Case 4:16-cv-00695-ALM Document 32 Filed 05/04/17 Page 1 of 4 PageID #: 752
`
`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`MEMORANDUM OPINION AND ORDER
`
`
`
`
`
`Pending before the Court is Drucker Labs, L.P.’s Motion to Dismiss Plaintiff’s First
`
`Amended Complaint (Dkt. #15). After reviewing the relevant pleadings, the Court denies the
`
`motion.
`
`BACKGROUND
`
`
`
`On September 9, 2016, Voit Technologies, LLC (“Voit”) filed its complaint against
`
`Drucker Labs, L.P. (“Drucker”), alleging direct patent infringement of U.S. Patent No. 6,226,412
`
`B1 (the “’412 Patent”) along with a request that such infringement be deemed willful (Dkt. #1).
`
`On November 7, 2016, Drucker filed a motion to dismiss Voit’s original complaint for failure to
`
`state a claim for both direct infringement and for willful infringement (Dkt. #5). In response,
`
`Voit amended its complaint (the “First Amended Complaint”) and removed the request for
`
`willful infringement (Dkt. #11).
`
`On December 19, 2016, Drucker filed a motion to dismiss Voit’s First Amended
`
`Complaint (Dkt. #15). On January 13, 2017, Voit filed a response (Dkt. #19). On January 30,
`
`2017, Drucker filed a reply (Dkt. #22). On February 20, 2017, Voit filed a sur-reply (Dkt. #28).
`
`LEGAL STANDARD
`
`The Federal Rules of Civil Procedure require that each claim in a complaint include a
`
`“short and plain statement . . . showing that the pleader is entitled to relief.” Fed. R. Civ. P.
`
`VOIT TECHNOLOGIES, LLC
`
`v.
`
`DRUCKER LABS, L.P.
`
`Civil Action No. 4:16-CV-00695
`Judge Mazzant
`
`

`

`Case 4:16-cv-00695-ALM Document 32 Filed 05/04/17 Page 2 of 4 PageID #: 753
`
`8(a)(2). Each claim must include enough factual allegations “to raise a right to relief above the
`
`speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
`
`A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
`
`complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
`
`When considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all
`
`well-pleaded facts in plaintiff’s complaint and view those facts in the light most favorable to the
`
`plaintiff. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may
`
`consider “the complaint, any documents attached to the complaint, and any documents attached
`
`to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone
`
`Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court
`
`must then determine whether the complaint states a claim for relief that is plausible on its face.
`
`‘“A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt
`
`to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
`
`Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
`
`(2009)). “But where the well-pleaded facts do not permit the [C]ourt to infer more than the mere
`
`possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
`
`is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
`
`In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
`
`of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
`
`disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal,
`
`556 U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to
`
`determine if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for
`
`enough facts to raise a reasonable expectation that discovery will reveal evidence of the
`
`
`
`2
`
`

`

`Case 4:16-cv-00695-ALM Document 32 Filed 05/04/17 Page 3 of 4 PageID #: 754
`
`necessary claims or elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009)
`
`(citation omitted). This evaluation will “be a context-specific task that requires the reviewing
`
`[C]ourt to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
`
`Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
`
`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Id. at 678
`
`(quoting Twombly, 550 U.S. at 570).
`
`ANALYSIS
`
`The ’412 Patent claims “a method of buying and selling an item relating to unique
`
`subjects.” ’412 Patent at 11:5–6. Drucker asserts that the Court must dismiss Voit’s First
`
`Amended Complaint because Voit has not established direct infringement of the ’412 Patent.
`
`Specifically, Drucker argues that it neither practices every step of the claimed method nor directs
`
`or controls any entity that does so. Voit responds that it adequately pleaded direct infringement.
`
`Voit contends the First Amended Complaint and materials cited therein show that Drucker
`
`directed or control the Volusion e-commerce software and hardware to perform the claimed
`
`method.
`
`
`
`An alleged infringer directly infringes a patent if the infringer, without authority, “makes,
`
`uses, offers to sell or sells any patented invention, within the United States or imports into the
`
`United States any patented invention during the term of the patent.” 35 U.S.C. § 271(a). Where
`
`the patented invention is a method, “[d]irect infringement under § 271(a) occurs where all steps
`
`of a claimed method are performed by or attributable to a single entity.” Akamai Techs., Inc. v.
`
`Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir. 2015). “An entity is responsible for
`
`others’ performance of method steps in two circumstances: (1) where the entity directs or
`
`controls the others’ performance; and (2) where the actors form a joint enterprise.” Id. In
`
`
`
`3
`
`

`

`Case 4:16-cv-00695-ALM Document 32 Filed 05/04/17 Page 4 of 4 PageID #: 755
`
`determining whether one party directs or controls another, the Federal Circuit has stated that it
`
`will consider the general principles of vicarious liability and hold “an actor liable for
`
`infringement under § 271(a) if it acts through an agent (applying traditional agency principles) or
`
`contracts with another to perform one or more steps of a claimed method.” Id. at 1022–23
`
`(citing BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1379–81 (Fed. Cir. 2007)).
`
`
`
`Here, Voit alleges in its First Amended Complaint that “Drucker is considered to not
`
`perform any of the claimed steps itself” (Dkt. #11 at ¶ 15). Voit further alleges that Drucker
`
`contracts with another entity “to perform such steps pursuant to a service agreement, and
`
`Drucker conditions payment to such entity upon such entity’s performance of such steps” (Dkt.
`
`#11 at ¶ 16). Taking these facts as true and viewing them in the light most favorable to Voit, the
`
`Court determines that Voit pleaded sufficient facts to plausibly allege Drucker directly infringed
`
`the ’412 Patent.
`
`CONCLUSION
`
`It is therefore ORDERED that Drucker Labs, L.P.’s Motion to Dismiss Plaintiff’s First
`
`Amended Complaint (Dkt. #15) is DENIED.
`
`
`
`4
`
`