Simonian v. Monster Cable Products, Inc.

Filing 76

ORDER Deeming First Amended Complaint Dismissed; Finding 69 Defendant's Motion to Dismiss Moot. Signed by Judge Koh on 5/18/2011. (lhklc1, COURT STAFF) (Filed on 5/18/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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THOMAS A. SIMONIAN,
Plaintiff,
v.
MONSTER CABLE PRODUCTS, INC.,
Defendant.

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Case No.: 10-CV-05544-LHK
ORDER DEEMING FIRST AMENDED
COMPLAINT DISMISSED; FINDING
DEFENDANT’S MOTION TO DISMISS
MOOT

On March 14, 2011, Defendant Monster Cable Productions, Inc. filed a motion to dismiss

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Plaintiff Thomas Simonian’s First Amended Complaint (“FAC”) for False Patent Marking.

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Defendant’s motion is set for hearing on June 2, 2011. On March 15, 2011, after Defendant filed

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its motion, the Federal Circuit issued a decision clarifying the pleading standard applicable to false

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marking claims under 35 U.S.C. § 292. In re BP Lubricants USA Inc., --- F.3d ----, 2011 WL

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873147, Misc. No. 960 (Fed. Cir. Mar. 15, 2011). Pursuant to the Federal Circuit’s recent decision,

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“Rule 9(b)’s particularity requirement applies to false marking claims and . . . a complaint alleging

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false marking is insufficient when it only asserts conclusory allegations that a defendant is a

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‘sophisticated company’ and ‘knew or should have known’ that the patent expired.” Id. at *1. In

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his opposition to Defendant’s motion to dismiss, Plaintiff appears to concede that the FAC is

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deficient under this standard. See Opp’n to Mot. to Dismiss at 2, ECF No. 74. Therefore, instead

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Case No.: 10-CV-05544-LHK
ORDER DEEMING FIRST AMENDED COMPLAINT DISMISSED; FINDING DEFENDANT’S MOTION TO
DISMISS MOOT

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of opposing Defendant’s motion by arguing that the FAC sufficiently alleges Defendant’s intent to

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deceive the public, Plaintiff has filed a motion for leave to amend.

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In light of Plaintiff’s apparent concession that the FAC is deficient under the Federal

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Circuit’s recent decision in BP Lubricants and Plaintiff’s motion for leave to amend, the Court

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hereby deems Plaintiff’s FAC dismissed and finds that Defendant’s motion to dismiss the FAC is

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moot. Accordingly, the Court vacates the hearing on Defendant’s motion previously scheduled for

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June 2, 2011. Plaintiff’s motion for leave to amend shall be heard on June 16, 2011, at 1:30 p.m.

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If the motion can be resolved without a hearing, the Court will notify the parties and vacate the

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motion hearing.

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: May 18, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-05544-LHK
ORDER DEEMING FIRST AMENDED COMPLAINT DISMISSED; FINDING DEFENDANT’S MOTION TO
DISMISS MOOT