Zimmer Surgical, Inc. et al v. Stryker Corporation et al
MEMORANDUM ORDER: The Objections (D.I. 22 ) are OVERRULED in part and SUSTAINED in part. The Magistrate Judge's Report and Recommendation (D.I. 19 ) is ADOPTED except as to the recommendation on willfulness. The Motion to Dismiss (D.I. 8 ) is GRANTED in part and DENIED in part. Plaintiffs are given leave to file an amended complaint within ten days of the date of this Order. Signed by Judge Richard G. Andrews on 8/29/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ZIMMER SURGICAL, INC., and
DORNOCH MEDICAL SYSTEMS, INC.,
Civil Action No. 16-679-RGA-MPT
STRYKER CORPORATION and
STRYKER SALES CORPORATION,
Defendants filed a motion to dismiss. (D.I. 8). I referred the motion to the Magistrate
Judge. (D.I. 15). The Magistrate Judge has filed a Report and Recommendation. (D.I. 19).
Defendants have filed objections (D.I. 22), to which Plaintiffs have responded. (D.I. 29). The
matter is now before this Court.
For the reasons that follow, IT IS HEREBY ORDERED that the Court OVERRULES
Defendants' Objections in part and SUSTAINS them in part.
A. STANDARD OF REVIEW
A magistrate judge may make a report and recommendation regarding a case dispositive
motion. Beazer E., Inc. v. Mead Corp., 412 F.3d 429, 444 (3d Cir. 2005). A motion to dismiss
is a dispositive motion. D.DEL. LR 72.1 (3). My review of any objections to the Magistrate
Judge's recommendation is therefore de nova. 28 U.S.C. §636(b)(l); FED. R. CIV. P. 72(b)(3);
Masimo Corp. v. Philips Elec. N Am. Corp., 62 F. Supp. 3d 368, 379 (D. Del. 2014). I may
"accept, reject, or modify'' the Magistrate Judge's recommended disposition. FED. R. CIV. P.
B. DISMISSAL OF A CLAIM UNDER RULE 12(b)(6)
Rule 8 requires a complainant to provide "a short and plain statement of the claim
showing that the pleader is entitled to relief.... " Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows the
accused party to bring a motion to dismiss the claim for failing to meet this standard. A Rule
12(b)(6) motion maybe granted only if, accepting the well-pleaded allegations in the complaint
as true and viewing them in the light most favorable to the complainant, a court concludes that
those allegations "could not raise a claim of entitlement to relief." Bell At/. Corp. v. Twombly,
550 U.S. 544, 558 (2007).
"Though 'detailed factual allegations' are not required, a complaint must do more than
simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of
action."' Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly,
550 U.S. at 555). I am "not required to credit bald assertions or legal conclusions improperly
alleged in the complaint." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311F.3d198, 216 (3d
Cir. 2002). A complaint may not be dismissed, however, "for imperfect statement of the legal
theory supporting the claim asserted." Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014).
A complainant must plead facts sufficient to show that a claim has "substantive
plausibility." Id. at 347. That plausibility must be found on the face of the complaint. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the [complainant] pleads
factual content that allows the court to draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Defendants' motion urged dismissal of the complaint, arguing that it did not state a claim
for direct, induced, contributory, or willful infringement. The Magistrate Judge recommended
that the motion be denied as to the allegations of direct and willful infringement, and granted in
part and denied in part as to the indirect infringement claims. Defendants object only to the
Magistrate Judge's recommendation on (1) willful infringement and (2) "consumables" as an
accused product. I have reviewed the entire Report and Recommendation, and, as to the portions
to which no objections were taken, I will ADOPT the Report's recommendation. As for the
objections to the inclusion of"consumables" as an accused product, in view of the fact that the
accused products are identified as the Neptune 2 Waste Management System and Neptune 3
Waste Management System, I do not require further specificity about what role, if any,
"consumables" play in the infringement analysis. Thus, I summarily OVERRULE Defendants'
The patent issued June 3, 2014. Suit was filed August 8, 2016. The Magistrate Judge
held that Plaintiffs had not pled "actual knowledge" of the '920 patent before the filing of the
complaint. (D.I. 19 at 12-13). Until the decision in Halo Electronics, Inc. v. Pulse Electronics,
Inc., 136 S.C.t. 1923 (2016), that would have been a sufficient finding for me (and was in a
number of orders) to grant a motion to dismiss a claim of willfulness, as I interpreted In re
Seagate Technology, 497 F.3d 1360 (Fed. Cir. 2007), to prohibit a claim of willfulness based
only on knowledge of the patent gained through litigation. My view was not a universal view,
see Apple Inc. v. Samsung Electronics Co., 2017 WL 2720220, *10 (N.D. Cal. June 22, 2017),
but I do not believe the Federal Circuit ever definitively resolved the issue.
After Halo, the district courts continue to split on this and related issues. See, e.g.,
id. at *10-11 (citing other decisions); Continental Circuits LLC v. Intel Corp., 2017 WL
2651709, *7-8 (D. Ariz. June 16, 2017) (same). I am going to conclude, based on the analysis
in Apple v. Samsung, that allegations of post-filing conduct can support a finding of willfulness.
Those allegations have to have some factual content. I leave for another time how much factual
content is required, see Continental Circuits, 2017 WL 2651709, at *8, as Plaintiffs in this case
have not pied any post-filing factual content.
Thus, I am going to SUSTAIN Defendant's objection to the Report's recommendation
on willfulness. I will give leave to Plaintiffs to move to amend the complaint now, but if
Plaintiffs do not presently exercise that option, they will have another chance as will be set forth
in the Rule 16 scheduling order.
For the reasons stated herein, the Court OVERRULES Defendants' Objections in part
and SUSTAINS Defendants' Objections in part. The Magistrate Judge's Report and
Recommendation (D.I. 19) is ADOPTED except as to the recommendation on willfulness.
The Motion to Dismiss (D.I. 8) is GRANTED in part and DENIED in part as follows:
1. The motion to dismiss is DENIED except as otherwise stated below.
Defendants' motion to dismiss the claim for induced and contributory infringement is
GRANTED as it related their conduct prior to filing of the complaint.
3. Defendants' motion to dismiss the claim for willful infringement is GRANTED.
Plaintiffs are given leave to file an amended complaint within ten days of the date of this
IT IS SO ORDERED this
l(_ day of August 2017.
United States ~strict Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?