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)

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NOT FOR CITATION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

[e-mail], [e-mail]

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