Case 2:13-cv-00329-ABC-FFM Document 19 Filed 03/21/13 Page 1 of 6 Page ID #:39

1 KARIN G. PAGNANELLI (SBN 174763) kgp@msk.com 2 KEVIN E. GAUT (SBN 117352) keg@msk.com 3 ALEXA L. LEWIS (SBN 235867) all@msk.com 4 MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard 5 Los Angeles, CA 90064-1683 Telephone: (310) 312-2000 6 Facsimile: (310) 312-3100 7 Attorneys for Defendant TARGET CORPORATION 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 13-00329 ABC (FFMx) Honorable Audrey B. Collins NOTICE OF MOTION AND MOTION BY TARGET CORPORATION TO DISMISS COMPLAINT Date: Time: Ctrm.: April 22, 2013 10:00 a.m. 680

11 DECKERS OUTDOOR CORPORATION, a Delaware 12 Corporation, 13 14 v. Plaintiff,

TARGET CORPORATION, a 15 Minnesota Corporation and DOES 110, inclusive, 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27
Mitchell Silberberg & Knupp LLP 5200749.2

28

Case 2:13-cv-00329-ABC-FFM Document 19 Filed 03/21/13 Page 2 of 6 Page ID #:40

1

NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 3 PLEASE TAKE NOTICE that, on April 22, 2013, in the courtroom of The 4 Honorable Audrey B. Collins of the United States District Court for the Central 5 District of California, 255 East Temple Street, Los Angeles, CA 90012, at 10:00 6 a.m., or as soon thereafter as the matter may be heard, Defendant Target 7 Corporation, shall and hereby does move this Court to dismiss Plaintiff’s 8 Complaint pursuant to Federal Rules of Civil Procedure, Rules 8, 9(b) and 9 12(b)(6). 10 This Motion is made on the following grounds: Plaintiff’s Complaint should 11 be dismissed under Rule 12(b)(6) for failure to contain sufficient factual matter to 12 state a claim to relief that is plausible on its face, and under Rule 9(b) for failure to 13 state with particularity the circumstances constituting fraud. 14 This Motion is and will be based on this Notice of Motion and Motion, the 15 accompanying Memorandum of Points and Authorities, any additional exhibits or 16 memoranda in support thereof, and any argument presented at the hearing on this 17 Motion. 18 This Motion is made following the conference of counsel pursuant to Local 19 Rule 7-3 that took place on March 14, 2013. 20 21 DATED: March 21, 2013 22 23 24 25 26 27 28 2 KARIN G. PAGNANELLI KEVIN E. GAUT ALEXA L. LEWIS MITCHELL SILBERBERG & KNUPP LLP By: /s/ Alexa L. Lewis Alexa L. Lewis Attorneys for Defendant TARGET CORPORATION

Case 2:13-cv-00329-ABC-FFM Document 19 Filed 03/21/13 Page 3 of 6 Page ID #:41

1 2 3 4 I.

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This is an action alleging design patent infringement and common law unfair

5 competition brought by a manufacturer of sheepskin boots. Plaintiff’s Complaint 6 contains twenty-nine paragraphs of legal conclusions but is almost entirely devoid 7 of facts, putting Defendant Target Corporation (“Target”) in the unenviable and 8 unfair position of defending itself against vague, boilerplate accusations. 9 In support of its allegations of willful patent infringement, Plaintiff only 10 states that Target has “offered and is currently advertising, offering for sale, and 11 selling footwear with designs that infringe upon Deckers’ Single Bailey Button 12 Boot.” (Dkt. No. 1 at ¶ 15.) Plaintiff provides no additional facts, leaving Target 13 without knowledge of the very basics of its alleged infringement, such as which 14 specific models or makes of shoes are accused and how the shoes allegedly 15 infringe them. The allegations underlying Plaintiff’s unfair competition claim are 16 similarly sparse, which is particularly egregious because Target was purportedly 17 acting fraudulently. (Dkt. No. 1 at ¶ 28.) In sum, the Complaint fails to give 18 Target fair or reasonable notice of its claims, even under the liberal pleading 19 standard of Federal Rule of Civil Procedure 8, let alone under Federal Rule of Civil 20 Procedure 9(b) which governs the claims sounding in fraud. 21 II. 22 23 PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM FOR PATENT INFRINGEMENT UNDER RULE 12(B)(6). To survive a motion to dismiss, a party asserting a claim must provide

24 sufficient facts that, if “accepted as true, . . . ‘state a claim to relief that is plausible 25 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 26 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 27 1955, 167 L. Ed. 2d 929 (2007)). A claim has “facial plausibility when the 28 plaintiff pleads factual content that allows the court to draw the reasonable 1

Case 2:13-cv-00329-ABC-FFM Document 19 Filed 03/21/13 Page 4 of 6 Page ID #:42

1 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 2 at 678. The plausibility standard is not akin to a “probability requirement,” but 3 asks for more than a sheer possibility that a defendant has acted unlawfully. Id. 4 Where a complaint pleads facts that are “merely consistent with” a defendant's 5 liability, it “stops short of the line between possibility and plausibility of 6 entitlement to relief.” Twombly, 550 U.S. at 557. 7 The Twombly Court further explained that, under Federal Rule of Civil 8 Procedure Rule 8, a complaint must make a “showing” that the plaintiff is entitled 9 to relief “rather than a blanket assertion” of entitlement to relief. Id. at 555, n.3. 10 While Rule 8 does not require “detailed factual allegations,” it nevertheless 11 “demands more than an unadorned, the defendant-unlawfully-harmed-me 12 accusation.” Iqbal, 556 U.S. at 678. A pleading that offers “labels and 13 conclusions” or “a formulaic recitation of the elements of a cause of action will not 14 do.” Twombly, 550 U.S. at 555. 15 Plaintiff’s Complaint fails to meet these standards. It consists of nothing 16 more than legal conclusions of wrongdoing, with inadequate supporting facts. 17 First, Plaintiff’s patent claim neither identifies the alleged infringing products 18 (referring simply to “footwear”), nor does it alleges how the product infringes upon 19 the purported patent. This is not enough. See, e.g., Proxyconn Inc. v. Microsoft 20 Corp., 2012 U.S. Dist. LEXIS 70614 at *2, 10 (C.D. Cal. 2012) (granting motion 21 to dismiss when plaintiff alleged only that each defendant was making, using, 22 selling, offering to sell, or importing “personal computers” or “computer 23 systems”); Smartmetric Inc. v. Mastercard Inc., 2010 U.S. Dist. LEXIS 141976 at 24 *9 (C.D. Cal. 2010) (granting motion to dismiss because “Plaintiff's allegations fail 25 to identify adequately which of Defendants’ products or components of 26 Defendants’ products alleged to do what the ‘464 patent does”). 27 Second, Plaintiff’s patent claim conclusorily alleges that Target’s acts of 28 infringement were “willful,” (Dkt. No. 1 at ¶ 23), but fails to state any supporting 2

Case 2:13-cv-00329-ABC-FFM Document 19 Filed 03/21/13 Page 5 of 6 Page ID #:43

1 facts or that Target had advance knowledge of Plaintiff’s patents. This too is 2 insufficient. See Robert Bosch Healthcare Systems, Inc. v. Express MD Solutions, 3 LLC, 2012 U.S. Dist. LEXIS 98641 at *8 (N.D. Cal. 2012) (plaintiff failed to 4 adequately plead willful patent infringement, including because plaintiff “failed to 5 make out even the ‘barest factual assertion’ that Defendant knew of the patents-in6 suit, but instead has made a mere allegation, without more, that Defendant had 7 actual knowledge of those patents.”). 8 III. 9 10 PLAINTIFF’S UNFAIR COMPETITION CLAIM FAILS UNDER RULE 9(B). Of course, even stricter pleading applies to claims sounding in fraud: a

11 plaintiff must “state with particularity the circumstances constituting fraud.” Fed. 12 R. Civ. Pro. 9(b) (emphasis added). Under Rule 9(b), a complaint must be 13 “specific enough to give defendants notice of the particular misconduct…so that 14 they can defend against the charge and not just deny that they have done anything 15 wrong.” Planet Coffee Roasters, Inc. v. Dam, 2009 U.S. Dist. LEXIS 70775 at 16 *11-12 (C.D. Cal. 2009) (dismissing common law unfair competition claim). 17 EcoDisc Tech. AG v. DVD Format/Logo Licensing Corp., 711 F. Supp. 2d 1074, 18 1085 (C.D. Cal. 2010) (granting motion to dismiss in Lanham Act false advertising 19 case). 20 Plaintiff’s claim for common law unfair competition sounds in fraud and is 21 subject to the Rule 9(b) requirements. See Dkt. No. 1 at ¶ 29 (“The conduct herein 22 complained of is…fraudulent…”) (emphasis added). However, Plaintiff fails to 23 plead that claim with the extra necessary specificity demanded by Rule 9(b). For 24 example, Plaintiff must state specifics with regard to Target’s alleged 25 infringement, such as the product at issue, the facts supporting the allegations of 26 willfulness, and the manner in which Target’s products purportedly infringe. 27 Therefore, those claims are also subject to dismissal. 28 3

Case 2:13-cv-00329-ABC-FFM Document 19 Filed 03/21/13 Page 6 of 6 Page ID #:44

1 IV. 2 3

CONCLUSION

For these reasons, Target respectfully moves the Court to dismiss Plaintiff’s

4 Complaint under Rules 8, 9(b) and 12(b)(6). 5 6 DATED: March 21, 2013 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 KARIN G. PAGNANELLI KEVIN E. GAUT ALEXA L. LEWIS MITCHELL SILBERBERG & KNUPP LLP By: /s/ Alexa L. Lewis Alexa L. Lewis Attorneys for Defendant TARGET CORPORATION

Case 2:13-cv-00329-ABC-FFM Document 19-1 Filed 03/21/13 Page 1 of 2 Page ID #:45

1 KARIN G. PAGNANELLI (SBN 174763) kgp@msk.com 2 KEVIN E. GAUT (SBN 117352) keg@msk.com 3 ALEXA L. LEWIS SBN (235867) all@msk.com 4 Mitchell Silberberg & Knupp LLP 11377 West Olympic Boulevard 5 Los Angeles, CA 90064-1683 Telephone: (310) 312-2000 6 Facsimile: (310) 312-3100 7 Attorneys for Defendant Target Corporation 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 13-00329 ABC (FFMx) Honorable Audrey B. Collins [PROPOSED] ORDER GRANTING DEFENDANT TARGET CORPORATION’S MOTION TO DISMISS COMPLAINT

11 DECKERS OUTDOOR CORPORATION, a Delaware 12 Corporation, 13 14 v. Plaintiff,

TARGET CORPORATION, a 15 Minnesota Corporation and DOES 110, inclusive, 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27
Mitchell Silberberg & Knupp LLP 5200746.1

28

Case 2:13-cv-00329-ABC-FFM Document 19-1 Filed 03/21/13 Page 2 of 2 Page ID #:46

1 2 3

ORDER

This matter comes before the Court on Defendant’s Motion to Dismiss.

4 After reviewing and considering the materials submitted by the parties, good cause 5 appearing therefor, the Court grants Defendant’s Motion to Dismiss, in its entirety, 6 and dismisses this action without prejudice, with an Amended Complaint to be 7 filed, if at all, within ___ days. 8 9 10 11 DATED: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Mitchell Silberberg & Knupp LLP 5200746.1

IT IS SO ORDERED

Honorable Audrey B. Collins United States District Judge

28 1

Sign up to vote on this title
UsefulNot useful