then denies only the “remaining” allegations.

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Read with a hyper-literal eye, there may indeed be some such ambiguity. In the notice pleading

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system, however, there is no undue uncertainty as to what has been admitted, and what remains to

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be litigated in this action. No salutary purpose would be served by requiring minor wording

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changes to remove what is at most only theoretical ambiguity. The motion to strike is denied.

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2. Motion to dismiss

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Agilent’s Counterclaim IV is entitled “Bad Faith Litigation” and alleges that “Agilent is

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entitled to attorneys’ fees, expenses, and costs of this action pursuant to 35 U.S.C. § 285.”

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Although Agilent has pointed to some older out-of-district cases in which such claims were

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permitted to stand as independent counts, a right to attorney fees under § 285 arises, if at all, only at

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the conclusion of the litigation. As such, it is not a stand-alone claim to be pleaded and litigated

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NO. CV 12-1616 RS
ORDER

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during the course of the proceeding. See generally, Shum v. Intel Corp., 629 F.3d 1360, 1367 (Fed.

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Cir. 2010) (prevailing party determination to be made at conclusion of action). Accordingly, the

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motion to dismiss will be granted. That said, the dismissal of the count has no substantive or

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practical effect on the litigation, or the parties’ ultimate rights. Contrary to Genetic’s argument, the

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mere assertion in the counterclaim of a right to fees under § 285 would not have expanded the

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permissible scope of discovery or of the trial. Thus, while the dismissal motion may have been

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technically well-taken, it did not serve materially to advance the litigation or its efficient resolution.

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Obviously, leave to amend would serve no purpose either, and will not be granted.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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DATED: 8/11/14
_______________________________
RICHARD SEEBORG
United States District Judge

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NO. CV 12-1616 RS
ORDER

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