HydraAssist LLC v. RK Partnership LLC et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
HYDRAASSIST LLC,
Plaintiff,
vs.
RK PARTNERSHIP LLC; BIG FRIG, LLC,
Defendants.
4:22-CV-04004-RAL
OPINION AND ORDER GRANTING
DEFENDANT BIG FRIG, LLC'S MOTION
TO DISMISS AND DEEMING PLAINTIFF
TO HAVE FILED FOR LEAVE TO AMEND
COMPLAINT
Plaintiff HydraAssist LLC ("HydraAssist") filed a complaint against Defendants RK
Partnership LLC and Big Frig, LLC ("Big Frig") alleging three counts of patent infringement.
Doc. 1, Big Frig filed a motion to dismiss for failure to state a claim. Doc. 16. HydraAssist
opposes Big Frig's motion to dismiss. Doc. 18. In the alternative, HydraAssist asks this Court for
leave to file an amended complaint attached to its Response in Opposition to Motion to Dismiss.
Doc. 18-3. The original complaint fails to plead adequate facts to state a claim for patent
infringement but HydraAssist is granted leave to file its amended complaint.
I. Background
HydraAssist (d/b/a CattleVacBox) is a Minnesota limited liability company. Doc. 1 at ^ 1.
HydraAssist owns U.S. Patent No. 10,322,866 ("866 Patent"); U.S. Patent No. 10,807,786 ("786
Patent"); and U.S. Design Patent No. D836,859 ("859 Design Patent"). Doc. 1 at U 2; Doc. 1-1;
Doc. 1 -2; Doc. I -3. The 866 Patent and the 786 Patent are utility patents, and as the name connotes
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the 859 Design Patent is a design patent. Doc. 18 at 2. All three patents pertain to thermally
insulated livestock medication containers/coolers. Doc. 1-1; Doc. 1-2; Doc. 1-3.
HydraAssist alleges that Defendants RK Partnership LLC (d/b/a Cross Five Cattle Coolers)
and Big Frig infringed on those patents by making, using, selling, and/or offering to sell thermally
insulated livestock medication containers, "including the 3 Holster Ranch Hand Cross Vaccine
Cooler, the 2 Holster Chute Side Cooler, and the 4 Holster Ranch Hand Vaccination Cooler
(collectively 'the Accused Products')." Doc. 1 at ^ 18. HydraAssist further alleges that
Defendants, despite having actual knowledge ofHydraAssist's patent rights, have "continued to
make, use, sell, or offer to sell the Accused Products with complete disregard for Plaintiffs patent
rights" and that Defendants knew or should have known that its actions infringed those patent
rights. Doc. 1 at ^ 19-21.
The complaint alleges that the Accused Products "infringe at least claims 1-5 and 15 of the
866 Patent, literally, directly or indirectly, or under the doctrine of equivalents." The complaint
details this infringement by alleging, "upon information and belief," that the Accused Products
include each of the limitations detailed by claims 1 through 5 and 15 of the 866 Patent. For
example, Paragraph 30 of the complaint includes almost identical language to that in Claim 15 of
the 866 Patent:
Paragraph 30
Upon information and belief, the
Accused Products provide a livestock
medication container, comprising: a
thermally insulated body having a
plurality of upstanding sidewalls, a
bottom wall interconnecting the plurality
of upstanding sidewalls to define an
interior cavity, and a top opening; a first
lid segment and a second lid segment
configured to provide a closure of a first
Claim 15
A livestock medication container,
comprising: a thermally insulated body
having a plurality of upstanding
sidewalls, a bottom wall interconnecting
the plurality of upstanding sidewalls to
define an interior cavity, and a top
opening; a first lid segment and a second
lid segment configured to provide a
closure of a first end and a second end of
the top opening when placed in a closed
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end and a second end of the top opening
when placed in a closed position, each of
the first lid segment and the second lid
segment movably attached to at least one
of the plurality of upstanding sidewalls;
and one or more sleeves forming
apertures extending through the second
lid segment, wherein the one or more
sleeves extend from an interior of the lid
and are dimensioned to retain a
dispensing end of a livestock medication
delivery device in an upright orientation
with a delivery tip of the livestock
medication device received within the
interior cavity.
position, each of the first lid segment and
the second lid segment movably attached
to at least one of the plurality of
upstanding sidewalls; and one or more
sleeves forming apertures extending
through the second lid segment, wherein
the one or more sleeves extend from an
interior of the lid and are dimensioned to
retain a dispensing end of a livestock
medication delivery device in an upright
orientation with a delivery tip of the
livestock medication device received
within the interior cavity.
Doc. 1 at ^ 30; Doc 1-1 at 15. Paragraphs 25 through 29 of the complaint similarly recite language
from claims 1 through 5 of the 866 Patent. Doc. 1 at ^ 25-29; Doc. 1-1 at 14-15.
HydraAssist takes this same approach to the 786 Patent, Doc. 1 at ^34-44. The complaint
alleges the Accused Products "infringe at least claims 1-3, 15, and 18 of the 786 Patent, literally,
directly or indirectly, or under the doctrine of equivalents." Doc. 1 at ^ 36. As it does with the
866 Patent, the complaint alleges the Accused Products include each of the limitations detailed by
those claims of the 786 Patent with language that is nearly identical to the language of the patent
itself. Doc. 1 at ^ 37^1; Doc. 1-2 at 15.
Finally, HydraAssist further alleges that the offer and sale of at least some of the Accused
Products "infringe[s] the design covered by the 859 Design Patent." Doc. 1 at ^ 47. According to
the complaint:
Defendants have infringed and continue to infringe the '859 Design Patent because,
in the eye of an ordinary observer, giving such attention as a purchaser usually
gives, at least some of the Accused Products incorporate substantially the same
design covered by the '859 Design Patent, the resemblance being such as to deceive
such an ordinary observer, inducing such an ordinary observer to purchase
Defendants' product while supposing it to be Plaintiffs product.
Doc. 1 at ^48.
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The complaint includes a single picture of one of the Accused Products. Doc. 1 at ^ 18
Fig. 1. Figure 1 of the complaint is a photo of the 3 Holster Ranch Hand Cross Vaccine Cooler.
Id, The photo shows the cooler in a front facing position with the lid closed. Id. All three patents
are attached to the complaint as exhibits. Doc. 1-1; Doc. 1-2; Doc 1-3.
Big Frig moved to dismiss under Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6).
Doc. 16. Big Frig contends that HydraAssist has not plead "sufficient factual information from
which it may be plausibly inferred that the accused products infringe on the Patents or the Design
Patent." Doc. 17 at 1. In Big Frig's view, "HydraAssist's Complaint simply recites the purported
claim elements and borrows language from section 271 of the Patent Act, without providing any
factual information in support of its alleged infringement action." Id. at 2. HydraAssist contends
"the Complaint is in no way deficient or insufficient to provide the level of notice required at this
stage of litigation." Doc. 18 at 1.
In the alternative, HydraAssist requests leave to file an amended complaint if this Court
grants Big Frig's motion. Id. The proposed amended complaint includes more photos and figures
depicting how HydraAssist believes the Accused Products infringe on the three patents. Doc. 18-
3. HydraAssist informs this Court that "Plaintiffs counsel reached out to Defendants' counsel and
sent them a proposed amended complaint prior to filing the [Response in Opposition to Motion to
Dismiss] in a good faith effort to address Defendants' concerns without protracted motion
practice." Doc, 18 at 20. Big Frig's Reply Brief in Support of its Motion to Dismiss, Doc. 19,
neither opposes the proposed amended complaint nor addresses whether Big Frig believes the
proposed amended complaint to adequately plead claims.
II. Legal Standard
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The Court of Appeals for the Federal Circuit provides controlling precedent on substantive
legal issues when a plaintiffs complaint asserts a claim arising under federal patent law. See
Schinzing v. Mid-States Stainless. Inc., 415 F.3d 807, 811 (8th Cir. 2005) (following Federal
Circuit substantive precedent where plaintiffs complaint asserts claim arising under federal patent
law). The applicable law of the Eighth Circuit controls on procedural issues raised by a motion to
dismiss a patent infringement action. See Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1346
(Fed. Cir. 2018) ("Because it raises a purely procedural issue, an appeal from an order granting a
motion to dismiss for failure to state a claim upon which relief can be granted is reviewed under
the applicable law of the regional circuit.") (citation omitted). HydraAssist and Big Frig seem to
agree that the plausibility standard from Ashcroft v. Iqbal, 556 U.S. 662 C2009) and Bell Atlantic
Corp. v, Twombly, 550 U.S. 544 (2007) governs here, but they disagree about the level of factual
detail that must be in the complaint to satisfy that standard in the patent context.'
This Court has been unable to find any recent Eighth Circuit or Federal Circuit cases applying
Eighth Circuit precedent on review of a motion to dismiss a patent infringement action. This is
perhaps to be expected, considering that the Federal Rules only recently abrogated past guidance
on pleading patent infringement claims. The District Court in Battle Sports Science, LLC v. Shock
Doctor. Inc., 225 F. Supp. 3d 824, 834-35 (D. Neb. 2016), summarized the lack of guidance on
this point:
[U]ntil abrogated on December 1, 2015, Federal Rule of Civil Procedure 84
and Form 18, which set forth a sample complaint, provided guidance as to what
was necessary to plead direct patent infringement under the Federal Rules.
Although no circuit court has yet weighed in on what effect abrogation has on the
proper pleading standards, it appears that most of the courts that have decided the
issue have concluded the plausibility standard set forth inTwombly and Iqbal,
applies to claims for direct patent infringement. This Court predicts the Eighth
Circuit will likewise apply the plausibility standard.
(citations omitted and cleaned up). Given the lack of direct guidance from the Eighth
Circuit on the pleading standards for direct patent infringement cases, this Court feels
comfortable following the direction of the Federal Circuit Court of Appeals, even though
many of the on-point decisions from that court draw from precedent outside the Eighth
Circuit. See generally U.S. Water Servs., Inc. v. ChemTreat, Inc., 794 F.3d 966, 970 (8th
Cir. 2015) ("In the realm of patent law, we rely on the Federal Circuit's precedent for
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That said, on a Rule 12(b)(6) motion to dismiss for failure to state a claim, courts must
accept a plaintiffs factual allegations as true and make all inferences in the plaintiffs favor but
need not accept a plaintiffs legal conclusions. Retro Television Network, Inc. v. Luken
Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012); Fed. R. Civ. P. 12(b). To survive a motion
to dismiss for failure to state a claim, a complaint must contain "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although detailed
factual allegations are unnecessary, the plaintiff must plead enough facts to "state a claim to relief
that is plausible on its face." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
A claim is plausible on its face "when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged," id.
at 678, "even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a
recovery is very remote and unlikely,'" Twombly, 550 U.S. at 556 fquoting Scheuer v. Rhodes,
416 U.S. 232,236 (1974)). Still, "conclusory statements" and "naked assertion^] devoid of further
factual enhancement" do not satisfy the plausibility standard. Iqbal, 556 U.S. at 678 (alteration in
original) (citation and internal marks omitted).
In a patent action, "a plaintiff need not prove its case at the pleading stage." Bot M8 LLC
v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir. 2021) (citations omitted and cleaned up); see
also Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 961 (8th Cir. 2015)
("The pleading standard under Rule 12(b)(6) contemplates that plaintiffs will often be unable
to prove definitively the elements of the claim before discovery, particularly in cases where the
necessary information is within the control of the defendants."). In other words, "[a] plaintiff is
persuasive guidance."). There does not appear to be much regional variance on this point
anyway.
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not required to plead infringement on an element-by-element basis. Instead, it is enough that a
complaint place the alleged infringer on notice of what activity ... is being accused of
infringement." Bot M8 LLC, 4 F.4th at 1352 (cleaned up and citations omitted). Whether
allegations of patent infringement can survive a motion to dismiss for failure to state a claim
"var[ies] depending upon a number of factors, including the complexity of the technology, the
materiality of any given element to practicing the asserted claim(s), and the nature of the allegedly
infringing device." Id, at 1353. But "a plaintiff cannot assert a plausible claim for infringement
under the Iqbal/Twombly standard by reciting the claim elements and merely concluding th'at the
accused product has those elements." Id.
III. Discussion
Under 35 U.S.C. § 271(a), "whoever 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 therefor, infringes the patent." "A patentee can establish a
claim of infringement either by showing literal infringement or by relying on the doctrine of
equivalents." Liqui-Box Corp. v. Scholle IPN Corp., 449 F. Supp. 3d 790, 797 (N.D. 111. 2020).
"To establish literal infringement, every limitation set forth in a claim must be found in an accused
product, exactly." Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995).
Where a product "does not literally infringe upon the express terms of a patent claim," it "may
nonetheless be found to infringe if there is 'equivalence' between the elements of the accused
product... and the claimed elements of the patented invention." Nalco, 883 F.3d at 1354 (quoting
Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21 (1997)). HydraAssist alleges
that the Accused Products "literally infringe each of the asserted claims," but "should the
Defendants argue that one or more elements of any asserted claim are not literally found in one of
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the accused products, Plaintiff submits that any such allegedly missing element would be met
under the doctrine of equivalents." Doc. 18 at 14.
Courts have variously stated what level of detail is necessary to plead a plausible case of
patent infringement. See Disc Disease Sols. Inc. v. VGH Sols.. Inc., 888 F.3d 1256, 1260 (Fed.
Cir. 2018) (plaintiffs allegations met plausibility standard where complaint specifically identified
the accused products by name, attached photos of the product packaging as exhibits, and alleged
accused products met elements of claim literally or equivalently.); Liqui-Box Corp. v. Scholle IPN
Corp., 449 F. Supp. 3d 790, 798 (N.D. 111. 2020) (noting "the pleading bar is not a high one"); Zieit
Wireless. Inc. v. LG Elecs. U.S.A,. Inc., No. 20-01494, 2022 WL 170864, at *4 (D.N.J, Jan.18,
2022) (stating that a complaint "would sufficiently plead direct infringement where (1) it named
the accused product; (2) in each count, it described the alleged infringement; and (3) identified
how the accused product infringed on every element of at least one claim in each of the plaintiffs
patents") (citations omitted and cleaned up); Horowitz v. Yishun Chen, No. 17-00432, 2018 WL
6219928, at *3 (C.D. Cal. May 14, 2018) ("At the very least. Defendants . , . need[] to include
facts sufficient to allow a reasonable inference that each limitation of one of the asserted patent
claims is performed."); see also Roberson v. Dakota Boys & Girls Ranch, 42 F,4th 924, 928 (8th
Cir. 2022) (explaining that the "facts alleged must be enough to raise a right to relief above the
speculative level") (citation omitted).
Although the standard to plead a patent infringement claim is not a high bar, the original
complaint does not fairly put the Defendants on notice of how the Accused Products infringe the
patents at issue. The original complaint describes HydraAssist's product and patents thoroughly
but is very conclusory in its allegation of infringement. As even HydraAssist admits, its
"technology is relatively simple," and in turn the Accused Products are relatively simple.
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HydraAssist ought to better describe any alleged infringement. Indeed, HydraAssist's brief and
proposed amended complaint do just that. At least one court has found that "photographs
annotated with arrows showing which part of the [Accused Product] is described by the claim and
corresponds to each claim limitation" go a long way towards providing a defendant with adequate
notice. Liqui-Box Corp, 449 F. Supp. 3d at 798. The proposed amended complaint does this; the
original complaint does not.
HydraAssist, perhaps recognizing the shortcoming in its original complaint, requested
leave to file an amended complaint in its briefing. Federal Rule of Civil Procedure 15(a) provides
that "a party may amend its pleading . . . with the opposing party's written consent or the court's
leave." Fed. R. Civ. P. 15. HydraAssist ostensibly asked for Big Frig's consent to amend its
complaint, see Doc. 18 at 20, without receiving a response. HydraAssist should have filed a
separate motion to amend attaching its proposed amended complaint, D.S.D. CIV LR 15.1, rather
than making the request in briefing and attaching the proposed amended complaint to its brief, See
Fed. R. Civ. P. 7(b) (stating that requests for court action must be made by filing a motion).
Regardless, under Rule 15(a), "[t]he court should freely give leave [to amend the complaint] when
justice so requires," Fed. R. Civ. P. 15., and "[a] decision whether to allow a party to amend [a]
complaint is left to the sound discretion of the district court," Popoalii v. Corr. Med. Servs., 512
F.3d 488, 497 (8th Cir. 2008). See also Plymouth Ctv. v. Merscorp. Inc., 774 F.3d 1155,1160
(8th Cir. 2015) (motions for leave to amend "should be freely given in order to promote justice").
Denial of a motion to amend "is appropriate only in those limited circumstances in which undue
delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to
the non-moving party can be demonstrated." Hillesheim v. Myron's Cards & Gifts, Inc., 897 F.3d
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953, 955 (8th Cir. 2018) (citation omitted). An amendment is futile if it "could not withstand a
motion to dismiss under Rule 12(b)(6)." Id. (citation omitted).
As it stands, this Court is inclined to grant HydraAssist leave to file an amended complaint.
The request to amend was not in bad faith, futile, unduly delayed, or prejudicial to the defense,
However, because HydraAssist did not file its request to amend the complaint as a motion, the
Defendants have not had reason to inform this Court of their position on amendment of the
complaint.
IV. Conclusion
For the reasons stated above, it is hereby
ORDERED that Defendant Big Frig, LLC's Motion to Dismiss, Doc. 16, is granted as to
the original complaint, Doc. 1, though filing an amended complaint likely will be allowed so the
case is not dismissed at this time. It is further
ORDERED that HydraAssist's request to amend complaint attaching the proposed
amended complaint, Doc. 18-3, is deemed to be a motion for leave to amend complaint, the clerk
of court is to flag it as such, and Defendants have 21 days from the filing of this Opinion and Order
to respond on whether they object to the motion for leave to amend complaint.
DATED this Ig/** day of October, 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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