Via Vadis LLC v. Skype Inc. et al

Filing 62

MEMORANDUM ORDER granting 41 MOTION to Dismiss for Failure to State a Claim. All claims against Microsoft are DISMISSED WITHOUT PREJUDICE. Court will grant Plaintiff LEAVE TO AMEND for the limited purposeof adding Microsoft as a defendant until August 31, 2012 (see order for further details). Signed by Judge Richard G. Andrews on 7/6/2012. (ksr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VIA VADIS, LLC,
Plaintiff,

v.

Civil Action No. 11-507-RGA

SKYPE, INC., et al,
Defendants.

MEMORANDUM ORDER

Before the Court is a motion by Microsoft to dismiss the Second Amended Complaint for
failure to state a claim. (D.I. 41).
The Plaintiffs complaint is detailed in its allegations of direct and indirect patent
infringement by the SKYPE peer-to-peer voice over internet protocol communications systems,
methods, products and services. The one exception to the detail is its theory of why Microsoft
should be a defendant. Its most salient allegation is that, "On October 13, 2011, Microsoft
acquired all of the issued and outstanding shares of [Skype, and that Skype] was consolidated
into Microsoft's operation starting on [that date]." (D.I. 38, ~ 8). Other than that, there is no
substantive reference to Microsoft in the complaint. Rather, the five Skype defendants and
Microsoft are referred to as the "defendants" throughout the complaint. This manner of pleading,
while saving space, also results in factual allegations against Microsoft for actions that occurred
before October 13, 2011, which seem implausible.

(See~~

29, 38, 49). The complaint alleges

the continued corporate/LLC existence of the Skype defendants. Thus, the somewhat ambiguous
reference to consolidation of operations is undercut by the Plaintiffs own allegations.

Only minimal allegations are required to satisfy Form 18 and to state a claim of direct
infringement against Microsoft. See In re Bill ofLading Transmission and Processing System
Patent Litigation, 681 F.3d 1323, _ _, 2012 WL 2044605, *7 (Fed. Cir. June 7, 2012)

("whether [a complaint] adequately pleads direct infringement is to be measured by the
specificity required by Form 18. "). 1 There is sufficient ambiguity in the complaint about
Microsoft's responsibility for the alleged Skype infringement that I will grant the motion to
dismiss the claims of direct infringement.
The allegations against Microsoft are thus also insufficient to state a claim for indirect

fo.-

infringement. See generally id.

Thus, IT IS HEREBY ORDERED this{?_ day of July 2012, that:
1. The Defendant Microsoft's Motion to Dismiss (D.I. 41) is GRANTED. All claims
against Microsoft are DISMISSED WITHOUT PREJUDICE.
2. The Court's scheduling order provided that all amendments to the pleadings were to
be filed by June 30, 2012. (D.I. 48,

~

2). Briefing on the instant motion was finished about 2 Yz

months ago, and thus the Court will grant Plaintiff LEAVE TO AMEND for the limited purpose
of adding Microsoft as a defendant until August 31, 2012. The Court allows that longer-thanusual amount of time so that there is time for discovery for Plaintiff to determine whether it has a
factual basis to name Microsoft as a defendant.

1

The Federal Circuit further comments, "It will not always be true that a complaint which
contains just enough information to satisfY a governing form will be sufficient under
Twombly ...." Id. at_, 2012 WL 2044605, at *7 n.6. Given the citations that follow in the
footnote, I do not believe this is meant to be some sort of limitation on the holding in the text.