Moody v. Aqua Leisure International et al
Filing
44
MEMORANDUM OPINION AND ORDER, re: 28 Motion to Strike and Dismiss.(Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES MOODY,
Plaintiff,
v.
AQUA LEISURE INTERNATIONAL,
et al.,
Defendants.
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ACTION NO. 4:10-cv-1961
MEMORANDUM OPINION AND ORDER
Pending before the court1 is Plaintiff’s Motion to Strike and
Dismiss Defendants’ Pleadings, and Plaintiff’s Alternate Motion for
A More Definite Statement regarding a Counterclaim and several
Affirmative
Defenses
contained
within
Plaintiff’s Complaint (Doc. 28).
Defendants’
Answer
The court has considered the
motions, all relevant filings, and the applicable law.
reasons set forth below, the court
to
For the
DENIES Plaintiff’s Motion to
Strike and Dismiss, without prejudice, and
GRANTS Plaintiff’s
Motion for a More Definite Statement.
I.
A.
Case Background
Procedural Background
Plaintiff James Moody (“Plaintiff”) filed this lawsuit against
Aqua Leisure International, Bad Schloss, Inc., NBGS International,
Inc. (“NBGS”), Jeffrey Wayne Henry, Water Ride Concepts, Inc., and
Henry Schooley and Associates (collectively, “Defendants”) on June
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 42.
3,
2010,
alleging,
infringement.2
among
other
a
of
action,
patent
Defendants timely filed an answer to Plaintiff’s
complaint on December 10, 2010.
assert
causes
number
of
3
In their answer, Defendants
counterclaims
and
affirmative
defenses,
including patent invalidity and/or unenforceability,4 failure to
state a claim upon which relief may be granted, and estoppel.5
B.
Factual Background
In January 1999, Defendant NBGS and Plaintiff entered into an
agreement
titled
agreement”).6
“Assignment
and
Consulting
Agreement”
(“the
Pursuant to the terms of the agreement, NBGS paid
Plaintiff twenty-four thousand dollars ($24,000) in exchange for
Plaintiff’s assignment of all rights in and to his patent (“the
patent”) to NBGS, including all rights to all income, royalties,
and damages thereafter due or payable to Plaintiff with respect to
the patent, as well as all rights to sue for past, present, and
future
infringements
Plaintiff
allowed
the
of
the
patent
patent.7
expire
In
addition,
prior
to
because
executing
the
agreement, NBGS reimbursed Plaintiff for the two thousand, six
2
See generally Doc. 1, Plaintiff’s Complaint.
3
See Doc. 27, Defendants’ Answer.
4
Defendants’ assertion of patent invalidity
counterclaim and as an affirmative defense. See id.
is
made
both
as
a
5
Defendants assert as affirmative defenses that Plaintiff is estopped
from asserting his claims both by virtue of the prosecution record made in the
United States Patent and Trademark Office and according to the doctrines of
laches, estoppel, waiver, failure of consideration, license, express contract,
statute of limitations, unjust enrichment, quantum meruit, mistake, and payment.
See Doc. 27, Defendant’s Answer, p. 10.
6
See Doc. 27, Defendants’ Answer to Plaintiff’s Complaint, and
Affirmative Defenses and Counterclaims, p. 11.
7
Id.
2
hundred and ninety dollar fee ($2,690) for reviving the patent with
the United States Patent and Trademark Office (“USPTO”).8 Further,
the agreement entitled Plaintiff to a one-percent (1%) commission
of the gross sales and licensing revenues that NBGS earned from use
of the patent.9 Additionally, Plaintiff alleges that the agreement
bound NBGS to hire him as a consultant on various projects.
Plaintiff
Defendants
subsequently
breached
instituted
this
agreement.11
the
suit
arguing
Specifically,
10
that
Plaintiff
alleges patent infringement, failure to hire him as a consultant on
certain projects, breach of the covenant of good faith and fair
dealing,
misappropriation
of
trade
secrets
and
proprietary
information, and fraud/misrepresentation.12
Defendants deny these allegations and assert a number of
counterclaims and affirmative defenses.13
They argue, among other
things, that the patent is invalid and that it expired due to
Plaintiff’s
failure
to
revive
it
with
the
USPTO.
Further,
Defendants aver that they never agreed to hire Plaintiff as a
consultant and that they mistakenly overpaid Plaintiff for uses not
covered by the inventions described and claimed in the patent.
II.
Standards
8
See Doc. 27, Defendants’ Answer, p. 12.
9
See id.
10
See id.
11
See generally Doc. 1, Plaintiff’s Complaint.
12
See id. at 6-9.
13
See generally Doc. 27, Defendants’ Answer.
14
See id.
3
14
When reviewing a Federal Rule of Civil Procedure (“Rule”)
12(b)(6) motion, the court determines whether a complaint states a
valid claim when all well-pleaded facts are (1) assumed true and
(2) are viewed in a light most favorable to the plaintiff.
In re
Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5 th Cir. 2007).
The court does not evaluate the plaintiff’s likelihood of success;
rather, it only decides whether the plaintiff has stated a legally
cognizable claim that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. __, 129 S.Ct. 1937, 1949 (2009).
In a Rule 12(e) motion, the court determines whether the
“pleading to which a responsive pleading is allowed” is “so vague
or ambiguous that the party cannot reasonably prepare a response.”
Fed. R. Civ. P. 12(e).
III.
Analysis
Plaintiff moves to dismiss or, in the alternative, for a more
definite statement, on Defendants’ First Counterclaim and their
First, Third, Fifth, and Sixth Affirmative Defenses.
A.
First Counterclaim
According to Rule 8(a)(2), a pleading that states a claim for
relief must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Further, the
United States Supreme Court has stated that a pleading must also
contain “enough facts to state a claim for relief that is plausible
on its face” in order to “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.”
Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citing Conley v. Gibson,
355 U.S. 41, 47 (1957)).
In addition, the Fifth Circuit has held
4
that
the
same
Rule
8(a)
pleading
counterclaims and affirmative defenses.
F.3d 354, 362 (5th Cir. 1999).
requirements
apply
to
Woodfield v. Bowman, 193
Therefore, a counterclaim or an
affirmative defense must be written in such a way that it includes
enough facts to give the opposing party notice of the factual and
legal bases of the claim or defense asserted.
In
their
invalidity.15
First
Counterclaim,
Id.
Defendants
assert
patent
Plaintiff argues that Defendants failed to allege
necessary facts to support this contention.
The court agrees.
Defendants’ First Counterclaim states, “[u]pon information and
belief, the claims of the asserted patent are invalid and/or
unenforceable under one or more provisions of Title 35 of the
United States Code §§ 101, et seq., including at least one of §§
102, 103, and 112.” 16
They then cite paragraphs 66-89 of their
answer as factual support.17
However, these paragraphs merely
recite the facts regarding Plaintiff’s violation of the Assignment
and Consulting Agreement and are silent as to any facts that might
serve as the basis for patent invalidity.18
Therefore, Defendants’
First Counterclaim fails to meet the Twombly standard.
B.
Affirmative Defenses
Plaintiff next contends that Defendants’ First, Third, Fifth,
and Sixth Affirmative Defenses are similarly factually unsupported
15
See id.
16
See Doc. 27, Defendants’ Answer to Plaintiff’s Complaint, and
Affirmative Defenses and Counterclaims.
17
See id.
18
See id.
5
in the pleading.19 The court agrees as to defenses three, five, and
six.
As stated above, the Twombly requirements also apply to
affirmative defenses.
See Woodfield, 193 F.3d 354 at 362.
In
their Third Affirmative Defense, Defendants assert a defense of
patent invalidity and fail to cite any facts for support.20
In their Fifth Affirmative Defense, Defendants allege that
Plaintiff is estopped from asserting his claims “by virtue of the
prosecution record made in the United States Patent and Trademark
Office during the pendency of the applications resulting in the
patent
asserted
[Defendants],
by
from
[Plaintiff]
construing
any
covering [Defendants’] products.”21
in
the
claim
of
Complaint
those
against
patents
as
Although Defendants generally
allege that the prosecution history will support this claim, they
do not allege any facts to adequately put Plaintiff on notice of
the claim and its factual and legal foundation.22
Similarly, in their Sixth Affirmative Defense, Defendants
argue that Plaintiff is “estopped from asserting [his] claims
against [Defendants] under the doctrines of laches, estoppel,
waiver,
failure
of
consideration,
license,
express
contract,
statute of limitations, unjust enrichment, quantum meruit, mistake,
19
See Doc. 28, Plaintiff’s Motion To Strike and Dismiss Defendants’
Pleadings, and Plaintiff’s Alternate Motion for a More Definite Statement, p. 4.
20
See Doc. 27, Defendants’ Answer to Plaintiff’s Complaint, and
Affirmative Defenses and Counterclaims, p. 9.
21
Id. at 10.
22
See id.
6
and payment.” 23
Defendants do not state any facts in support of
these affirmative defenses in either that paragraph or any other
sections of their answer.24
Without facts in support, Defendants’ First, Third, and Sixth
Affirmative Defenses fail to meet the Twombly standard.
IV.
Conclusion
Based on the foregoing, the court DENIES Plaintiff’s Motion to
Strike and Dismiss, without prejudice, and GRANTS Plaintiff’s
Motion for a More Definite Statement as to Defendants’ First
Counterclaim and First, Third, and Sixth Affirmative Defense.
SIGNED in Houston, Texas, this 30th day of June, 2011.
23
Id.
24
See id.
7
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