CURRAN v. NORTHRUP GRUMMAN CORPORATION et al
Filing
8
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 4/6/2018. (dmr)
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW JERSEY
JOHN F. CURRAN,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil No. 15-7567 (JBS-KMW)
v.
NORTHRUP GRUMMAN CORP.; BAE
SYSTEMS, TACTICAL VEHICLE
SYSTEMS, LP; PRATT AND MILLER,
INC.; and MART T. KIMMITT,
Individual,
MEMORANDUM OPINION
Defendants.
SIMANDLE, District Judge:
This matter, filed by Plaintiff, John F. Curran, III, was
permitted to be filed in forma pauperis by Order of August 24,
2016 [Docket Item 4]. That Order also provided that the case
would be subject to judicial screening as required for in forma
pauperis cases under 28 U.S.C. § 1915(e)(2). That statute
requires that pursuant to such screening, “the court shall
dismiss the case at any time if the court determines that -- . .
. (B) the action or appeal (i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from
such relief.” In the case of a pro se plaintiff, the complaint
is to be construed liberally to do substantial justice, Erickson
v. Pardus, 551 U.S. 89, 94 (2007), but “pro se litigants still
must allege sufficient facts in their complaints to state a
claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d
Cir. 2013)(citation omitted). Mere conclusory statements and
formulaic recitation of the elements of a cause of action will
not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citation
omitted).
The Court’s preliminary review assumes factual allegations
as pled in the Complaint to be true, but no findings are made
herein as to their truthfulness. Applying these standards, the
Complaint attempts to state claims for the breach of a nondisclosure agreement (Counts 1 and 2); misappropriation of trade
secrets under New Jersey law (Count 3); unfair competition under
15 U.S.C. § 1125(a) (Count 4); patent infringement under 35
U.S.C. § 271(a) (Count 5); and induced infringement under 35
U.S.C. § 271(b) (Count 6). The Complaint seeks to compel a
return of proprietary designs and other materials, other
injunctive relief, compensatory damages, and punitive damages.
The Complaint alleges a basis for federal question and
patent jurisdiction under 28 U.S.C. §§ 1331 and 1338, and
diversity jurisdiction over state law claims under 28 U.S.C.
§ 1332.
Accordingly, it does not appear that the Complaint is
frivolous or malicious. The pleading of the patent claims in
Counts 5 and 6 is deficient, however, and these allegations
currently fail to state a claim for the following reasons.
In a claim for direct infringement, such as Count 5, a
plaintiff must allege five elements to state a claim: (1)
ownership of the patent, (2) the infringer’s name, (3) a
citation to the infringed patent, (4) the infringing activity,
and (5) citations to federal patent law. Phonometrics, Inc. v.
Hospitality Franchise Sys., Inc., 203 F.3d 790, 794 (Fed. Cir.
2000). Count 5 of the Complaint, while alleging patent
infringement and citing the federal patent statute, fails to
allege element (1), ownership of the patent; element (3), a
citation to the infringed patent by U.S. Patent Number; and
element (4), the infringing activity of each accused Defendant,
including the patent claims that are allegedly infringed.
Generally, only the patent owner, assignee, or licensee may
pursue an infringement claim. Waterman v. MacKenzie, 138 U.S.
252 (1891); Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320
F.3d 1354, 1367-68 (Fed. Cir. 2003), and the Complaint fails to
allege that Mr. Curran has these ownership rights. Likewise, the
patent itself is not identified, nor is a copy of an issued
patent attached to the Complaint. While Count 5 must therefore
be dismissed without prejudice for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(ii), the Court will give Mr.
Curran the opportunity to correct these deficiencies in an
Amended Complaint as explained below.
Similarly, in a claim for induced patent infringement, such
as Count 6, a plaintiff is required to plead that the alleged
infringer knowingly induced the infringement of plaintiff’s
patent through some affirmative act. DSU Med. Corp. v. JMS Co.,
Ltd., 471 F.3d 1293, 1306 (Fed. Cir. 2006); Tegal Corp v. Tokyo
Electron Co., Ltd., 248 F.3d 1376, 1378 (Fed. Cir. 2001). The
complaint must also assert that the activity induced by the
defendant constitutes direct infringement. As with direct
infringement, the Complaint for induced infringement must also
identify ownership, and cite the patent and claims therein that
were infringed. Count 6 falls short of these standards and thus
fails to state a claim on which relief may be granted.
Accordingly, the Court will dismiss Count 6 without prejudice,
again giving Plaintiff the opportunity to cure these
deficiencies by an Amended Complaint.
The Court will authorize the present Complaint to proceed
only as to Counts 1-4, while Counts 5 & 6 will be dismissed
without prejudice.
Procedure for Motion to Amend. If Plaintiff believes he can
cure the deficiencies noted in Counts 5 & 6, he may file a
motion for leave to file an amended complaint setting forth the
required elements for Counts 5 & 6, and attaching to his motion
a copy of the proposed Amended Complaint. Plaintiff must file
his motion for leave to amend within thirty (30) days of the
entry of this Memorandum Opinion and Order upon the docket,
unless he timely requests and receives more time to do so for
good cause.
Service of Process. Meanwhile, the Complaint may proceed as
to Counts 1-4 and the Clerk of Court shall issue summonses for
service of the Complaint and USM-285 Forms to the Marshall, who
shall forward the USM-285 Forms to the Plaintiff for Plaintiff
to fill out appropriately and speedily return to the Marshal.
The Marshal cannot serve process without a completed USM-285
Form for each named defendant. Such service of process must be
completed within 90 days of the date of this Memorandum Opinion
and Order are entered permitting the case to proceed in part,
pursuant to Rule 4(m), Fed. R. Civ. P., unless extended for good
cause.
The accompanying Order is entered.
April 6, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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