Case 1:12-cv-00035-RGA Document 34 Filed 07/11/12 Page 1 of 1 PageID #: 321

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE HOWARD FOUNDATION HOLDINGS LIMITED, Plaintiff, v. INTERNATIONAL VITAMIN CORPORATION, Defendant. Civil Action No. 12-35-RGA

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ORDER

The Motion for Leave to File a First Amended Complaint (D.I. 21) is GRANTED. 1 The Motion for Judgment on the Pleadings (D.I. 13) is DISMISSED AS MOOT.

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I believe, under the authority of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), that the claim of"willfulness" may be alleged generally, but that there must be facts alleged that "are sufficient to show that the plaintiff has a 'plausible claim for relief."' See id. at 210-11. Whether the facts are sufficient is a "'contextspecific task that requires the reviewing court to draw on its judicial experience and common sense."' !d. The factual support for the allegations of willfulness made in the First Amended Complaint are specific and varied. I am not convinced that most of the allegations are sufficient. I believe that the strongest allegation is that the Plaintiff gave actual notice to OmniActive on November 18,2010, and that it is reasonable to infer due to the close relationship between OmniActive and the Defendant that OmniActive communicated the information to the Defendant. If the roles were reversed, that is, Defendant was the supplier/manufacturer and OmniActive was the customer, I would think it reasonable to make that assumption. I do not think, however, that someone telling a manufacturer that it infringes a patent supports as a plausible inference that the manufacturer broadcasts the allegation to its customers. I therefore conclude that the willfulness allegation should be STRICKEN from the First Amended Complaint. This is without any prejudice to the Plaintiff amending the complaint to allege willfulness before the close of fact discovery should any of its theories gather more factual support.