Tetsuya et al-v- Amazon.Com,Inc

Filing 28

Order by Magistrate Judge Howard R. Lloyd granting 10 defendant's Motion to Dismiss with leave to amend. 6/28/2011 motion hearing vacated. Plaintiff's amended complaint due within 30 days from the date of this order.(hrllc2, COURT STAFF) (Filed on 6/22/2011)

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1 2 *E-FILED 06-22-2011* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 12 13 14 15 No. C11-01210 HRL JOE NOMURA TETSUYA, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITH LEAVE TO AMEND Plaintiff, v. [Re: Docket No. 10] AMAZON.COM, INC., Defendant. / 16 17 Plaintiff Joe Nomura Tetsuya sues for alleged infringement of U.S. Patent No. 7,254,622 18 (‘622 patent). Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant Amazon.com, 19 Inc. (Amazon) moves to dismiss the complaint. Amazon moves, in the alternative, to strike 20 portions of the complaint pursuant to Federal Rule of Civil Procedure 12(f). All parties have 21 expressly consented that all proceedings in this matter may be heard and finally adjudicated by 22 the undersigned. 28 U.S.C. § 636(c); FED. R. CIV. P. 73. The matter is deemed suitable for 23 determination without oral argument, and the June 28, 2011 hearing is vacated. CIV. L.R. 7- 24 1(b). Upon consideration of the moving and responding papers, the court grants defendant’s 25 motion to dismiss with leave to amend. 26 27 28 LEGAL STANDARD On motion, a court may dismiss a complaint for failure to state a claim. FED. R. CIV. P. 12(b)(6). The federal rules require that a complaint include a “short and plain statement” 1 showing the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The statement must “raise a 2 right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 55 3 (2007). However, only plausible claims for relief with survive a motion to dismiss. Ashcroft v. 4 Iqbal, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). A claim is plausible if its factual content 5 “allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. at 1949. A plaintiff does not have to provide detailed facts, but the 7 pleading must include “more than an unadorned, the-defendant-unlawfully-harmed-me 8 accusation.” Id. at 1950. complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). The 11 For the Northern District of California In deciding a motion to dismiss, the court is ordinarily limited to the face of the 10 United States District Court 9 factual allegations pled in the complaint must be taken as true and reasonable inferences drawn 12 from them must be construed in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. 13 Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) 14 (citing Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)). However, the court 15 cannot assume that “the [plaintiff] can prove facts which [he or she] has not alleged.” 16 Associated General Contractors of California, Inc. v. California State Council of Carpenters, 17 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that are 18 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. 19 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Clegg v. Cult Awareness 20 Network, 18 F.3d 752, 754-55 (9th Cir. 1994)), amended on other grounds by 275 F.3d 1187 21 (9th Cir. 2001). 22 23 DISCUSSION As stated above, a claim is plausible if its factual content “allows the court to draw the 24 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 25 1949. Tetsuya’s Complaint fails to do so. For instance, Tetsuya fails to allege which claims of 26 the ’622 patent have been infringed and what Amazon products or services infringe them and 27 how. Instead, he simply alleges that the ’622 patent “was violated by [Amazon] by using the 28 methodology associated in the patents [sic] outlined business model . . ..” Complaint at 1. This 2 1 is not enough. Tetsuya’s references to 35 U.S.C. §§ 102(a)-(b), 103, and 154(d) are also 2 unclear. 35 U.S.C. §§ 102 and 103 involve patentability, not infringement. And, 35 U.S.C. § 3 154(d) involves a patent owner’s provisional rights to reasonable royalties, but Tetsuya never 4 alleges that Amazon had actual notice of the ’622 patent, a requirement under that section. 35 5 U.S.C. § 154(d)(1). In sum, Tetsuya’s complaint fails to state a claim upon which relief can be 6 granted. 7 8 Accordingly, Amazon’s motion to dismiss is granted. Because it is not clear that amendment would be futile, Tetsuya’s complaint is dismissed without prejudice. 9 ORDER Based on the foregoing, Amazon’s motion to dismiss is granted. The court does not 11 For the Northern District of California United States District Court 10 reach Amazon’s alternate motion to strike portions of the complaint. If Tetsuya elects to amend 12 his complaint, he shall file his amended pleading within 30 days from the date of this order. 13 14 SO ORDERED. Dated: June 22, 2011 15 HOWARD R. LLOYD 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3 1 5:11-cv-01210-HRL Notice has been electronically mailed to: 2 Bryan J. Sinclair bryan.sinclair@klgates.com, adrienne.wilson@klgates.com 3 4 5:11-cv-01210-HRL Notice mailed to: 5 Joe Nomura Tetsuya 3288 Pierce Street Suite C-129 Richmond, CA 94804 6 7 Pro Se Plaintiff 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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