Wireless Recognition Technologies LLC v. A9.com, Inc. et al

Filing 114

SUR-REPLY to Reply to Response to Motion re 94 MOTION to Consolidate Cases filed by A9.com, Inc., Amazon.com, Inc., Google, Inc.,, Nokia, Inc., Ricoh Innovations, Inc.. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H, # 6 Exhibit I)(Smith, Michael)

EXHIBIT D

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Slip Copy, 2011 WL 4387905 (N.D.Cal.)
(Cite as: 2011 WL 4387905 (N.D.Cal.))

Only the Westlaw citation is currently available.
United States District Court,
N.D. California.
OPTIMUM POWER SOLUTIONS LLC, Plaintiff,
v.
APPLE INC., Dell Inc., Hewlett–Packard Company,
Lenovo (United States) Inc., and Sony Electronics,
Inc., Defendants.
No. C 11–1509 SI.
Sept. 20, 2011.
Bryan G. Harrison, John P. Fry, W. Andrew McNeil,
Morris,Manning & Martin LLP, Atlanta, GA,
Matthew Rutledge Schultz, Trepel Greenfield Sullivan & Draa LLP, San Francisco, CA, Thomas John
Ward, Jr., Law Office of T. John Ward Jr. PC, Jack
Wesley Hill, Ward & Smith Law Firm, Longview,
TX, for Plaintiff.
Celine Jimenez Crowson, Joseph Raffetto, Hogan
Lovells US, Washington, DC, Clayton C. James, Hogan & Hartson LLP, Denver, CO, Jie Li, Hogan Lovells US LLP, San Francisco, CA, Robert B. Hawk,
Hogan Lovells US LLP, Palo Alto, CA, for Defendants.
ORDER DENYING PLAINTIFF'S MOTION
FOR LEAVE TO FILE FIRST AMENDED
COMPLAINT AND GRANTING DEFENDANTS' MOTION TO DISMISS ALL BUT ONE
DEFENDANT
SUSAN ILLSTON, District Judge.
*1 Plaintiff has filed a motion for leave to file a
first amended complaint. Defendants have filed a
motion to dismiss the complaint. The motions are
scheduled for a hearing on September 22, 2011. Pursuant to Civil Local Rule 7–1(b), the Court finds that
these matters are appropriate for resolution without
oral argument, and hereby VACATES the hearing.
For the following reasons, the Court hereby DENIES
plaintiff's motion and GRANTS defendants' motion.
BACKGROUND
On February 24, 2010, plaintiff Optimum Power
Solutions LLC filed this lawsuit against five defen-

dants alleging infringement of U.S. Patent Number
5,781,784, entitled “Dynamic Power Management of
Solid–State Memories” (the “'784 Patent”). Compl. ¶
1. The complaint alleges that plaintiff is the owner by
assignment of all rights, title and interest in the '784
Patent. Id. ¶ 11. According to the complaint, “the
'784 Patent discloses a power management device
and related logic control circuitry that supplies variable voltage to solid-state memory devices. The device provides sufficient power to maintain memory
information during periods of no activity or standby
periods, and an increased level of power during periods of data access activity or memory access periods,
thereby reducing substantially the power consumption of solid-state memory devices.” Id. ¶ 12. Plaintiff
alleges that each of the five defendants sells computers and/or computer systems that infringe the ' 784
patent. Id. ¶¶ 14–43. For example, plaintiff alleges
that defendant Apple's Apple MacBook Pro with an
Intel Core 2 Duo CPU (P8600) 2.4Ghz with a 3 MB
L2 cache infringes the '784 patent, as does defendant
Dell's Dell Studio1555 Notebook with an Intel Centrino 2 Duo CPU (P8600) 2.4GHz with a 3 MB L2
cache. Id. ¶¶ 14, 17.
Plaintiff's proposed first amended complaint
seeks to join five additional defendants on the ground
that these new defendants' products also allegedly
infringe the '784 Patent. On August 12, 1011, the
five defendants named in the plaintiff's original complaint moved to dismiss the complaint as to all but
one defendant, on the theory that defendants are misjoined. Now before the Court are plaintiff's motion to
amend and defendants' motion to dismiss, which concern the same issue: whether the defendants' acts of
infringement of the same patent, albeit in an allegedly similar manner, are sufficient to permit plaintiff
to pursue its claims against all ten defendants in a
single suit.
LEGAL STANDARDS
I. Motion to amend
Federal Rule of Civil Procedure 15 governs
amendment of the pleadings. It states that if a responsive pleading has already been filed, the party seeking amendment “may amend its pleading only with
the opposing party's written consent or the court's
leave. The court should freely give leave when justice

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so requires.” Fed.R.Civ.P. 15(a). There are several
reasons to deny leave to amend, including, inter alia,
the futility of amendment. See Ascon Properties, Inc.
v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.1989);
McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809
(9th Cir.1988). Thus while courts do not ordinarily
consider the validity of a proposed amended pleading
in deciding whether to grant leave to amend, leave
may be denied if the proposed amendment is futile or
would be subject to dismissal. See Saul v. United
States, 928 F.2d 829, 843 (9th Cir.1991). “Amendments seeking to add claims are to be granted more
freely than amendments adding parties.” Union Pac.
R.R. Co. v. Nev. Power Co., 950 F.2d 1429, 1432 (9th
Cir.1991).
II. Motion to dismiss
*2 Federal Rule of Civil Procedure 20(a) provides that joinder of defendants is appropriate where
“any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and [ ] any question of
law or fact common to all defendants will arise in the
action.” Fed. Rule Civ. Proc. 20(a)(2). “The first
prong, the ‘same transaction’ requirement, refers to
similarity in the factual background of a claim.”
Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th
Cir.1997). Where misjoinder is apparent, a court is
within its discretion to either dismiss or sever the
claims against the misjoined parties. Fed.R.Civ.P. 21;
Coughlin, 130 F.3d at 1350.
DISCUSSION
Plaintiff contends that joinder of the five defendants in the original complaint, or ten defendants in
the proposed FAC, is proper “given the identity of
accused instrumentalities at issue.” Opp'n at 3:3. Specifically, plaintiff asserts that each of the accused
instrumentalities is comprised of, among other things,
a processor and its associated cache memory, a PWM
rate controller, and portions of the BIOS software.
Plaintiff has grouped defendants' products into “uniform, homogenous groupings” based upon the processor family utilized in the accused instrumentalities,
and plaintiff asserts each of the processors in the
same group performs its portion of the power management accused of infringement in exactly the same
fashion. Thus, plaintiff asserts, there are multiple
common legal and factual questions presented by
plaintiff's infringement claims against defendants.

Defendants contend that the separate sale of
separate products by separate defendants is insufficient to support joining multiple defendants in the
same action, regardless of the similarity of their
products, the similarity of the components that make
up their products, or the alleged similarity in the
manner in which these component combinations violate the '784 Patent. Defendants argue that merely
arranging claims into “groupings” does not meet the
requirements for joinder because there are no allegations that defendants acted in concert or that their
separate sales of computers somehow constitute
common transactions or occurrences. Defendants also
note that all of the defendants are competitors, each
of whom sells its own, separate computer products in
direct competition with each other. Defendants assert
that joinder of multiple defendants in this case
would prove complex and unmanageable; for example, they note that plaintiff alleges that 110 of the
products manufactured by one defendant alone infringe its patent.
Courts have found that merely alleging a violation of the same patent or copyright is insufficient to
permit a plaintiff to pursue claims against multiple
defendants in a single suit. See WiAV Networks LLC
v. 3Com Corp., No. C 10–3488 WHA, 2010 WL
3895047, at *3 (N.D.Cal. Oct.1, 2010) (severing
claims brought against twelve defendants who all
manufactured laptops that allegedly infringed the
same patent). In WiAV Networks LLC, the court
found that “joinder is improper where multiple competing businesses have allegedly infringed the same
product by selling different products.” 2010 WL
3895047, at *3 (citing Spread Spectrum Screening,
LLC v. Eastman Kodak Co., 2010 WL 3516106, at *2
(N.D.Ill. Sept.1, 2010) (severing claims brought
against competing defendants alleged to have infringed the same patent by selling different products); Philips Elecs. N.Am. Corp. v. Conent Corp.,
220 F.R.D. 415, 417 (D.Del.2004) (severing claims
brought against multiple defendants where the only
connection between them was that they may have
infringed the same patent); and Androphy v. Smith &
Nephew, Inc., 31 F.Supp.2d 620, 623 (N.D.Ill.1998)
(severing claims brought against separate companies
selling different products allegedly in violation of the
same patent)). Underlying the decision of the court
in WiA v. Networks was the right of the defendants to
present “individualized assaults on question of non-

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infringement, invalidity and claim construction” and
the fact that infringement issues, damages issues,
wilfulness issues, time frames and accused conduct,
and discovery issues would likely vary from company to company. 2010 WL 3895047, at *3.
*3 Plaintiff asserts that this case is similar to
Privasys, Inc. v. Visa International, et al., No. C 07–
03257 SI, 2007 WL 3461761 (N.D.Cal. Nov.14,
2007), where this Court granted the plaintiff leave to
amend to add certain defendants alleged to have infringed the same patent. However, in Privasys all of
the defendants were alleged to be acting in concert
pursuant to a written agreement, and plaintiff alleged
that one of the defendants exercised direction or control over the other defendants. See Privasys, *1–2.
Thus, the Rule 20(a) “same transaction, occurrence or
series of transactions or occurrences” standard was
met.

improper joinder, and accordingly DENIES plaintiff's
motion to amend to add additional defendants. The
Court DISMISSES WITHOUT PREJUDICE plaintiff's claims against Dell, Inc., Hewlett–Packard
Company, Lenovo Company, and Sony Electronics,
Inc., and plaintiff's claims against the first-named
defendant, Apple, Inc., remain in this case. Docket
Nos. 140, 156.
IT IS SO ORDERED.
N.D.Cal.,2011.
Optimum Power Solutions LLC v. Apple Inc.
Slip Copy, 2011 WL 4387905 (N.D.Cal.)
END OF DOCUMENT

The Court agrees with defendants that plaintiff's
allegations against the various defendants are insufficient to meet the standard required for joinder under
Federal Rule of Civil Procedure 20(a). Although
plaintiff accuses defendants of infringing the '784
Patent in five similar ways, plaintiff does not allege
that defendants' infringement involved the “same
transaction, occurrence or series of transactions or
occurrences.” Fed. R. Civ. Proc. 20(a)(2). Plaintiff
has not alleged that defendants acted in concert or
otherwise controlled or directed each others' conduct—and indeed defendants appear to be ardent
competitors of one another in the marketplace for
their products; nor has plaintiff alleged any connection between defendants except for the fact that each
defendant is alleged to have infringed plaintiff's patent. Although plaintiff asserts that the infringement
analysis will not vary from defendant to defendant,
Rule (20)(a) requires both a “question of law or fact
common to all defendants” and “the same transaction, occurrence, or series of transactions or occurrences.” Fed. R. Civ. Proc. 20(a)(2). Plaintiff has not,
and cannot, made anus such claim.
CONCLUSION
Accordingly, the Court concludes that defendants are misjoined, and GRANTS defendants' motion to dismiss plaintiff's claims against all but one
defendant. The Court finds that it would be futile to
grant plaintiff leave to amend to file the proposed
FAC as the new defendants would be dismissed for

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.