Hawk Technology Systems, LLC v. New Palace Casino, LLC
ORDER granting 18 Motion to Dismiss. Ordered that the Plaintiff is granted 15 days from the date of this order to file a third amended complaint. Ordered that if Plaintiff fails to file a third amended complaint within 15 days, the lawsuit may be dismissed without further notice. Signed by District Judge Louis Guirola, Jr on 3/11/19. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 1:18CV211-LG-RHW
NEW PALACE CASINO, LLC,
as Owner/Operator of Palace
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND
GRANTING PLAINTIFF TIME TO FILE AN AMENDED COMPLAINT
BEFORE THE COURT is the  Motion to Dismiss filed by the
defendant/counter-plaintiff, New Palace Casino, LLC, in this patent case. The
parties have fully briefed the Motion. After reviewing the submissions of the
parties, the record in this matter, and the applicable law, the Court finds that New
Palace’s Motion should be granted because the Second Amended Complaint filed by
the plaintiff/counter-defendant, Hawk Technology Systems, LLC, fails to state a
claim on which relief may be granted.
Hawk filed this patent infringement lawsuit against New Palace on June 15,
2018, and twice amended its complaint. In its second amended complaint, Hawk
explains that it “was formed in 2012 to commercialize the inventions of its founder,
Barry Schwab.” (2d Am. Compl. 2, ECF No. 15.) Hawk alleges that New Palace
“uses a video storage and display system and methods that infringe” two of Hawk’s
patents — the ‘462 patent and the ‘342 patent. Hawk claims that a claim chart it
attached to its complaint as exhibit A explains how New Palace infringes on its
patents. The claim chart compares claims of its patents with features of the Pelco
Endura video management system, but neither the complaint nor the claim chart
explains the connection between New Palace and the Pelco Endura. 1 New Palace
filed the present Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
Generally, Rule 12(b)(6) requires a complaint to “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). The court must accept all well-pleaded facts as true and view those facts in
the light most favorable to the plaintiff. King-White v. Humble Indep. Sch. Dist.,
803 F.3d 754, 758 (5th Cir. 2015). This standard applies to complaints for patent
infringement. Howard v. Ford Motor Co., No. 1:16cv127-LG-RHW, 2016 WL
4077260, at *2 (S.D. Miss. July 29, 2016).
The conclusory assertion in Hawk’s complaint that New Palace “uses a video
storage and display system and methods” that infringe on its patents is insufficient
to state a plausible claim for relief. In addition, the parties agree that the patents
The claim chart filed with the original complaint described a different video
system, the Ganz ZNS NVR, with no explanation of the connection between New
Palace and the Ganz system.
referenced in the complaint have expired, but the complaint does not contain any
facts that would support Hawk’s claim for recovery as to these expired patents.
New Palace asks the Court to deny Hawk leave to amend its complaint, because
Hawk has previously filed three complaints in this lawsuit and has filed a similar
complaint that was deemed insufficient in another jurisdiction. See generally Hawk
Tech. Sys., LLC v. Brickell Fin. Centre, LLC, No. 13-24005-CV-SEITZ, 2014 WL
11946879 (S.D. Fla. Feb. 27, 2014).
“[A] plaintiff's failure to meet the specific pleading requirements should not
automatically or inflexib[ly] result in dismissal of the complaint with prejudice to
re-filing.” Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). “Although a
court may dismiss the claim, it should not do so without granting leave to amend,
unless the defect is simply incurable or the plaintiff has failed to plead with
particularity after being afforded repeated opportunities to do so.” Id. This case
presents a very close question, but Hawk will be granted one more opportunity to
amend its complaint. The Court will deny New Palace’s request for attorney’s fees,
expenses, and costs at this time, but the Court may reconsider that request if Hawk
should file any other deficient pleadings in this lawsuit.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the  Motion
to Dismiss filed by the defendant/counter-plaintiff, New Palace Casino, LLC, is
GRANTED. The plaintiff, Hawk Technology Systems, LLC, is granted fifteen days
from the date of this Order to file a third amended complaint.
IT IS, FURTHER, ORDERED AND ADJUDGED that, if Hawk
Technology Systems, LLC, fails to file a third amended complaint within fifteen
days of the date of this Order, this lawsuit may be dismissed without further notice.
SO ORDERED AND ADJUDGED this the 11th day of March, 2019.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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