Wells v. Kessler Corporation et al
Filing
67
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants' motion to dismiss is granted. ECF No. 47 . All claims against all parties having been resolved, the Court will enter a separate Order of Dismissal. Signed by District Judge Audrey G. Fleissig on 6/4/18. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KERRY S. WELLS,
Plaintiff,
vs.
KESSLER CORPORATION, et al.,
Defendants.
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No. 4:17-cv-02709-AGF
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Charles C. McCloskey’s motion to
dismiss Plaintiff Kerry Wells’s pro se amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). All of the other remaining Defendants have joined in the motion to
dismiss.1 ECF No. 57. The Court heard oral argument on the motion on May 2, 2018.
For the reasons set forth below the Court will grant Defendants’ motion.
BACKGROUND
In his pro se amended complaint, Plaintiff asserts patent infringement claims against
all Defendants and also a fraud claim against McCloskey. In support of these claims,
Plaintiff alleges that he retained the services of McCloskey as a patent attorney to assist
him in obtaining a patent for his invention: an “Illuminated Address Sign.” Plaintiff
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These are Lincoln Industrial Corp., Paul G. Conley, David Mark Allen, Scott Allen
Sanders, Ayzik Grach, and Thomas S. Scott (collectively, the “Lincoln Defendants”).
Because the Lincoln Defendants also filed answers to the complaint (ECF No. 56), the
Court will treat their joinder in the motion to dismiss as a request for judgment on the
pleadings under Rule 12(c), Fed. R. Civ. P. 12(h)(2), which is subject to the same standard
as a Rule 12(b)(6) motion. Ashley Cty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
alleges that McCloskey asked Plaintiff to execute a power of attorney granting McCloskey
the authority to act on behalf of Plaintiff with respect to the patent application.
According to the complaint, while represented by McCloskey, Plaintiff was
awarded a design patent for his invention on December 7, 2010, U.S. Patent No. D628,652.
Liberally construed, Plaintiff alleges, upon information and belief, that McCloskey then
used the power of attorney to assign Plaintiff’s design patent to the Lincoln Defendants
without Plaintiff’s knowledge or consent, and that the Lincoln Defendants then sold
Plaintiff’s patented invention. In support of this allegation, Plaintiff alleges that when he
called the United States Patent and Trademark Office (“PTO”) to discuss his patent, an
employee at the PTO, Mary Ann Calabrese, “stated that she couldn’t talk to [Plaintiff]
because [he] was not one of the assignee[s] on the patent.”2 ECF No. 37 at 4.
Plaintiff has attached several exhibits to his complaint to support his allegations.
The exhibits include McCloskey’s correspondence with Plaintiff regarding the patent
application and request for a power of attorney; filings McCloskey submitted to the PTO in
connection with Plaintiff’s patent application; and a screenshot of a PTO online search
result for patent assignments, showing that there has been no record of assignment with
respect to Plaintiff’s patent application. The exhibits also include a screenshot of several
pages of Google search results for the search “Illuminated address sign patent D628,677,”
on which Plaintiff has circled several search results showing summaries of various internet
articles. For example, one circled result is an article entitled “U.S. Patents Awarded to
2
The Court denied Plaintiff leave to amend his complaint in order to assert a cause of
action against Calabrese.
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Inventors in Missouri (Dec. 14)” from the website www.lyncmigration.com. ECF No.
37-1 at 16 (Ex. 7). The excerpted summary depicted in Plaintiff’s exhibit states in full:
Dec 14, 2010 – The U.S. Patent was issued on Dec 7 (No. D628,677). The
co-inventors are Scott A. Sanders Arnold, Mo; Ayzik Grach, Chesterfield,
Mo; David Mark Allen … 14 – An inventor has developed an ornamental
design for an illuminated sign. The U.S. Patent was issued on Dec 7 (No.
D628,652). The inventor is ..
Id. (omissions in original).
As relief for his patent infringement and fraud claims, Plaintiff seeks statutory
damages, compensatory damages of $50 million, punitive damages of $5 million, a
declaration that McCloskey violated Plaintiff’s “attorney/client rights,” an order that
McCloskey be disbarred or that this Court submit a complaint to the Missouri Supreme
Court regarding McCloskey, and an order that McCloskey be prosecuted.
In their motion to dismiss, Defendants argue that Plaintiff’s claims are contradicted
by the power of attorney, attached to the complaint, which by its terms was limited to the
handling of the underlying patent application, expired when the patent was issued, and did
not grant McCloskey any power or authority to assign Plaintiff’s patent after issuance.
Defendants contend that “[i]f such an assignment [of the type alleged] occurred, it could
not have occurred pursuant to the June 14, 2010 power of attorney because the scope of
said power of attorney did not allow for it, and the power of attorney expired once the
patent was issued.” ECF No. 48 at 6. Defendants further contend that Plaintiff fails to
plead sufficient facts in support of a plausible claim for patent infringement.
Defendants also seek their attorneys’ fees under 35 U.S.C. § 285, which provides
that a court in a patent infringement action “may award reasonable attorney fees to the
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prevailing party” in “exceptional cases.” 35 U.S.C. § 285. In connection with this
request, Defendants argue that “Plaintiff’s cause of action is entirely based on his
misinterpretation of a Google Search result,” which Plaintiff interpreted to establish that
his patent had been assigned to the Lincoln Defendants. ECF No. 48 at 10. Defendants
assert that had Plaintiff clicked on the links of the condensed Google search result
summaries, he would have seen that the articles actually showed that the Lincoln
Defendants were issued an entirely different design patent (for a hand pump), patent
number D628,677, on the same day that Plaintiff’s design patent was issued, and that the
Lincoln Defendants assigned their design patent to their employer, Lincoln Industrial
Corp. Defendants assert that Plaintiff’s claims are therefore frivolous. The Lincoln
Defendants make the same assertion in their answer to the amended complaint (ECF No.
56), and they attach copies of Plaintiff’s design patent for an illuminated sign (D628,652),
and their design patent for a hand pump (D628,677), which both state that they were issued
on December 7, 2010. ECF Nos. 56-1 & 56-2.
Defendants have also attached to their motion a screenshot of an Internet page from
“Skype for Business Industry News Article.” ECF No. 48-1. The screenshot depicts an
article dated December 14, 2010, entitled “U.S. Patents Awarded to Inventors in Missouri
(Dec. 14),” which appears to be the same or a substantially similar article as the excerpted
article in the Google search results attached to Plaintiff’s complaint. The article lists
several patents issued on the same day. It states that the Lincoln Defendants were issued a
design patent for “Ornamental Design for Hand Pump” on December 7, 2010, No.
D628,677, which they assigned to Lincoln Industrial Corp.; and that Plaintiff was issued a
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different design patent for “Ornamental Design for Illuminated Sign” on December 7,
2010, No. D628,652. Id.
DISCUSSION
In reviewing a motion to dismiss for failure to state a claim, the court may properly
consider the pleadings, documents incorporated into the pleadings by reference, and public
records of which the court may take judicial notice. Podraza v. Whiting, 790 F.3d 828,
833 (8th Cir. 2015). To survive such a motion, a complaint must 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). The court must accept the complaint’s
factual allegations as true and construe them in the plaintiff’s favor, but it is not required to
accept the legal conclusions the complaint draws from the facts alleged. Id. at 678.
Although a “pro se complaint must be liberally construed,” pro se plaintiffs “still must
allege sufficient facts to support the claims advanced,” and a district court is not required to
“assume facts that are not alleged, just because an additional factual allegation would have
formed a stronger complaint.” Stone v. Harry, 364 F.3d 912, 914-5 (8th Cir. 2004).
Plaintiff’s claims are based entirely on his belief that McCloskey unlawfully
assigned Plaintiff’s design patent to the Lincoln Defendants. This belief, in turn, is based
on an alleged statement by a PTO employee that she could not talk to Plaintiff about his
patent and on the summary of Google search results showing incomplete excerpts of
internet articles. The articles excerpted in the Google search results page are not from the
PTO, and they merely purport to describe various patents issued on a particular day. They
do not plausibly support Plaintiff’s allegation that McCloskey assigned Plaintiff’s design
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patent. Indeed, the complete article, which Defendants have attached to their motion, as
well as the copies of both Plaintiff’s and the Lincoln Defendants’ separate design patents,3
make clear that, aside from being issued the same day, the Lincoln Defendants’ design
patent is wholly unrelated to Plaintiff’s design patent.
In short, the complaint and related documents before the Court, including the
documents described above and the PTO record attached to Plaintiff’s complaint reflecting
that no assignment of Plaintiff’s design patent has been recorded with the PTO, do not give
rise to any plausible inference that Plaintiff’s interest in his design patent was assigned to
the Lincoln Defendants by McCloskey. The complaint therefore fails to state a cause of
action, and the Court will grant Defendants’ motion to dismiss. See, e.g., Kaempe v.
Myers, 367 F.3d 958, 964-65 (D.C. Cir. 2004) (dismissing as implausible a claim for
conversion based on an allegation of a patent holder that his attorney caused his patent to
be assigned to a corporation without his authorization, where PTO and other records of
which the court took judicial notice did not purport to show that any assignment was
actually made and instead reflected that no assignment had been recorded with the PTO).
However, the Court will deny Defendants’ request for attorneys’ fees. As
Defendants note, a court may award reasonable attorneys’ fees to the prevailing party in a
patent case when the case is “exceptional.” 35 U.S.C. § 285. “[A]n ‘exceptional’ case is
simply one that stands out from others with respect to the substantive strength of a party’s
litigating position (considering both the governing law and the facts of the case) or the
3
These documents are incorporated into the pleadings by reference and, as to the
PTO records, are public records of which the Court may take judicial notice.
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unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON
Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). District courts have discretion to
award attorneys’ fees on a case-by-case basis, considering the totality of the circumstances,
including “frivolousness, motivation, objective unreasonableness (both in the factual and
legal components of the case) and the need in particular circumstances to advance
considerations of compensation and deterrence.” Id. at 1756 n.6 (quoting Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)). Some district courts have awarded
attorneys’ fees under § 285 against a pro se patent litigant whose claims had no evidentiary
basis. See, e.g., Xiaohua Huang v. Huawei Techs. Co., No. 215CV01413JRGRSP, 2017
WL 1133201, at *4 (E.D. Tex. Mar. 27, 2017) (collecting cases). But the Court declines
to do so under the circumstances here, including not only Plaintiff’s pro se status but also
the fact that his complaint appears to have arisen from miscommunication with his patent
attorney, McCloskey, and the Court’s belief that McCloskey could have avoided this
situation by communicating better with his client.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss is granted. ECF
No. 47. All claims against all parties having been resolved, the Court will enter a separate
Order of Dismissal.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 4th day of June, 2018.
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