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9cv351

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF CALIFORNIA

ANTICANCER, INC., a CaliforniaCorporation,Plaintiff,CASE NO. 09-CV-351 JLS (RBB)

ORDER GRANTING IN PARTAND DENYING IN PARTDEFENDANT’S MOTION TODISMISS

(Doc. No. 15.)vs.CAMBRIDGE RESEARCH &INSTRUMENTATION, INC., a DelawareCorporation,Defendant.Presently before the Court is Cambridge Research & Instrumentation’s (“CRI”) Motion toDismiss this Action Pursuant to Rule 12(b)(6). The sole issue before this Court is whether the actionmust be dismissed under the doctrine of res judicata. For the reasons set forth below, the Court

HEREBY GRANTS IN PART

and

DENIES IN PART

Plaintiff’s motion to dismiss.

BACKGROUND

On January 12, 2007, AntiCancer initiated an action against Cambridge Research &Instrumentations, Inc., alleging patent infringement of five different patents. (Case No. 07cv97JLS (RBB) (“

CRI I

”), Doc. No. 1.) A Second Amended Complaint (“SAC”) was filed on June 27,2007. (

CRI I

, Doc. No. 26.) On July 23, 2007, CRI filed its answer and counterclaims, includingcounterclaims of non-infringement and invalidity of each of the five patents. (

CRI I

, Doc. No. 30.)Magistrate Judge Brooks issued a Case Management Order in

CRI I

, ordering AntiCancer

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9cv351

to serve a “Disclosure of Asserted Claims and Preliminary Infringement Contentions” (“PICs”) oneach defendant by October 15, 2007. (

CRI I

, Doc. No. 49.) The PICs were served two days afterits deadline and contained several deficiencies, prompting AntiCancer to move for leave to amendits PICs on November 20, 2007. (

CRI I

, Doc. No. 65.) Magistrate Judge Brooks held a hearing onthe motion to amend on January 14, 2008. Over CRI’s objections at the hearing, Magistrate JudgeBrooks gave AntiCancer permission to file a supplemental declaration to show good cause for thePICs’ defects and scheduled a second hearing. (

CRI I

, Doc. No. 77 (hearing transcript).)At the second hearing, held on January 31, 2008 after the supplemental document had beenfiled, Magistrate Judge Brooks found that AntiCancer had not sufficiently established “goodcause” to amend the PICs and therefore denied leave to amend. (

CRI I

, Doc. Nos. 92, 88.) OnFebruary 6, 2008, this Court upheld Magistrate Judge Brooks’ Order, finding it “was not clearlyerroneous or contrary to law.” (

CRI I

, Doc. No. 106 at 8.)Two defendants named in

CRI I

, NIBRI and Merck, moved for summary judgment. (

CRI I

, Doc. Nos. 95, 62.) On May 14, 2008, this Court granted summary judgment of non-infringement in favor of Merck and NIBRI because they were parties absent from AntiCancer’sPICs. (

CRI I

, Doc. No. 115.) Similarly, AntiCancer’s defective PICs contained no reference totwo of the five patents, and the parties filed a joint motion dismissing those infringement claimswith prejudice. (

CRI I

, Doc. Nos. 148, 150.)As to the remaining three patents, CRI filed motions for summary judgment of non-infringement of these patents based on the defective PICs. (

CRI I

, Doc. No. 139.) On February13, 2009, this Court granted CRI’s motion for summary judgment of non-infringement as to allthree patents. (

CRI I

, Doc. No. 214.) AntiCancer was barred from asserting any evidence otherthan those disclosed in the PICs in its opposition. (

Id.

at 7.) Accordingly, the only evidence of infringement considered by the Court were an article where CRI cited an article previouslypublished by AntiCancer’s Dr. Hoffman and two photographs on CRI’s website. (

Id.

)The invalidity claims asserted by CRI remain to be adjudicated, thus the summary judgment grant was not a final judgment in

CRI I

. (

CRI I

, Doc. No. 225, making the summary judgment in favor of Merck a final judgment.)

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9cv351

On February 23, 2009, AntiCancer filed its complaint initiating the present action and fileda first amended complaint (“FAC”) on March 19, 2009. (Case No. 09cv351 (“

CRI II

”), Doc. Nos.1, 14.) The FAC asserts patent infringement against CRI for the three patents not dismissed withprejudice and whose invalidity claims are still pending in

CRI I

– the ‘159, ‘384, and ‘038 patents.(

CRI II

, Doc. No. 14.) CRI filed the present motion to dismiss the FAC pursuant to Rule 12(b)(6)on April 2, 2009. (

CRI II

, Doc. No. 14.) AntiCancer filed its opposition on May 20, 2009 (

CRI II

,Doc. No. 16) and CRI filed its reply on May 28, 2009 (

CRI II

, Doc. No. 17.) The hearing dateoriginally set for June 4, 2009 was thereafter vacated and the motion was taken under submissionon its papers.

LEGAL STANDARDA.Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for tworeasons: (1) lack of a cognizable legal theory or (2) pleading of insufficient facts under anadequate theory.

Balistreri v. Pacifica Police Dep’t,

901 F.2d 696, 699 (9th Cir. 1990) (internalcitation omitted). In reviewing a Rule 12(b)(6) motion to dismiss, the Court must assume the truthof all allegations of material fact and construe inferences in the light most favorable to thenonmoving party.

Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of the U.S.

, 497 F.3d972, 975 (9th Cir. 2007). While the complaint need not contain detailed factual allegations, “aplaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more thanlabels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Bell Atl. Corp. v. Twombly

, 550 U.S. 544, 127 S.Ct. 1955, 1964–65 (2007) (citing

Papasan v. Allain

, 478 U.S. 265, 286 (1986)). In other words, “conclusory allegations of law andunwarranted inferences are not sufficient to defeat a motion to dismiss.”

Associated Gen.Contractors of Am. v. Metro. Water Dist.

, 159 F.3d 1178, 1181 (9th Cir. 1998) (quoting

Pareto v.FDIC

, 139 F.3d 696, 699 (9th Cir. 1998)).Where a motion to dismiss is granted, “leave to amend should be granted ‘unless the courtdetermines that the allegation of other facts consistent with the challenged pleading could notpossibly cure the deficiency.’”

DeSoto v. Yellow Freight Sys., Inc.,

957 F.2d 655, 658 (9th Cir.

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