Pragmatus AV, LLC v. Facebook, Inc.

Filing 11

Memorandum in Support re 10 MOTION to Dismiss or, in the Alternative, for a More Definite Statement filed by Facebook, Inc.. (Attachments: # 1 Declaration of Justin P.D. Wilcox, # 2 Exhibit A to the Wilcox Declaration)(Wilcox, Justin)

EXHIBIT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 08-23543-CIV-JORDAN
QUITO ENTERPRISES, LLC,
Plaintiff
vs.
NETFLIX, INC., et al.,
Defendants
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ORDER GRANTING MOTION TO DISMISS
NBC Universal’s and News Corp.’s motion to dismiss [D.E. 99] is

GRANTED .

NBC

Universal’s and News Corp.’s motion for oral argument [D.E. 100] is DENIED .
This is a patent infringement case in which Quito Enterprises alleges that the defendants
make, use, license, sell, offer for sale, or supply internet media products and associated services that
infringe its Patent No. 5,890,152, entitled “Personal Feedback Browser for Obtaining Media Files.”
See Compl. ¶¶ 20-21. The sole count in the complaint asserts that, upon information and belief,
each defendant has infringed and continues to infringe the ‘152 Patent by making, using, offering
to sell, selling, and/or importing internet media products and associated services that utilize the
systems and methods disclosed and claimed in the ‘152 Patent. No specific products or claims,
however, are identified. See id. at ¶¶ 23-35. In fact, the same paragraph, with identical language, is
asserted against each of the thirteen defendants. See id.
The allegations in the complaint are conclusory and fail to assert sufficient factual details to
survive a motion to dismiss under Rule 12(b)(6). See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
554-55 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations . . . a plaintiff’s obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do”) (internal quotation marks and citations omitted). See also Financial Sec.
Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. 2007) (citing Twombly, 550 U.S. at
554-55). The factual allegations in the complaint must “possess enough heft” to set forth “a
plausible entitlement to relief.” Id.

Here, the allegations in the complaint fail to meet this standard as there is no specificity
whatsoever regarding when the alleged infringement occurred, what products are infringing on the
‘152 Patent, and whether the alleged infringement is direct or indirect. The complaint is therefore
DISMISSED WITHOUT PREJUDICE

as to NBC Universal and News Corp.

By no later than August 18, 2009, Quito Enterprises must file its amended complaint. In light
of my decision to dismiss the complaint without prejudice, I need not address News Corp.’s personal
jurisdiction arguments at this time.
DONE

and ORDERED in chambers in Miami, Florida, this 4th day of August, 2009.

_______________________
Adalberto Jordan
United States District Judge
Copy to:

All counsel of record

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