Jenkins v. LogicMark, LLC

Filing 29

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 1/25/2017. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

NEVIN JENKINS,

Plaintiff,
Civil Action No. 3:16-CV-75i-HEH

V.

LOGICMARK, LLC,
Defendant.

MEMORANDUM OPINION

(Granting Motion to Dismiss)
THIS MATTER is before the Court on Defendant LogicMark, LLC's

("Defendant" or "LogicMark") Motion to Dismiss for Failure to State a Claim (ECF No.
7), filed on November 21,2016.

The Court will dispense with oral argument because the facts and legal contentions

are adequately presented in the materials beforethe Court, and oral argument would not
aid in the decisional process. E.D. Va. Local Civ. R. 7(J).

For the reasons stated herein, the Court will grant the Motion and will dismiss
PlaintiffNevin Jenkins's ("Plaintiff or "Jenkins") Complaint without prejudice.
I.

BACKGROUND

As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court
assumes Plaintiffs well-pleaded allegations to be true and views all facts in the light
most favorable to him. T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385

F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th

Cir. 1993)). At this stage, the Court's analysis is both informed and constrained by the
four comers of Plaintiffs Complaint. Unfortunately, Plaintiffs Complaint contains little

in the way of facts and instead relies heavily on legal conclusions and naked accusations.
Nevertheless, viewed through this lens, the Court determines that the alleged facts are as
follows.

Plaintiff is the owner of the entire interest in the four patents at issue in this case:

(1) U.S. PatentNo. RE41,845, reissued on October 19, 2010, and first issued as U.S.
Patent No. 7,231,200 on June 12, 2007; (2) U.S. Patent No. RE41,392, reissued on June

22, 2010, and first issued as U.S. Patent No. 7,315,736 on January 1, 2008; (3) U.S.

PatentNo. 7,933,579, issued on April 26, 2011; and (4) U.S. PatentNo. 8,548,422, issued
on October 1, 2013. (Compl. H8, ECF No. 1.) All four patents teach personal

emergency communication systems and have a number of independent method and
apparatus claims. {See id

11-16.)

On September 9, 2016, Plaintiff filed aten-count Complaint against LogicMark,'
alleging thatthree of Defendant's products—namely, its "Guardian Alert," "Life Sentry,"
and "Freedom Alert" systems—infringe his four patents. (Id.

20-109.) Plaintiff

alleges direct infringement, contributory infringement, inducement of infringement, and

' OnJanuary 23, 2017, Plaintiff filed a Notice of Withdrawal of Count X of the Complaint (ECF No. 28),
despite the fact thatLogicMark had already filed itsAnswer (ECF No. 15). SeeFed. R. Civ. P.
41(a)(l)(A)(i)-(ii) ("[T]he plaintiff may dismiss an action without a court order byfiling ... a notice of
dismissal before the opposing party serves eitheran answeror a motion for summary judgment; or ... a
stipulation of dismissal signed by all parties who have appeared." (emphasis added)). Since Plaintiff
cannot unilaterally withdraw a portion of his Complaint at this stage of litigation, the Court will consider
Count X in this Memorandum Opinion.

willflil infringement. {Id.) Jenkins provides a number of "exemplary" claims from each
of the four patents-in-suit to support his assertions. {See id. fl 11-16.)
Each allegation describes one of the three accused products, stating that it

"provide[s] a personal emergency communication system, including a user-carried
portable communication unit with a button which, when depressed by the user, sends a
call request signal to a base unit, and provide[s] a base unit that initiates a telephone call
through a dial-up network to an emergency responder in wireless voice communication
with the portable unit when the call is connected, and ultimately provides user access to
a[n] emergency responder." {Id. fl 17-19.) With reference to the "Life Sentry" system,

the Complaint further adds that it "provides placement of a voice communication with an

operator at the emergency center in wireless voice communication with the portable unit
when the call is connected, wherein a program is used to set up the system to a selected
one of a central monitoring station and a 911 operator and wherein the units are
programmable selectively by phone, voice or computer." {Id. HIS.)

These two passages represent the full extent to which Plaintiffattempts to plead
facts alleging infringement of "owe or more ofthe claims of the [asserted] patent[s]." {Id.
20, 29, 38, 47, 56, 65, 74, 83, 92, and 101 (emphasis added).) Plaintiff makes no

effort in his Complaint to specify which claims are allegedly infringed or how they are
infringed.
11.

LEGAL STANDARD

The analytical framework for reviewing motions to dismiss for failure to state a

claim is well settled in both the Fourth and Federal Circuits.^ "A motion to dismiss under

Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses."

Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).
The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the
claim showing that the pleader is entitled to relief,' 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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

A complaint need not assert "detailed factual allegations," but must contain "more than
labels and conclusions" or a "formulaic recitation of the elements of a cause of action."

Twombly, 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be

enough to raise a right to relief above the speculative level" to one that is "plausible on its
face," rather than merely "conceivable." Id. at 555, 570.

In considering such a motion, a plaintiffs well-pleaded allegations are taken as

true and the complaint is viewed in the light most favorable to the plaintiff. TG. Slater,
385 F.3d at 841 (citation omitted). Legal conclusions enjoy no such deference. Ashcroft
V. Iqbal, 556 U.S. 662, 678 (2009).

^The Federal Circuit applies its own law with respect to issues of substantive patent law and procedural
issues pertaining to patent law. "For issues not unique to patent law, [the Federal Circuit] appl[ies] the
law of the regional circuit in which [the case] would otherwise lie." i4i Ltd. P 'ship v. Microsoft Corp.,
598 F.3d 831, 841 (Fed. Cir. 2010). Courts in the Eastern District of Virginia have frequently dismissed
patent infringement complaints for failing to meet the pleading standard of Federal Rule of Civil
Procedure (8)(a)(2) as articulated by the Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See, e.g., Macronix Intern. Co., Ltd. v. Sponsion Inc., 4 F.
Supp. 3d 797, 804 (E.D. Va. 2014); Asghari-Kamrani v. UnitedServs. Auto. AssCivil No. 2:15cv478,
2016 WL 1253533, at *3-4 (E.D. Va. Mar. 22,2016).

Subsequent to the abrogation of Form 18 of the Federal Rules of Civil Procedure,
all patent complaints filed after December 1, 2015, are subject to the normal pleading

standards ofFederal Rule of Civil Procedure 8(a). ^ See Order Amending Fed. R. Civ. P.
(U.S.Apr. 29, 2015).
III.

ANALYSIS

In his inartfully drafted Complaint, Plaintiff does little more than recite the
elements of direct infringement, contributory infringement, inducement of infringement,

and willftil infringement in alleging that LogicMark's products somehow infringe his

four patents. Because each of the ten counts in the Complaint is nearly identical—merely
stating various combinations of the allegedly infringing products and Jenkins's patents—
the Court will address the sufficiency of the claims themselves instead of analyzing each
count.

a. Direct Infringement

The standards enumerated by the Supreme Court in Iqbal and Twombly are strictly

applied in direct patent infringement cases. See Macronix Int'I Co., Ltd. v. Spansion Inc.,
4 F. Supp. 3d 797, 803 (E.D. Va. 2014) ("[T]o exempt patent complaints from the

requirements of Twombly and Iqbal is to ignore a fundamental rationale that underpins
those decisions."). These guidelines "require counsel to focus complaints only on viable
claims. Thus, before filing a complaint, counsel must ascertain exactly what claims

should [be] alleged to be infringed and how they are infringed.^' Id. (emphasis added).
^Plaintiff, who isrepresented by counsel, was seemingly unaware of this abrogation. In fact. Plaintiff
specifically cited to Form 18—and pertinent case law— to support the sufficiency of his Complaint. {See
Resp. to Mot. to Dismiss 7-8, ECF No. 9.)

The Court finds that Plaintiffs allegations of direct infringement are entirely deficient to

satisfy the pleading standard of Federal Rule of Civil Procedure 8(a)(2) for at least three
reasons.

First, Jenkins has failed to identify which specific patent claims are alleged to be

infringed. Instead, each count merely alleges that LogicMark infringes "one or more of
the claims of the [asserted] patent." (Compl.

20, 29, 38, 47, 56, 65, 74, 83, 92, and

101.) Without more, LogicMark is unable to defend itself properly as it would be forced

to gaze into a crystal ball in order to discern which of the many claims of the asserted
patents its products allegedly infringe. As another trial court has found under similar
circumstances, a Complaint such as this that "fail[s] to identify with sufficient

particularity how each allegedly infringing feature of [the accused product] infringes the
patent" is woefully inadequate. Asghari-Kamrani v. UnitedServs. Auto. Ass'n, Civil No.

2:15cv478, 2016 WL 1253533, at *4 (E.D. Va. Mar. 22, 2016)."
Second, Jenkins fails to specify which features of LogicMark's products

correspond to the limitations of any claims in the identified patents. Rather, Plaintiff
merely recites several "exemplary" claims from his four patents and gives a general
overview of Defendant's allegedly infringing products. This is clearly deficient. Without
more, LogicMark is entirely unable to properly defend itself See id. at *3.

'' Plaintiff is incorrect in hisclaim that theAsghari-Kamrani court dismissed the Complaint "because the
patent was invalid,"rather than due to the deficiency of the pleading. (Resp. to Mot. to Dismiss9-10.) A
quick search reveals that Plaintiff is citing to a subsequent opinion in the same case—after the court
allowed Plaintiffs to amend their Complaint—instead of the one quoted above. See Asghari-Kamrani v.
United Services Automobile Association, Civil No. 2:15cv478, 2016 WL 3670804 (E.D. Va. July 5,
2016).

And third, Jenkins does not identify with any particularity how each allegedly

infringing feature of the accused products infringes any of the named patents, either
literally or under the doctrine of equivalents.

In sum. Plaintiff has provided LogicMark with no basis to defend itself against
these claims for direct infringement. Jenkins tacitly admits this in his Response to the

present Motion, stating that he "has prepared claim charts before filing suit, and is willing
to provide Defendant with the claim charts, should Defendant so request." (Resp, to Mot.
to Dismiss 5, ECF No. 9.) While such dilatory tactics may have been permissible under
Form 18 pleading, they are clearly impermissible since its abrogation.

Consequently, Plaintiffs claims for direct infiringement must be dismissed,
b. Contributory Infringement

Congress defined liability for contributory patent infringement in 35 U.S.C. §
271(c):
Whoever offers to sell or sells within the United States ... a component

of a patented machine, manufacture, combination or composition, or a
material or an apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be
especially made or especially adapted for use in an infringement of such
patent, and not a staple article or commodity of commerce suitable for
substantial noninfringing use, shall be liable as a contributory infringer.
The Federal Circuit has held that "there can be no ... contributory infringement

without an underlying act of direct infringement." Linear Tech. Corp. v. Impala Linear
Corp., 379 F.3d 1311, 1326 (Fed. Cir. 2004) (citation omitted); see also Dynacore
Holdings Corp v. U.S. Phillips Corp., 363 F.3d 1263, 1272 (Fed. Cir. 2004) ("Indirect
infringement, whether inducement to infringe or contributory infringement, can only arise

in the presence of direct infringement, though the direct infringer is typically someone
other than the defendant accused of indirect infringement."); Joy Techs., Inc. v. Flakt,

Inc., 6 F.3d 770, 774 (Fed. Cir. 1993) ("Liability for either active inducement of

infringement or for contributory infringement is dependent upon the existence of direct
infringement.").

Additionally, Plaintiff "must [also] show that [D]efendant knew that the
combination for which its components were especially made was both patented and

infringing and that [D]efendant's components have no substantial non-infringing uses."
Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1320 (Fed. Cir. 2009) (citations and
internal quotation marks omitted).
For the reasons stated above, the Court finds that Plaintiff has failed to properly

allege any act ofdirect infringement.^ See supra Part III.A. Additionally, Plaintiffhas
provided nothing in the way of facts to support his claims for contributory infringement.
Instead, he merely recites the basic elements of the cause of action, stating that

"LogicMarkhas contributed to the infringement of the [asserted] patent through its
activities which contribute to devices, systems and/or methods which infringe the

devices, systems and/or methods claimed in the [asserted] patent." (Compl.

23, 32,

41, 50, 59, 68, 77, 86, 95, and 104.)

^While Plaintiff is correct in hisassertion that"a plaintiff need not identify a specific direct infringer if it
pleads facts sufficient to allow an inference that at least one direct infringerexists," (Resp. to Mot. to
Dismiss 13), he has plead no such facts. See Lucent Techs., Inc. v. Gateway. Inc., 580 F.3d 1301, 1318
(Fed. Cir. 2009).

This is not enough to satisfy the pleading standards announced in Twombly and

IqbaL Therefore, the Courtwill dismiss Jenkins's claims of contributory infringement
without prejudice.
c. Induced Infringement

"Whoever actively induces infringement of a patent shall be liable as an

infringer," 35 U.S.C. § 271(b). Like contributory infringement, "inducement liability

may arise 'if, [and] only if, [there is]... direct infringement.'" Limelight Networks, Inc.
V. Akamai Technologies, Inc., 134 S. Ct. 2111,2117 (2014) (quoting Afro Mfg. Co. v.
Convertible Top Replacement Co., 365 U.S. 336, 341 (1961)).

The Supreme Court has held that liability for induced infringement "requires
knowledge that the induced acts constitute patent infringement." Global-Tech

Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011);

also DSUMed. Corp. v. JMS

Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006) ("[inducement requires that the alleged

infringer knowingly induced infringement and possessed specific intent to encourage
another's infringement." (citations omitted)).

Like his allegations of contributory infringement, see supra Part IILB, Jenkins has

merely provided a formulaic recitation of the elements of induced infringement. Plaintiff
states in each of his ten counts that "LogicMark has induced and continues to induce

others to infringe one or more of the claims of the [asserted] patent, through sales of

infringing products which are resold and through the sale of infringing products which
are used in an infringing mannerto infringe one or more of the claims of the [asserted]

patent, and/or which are used and/or can be used in a method which infringes the method
claims of the [asserted] patent." (Compl.

21, 30, 39, 48, 57, 66, 75, 84, 93, and 103.)

This is exactly the type of "formulaicrecitation of the elements of a cause of

action" proscribed by the Supreme Court in Twombly, 550 U.S. at 555. Plaintiffhas
alleged no facts to support his claims of induced infringement and has given the Court no

justification for drawing any inference thatLogicMark is somehow liable. SeeIqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).

Additionally, for the reasons discussed above. Plaintiff has utterly failed to allege

any facts to support his assertions that LogicMark's products directly infringe upon his
four patents. See supra Part III.A; see also supra n.5.
Either of these deficiencies alone is sufficient to warrant dismissal. Consequently,

Plaintiffs claims of induced infringement must be dismissed.
d. Willful Infringement

The Supreme Court recently held that "the award of enhanced damages" for
willful patent infringement is limited to "egregious cases of misconduct beyond typical
infringement." HaloElecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1935 (2016).
Therefore, the Court finds that, at a minimum, plaintiffs alleging willful infringement

must plead facts sufficient to support an inference "plausible on its face" that the alleged
conduct is of the egregious nature described in Halo Electronics. See Twombly, 550 U.S.
at 570.

Plaintiff claims that he properly plead willful infringement because "he uses the
exact same language that this Court found to be sufficient to allege willful infringement
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in Macronix: 'with full knowledge.'" (Resp. 15.) The entirety of Jenkins's claims of
willful infringement consists of his assertions that "Defendanthas been aware of
Plaintiffs rights in the patents in suit and of Plaintiffs intent to enforce those rights[;]
Defendant has, with full knowledge of those rights, willfully proceeded to infringe, in

disregard of Plaintiffs rights[; and] Plaintiff is entitled to enhanced damages under 35
U.S.C. § 284." (Compl. fl 20, 29, 38, 47, 56, 65, 74, 83, 92, and 101.)
The Court finds that this mere recitation of elements fails to meet the mark. At no

point in the Complaint does Jenkins allege facts from whichthe Courtcould inferthat
LogicMark had actual notice of the patents-in-suit or that Defendant's actions were
"willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—

indeed—characteristic of a pirate." Halo Elecs., 136 S. Ct. at 1932. Instead, he merely
makes naked accusations devoid of any details to warrant their plausibility.

As for Plaintiffs arguments that similar statements were found to be adequate to
state a claim for willful infringement in Macronix, the Court holds that what may have

been sufficientpre-Z/a/o Electronics is no longer so. Other district courts have reached a
similar conclusion. See, e.g., VarianMed. Sys., Inc. v. ElektaAB, Civil Action No. 15-

871, 2016 WL 3748772, at *8 (D. Del. July 12,2016) (dismissing a Complaint for failing
to state facts to support an accusation that the Defendants' actions "actually amounted to
an egregious case of infringement of the patenf).
Therefore, the Court finds that Plaintiff has failed to state a claim for willful
infringement.

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IV.

PLAINTIFF'S REQUEST TO FILE AN AMENDED COMPLAINT

At the end of his Response to Defendant's Motion to Dismiss, Jenkins requests
that he be allowed to file an Amended Complaint as an alternative to dismissal "should
the Court believe that additional pleading would be required or simply helpful." (Resp.
to Mot. to Dismiss 16.)

Of course, this request does not constitute a formal motion pursuant to Federal
Rule of Civil Procedure 15(a)(2) and is not in accordance with the local rules of this
Court. Nevertheless, because the Court will dismiss this case without prejudice. Plaintiff
is free to re-file this action should he choose to do so.
V.

CONCLUSION

For the foregoing reasons, the Defendant's Motion to Dismiss will be GRANTED.
(ECF No. 7.)

The Court will DISMISS Plaintiffs Complaint WITHOUT PREJUDICE.

An appropriate Order will accompany this Memorandum Opinion.

Additionally, due to the blatant deficiencies in Plaintiffs Complaint and the
numerous misstatements of law in his Response, the Court will entertain any motions for
sanctions that Defendant wishes to file within ten (10) days of the date of entry hereof
The Clerk is DIRECTED to send a copy of this Memorandum Opinion to all
counsel of record.

/s/

Henry E. Hudson
United States District Judge
Date:

Richmond, VA
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