In Pragmatus Telecom LLC v. Aspect Software Inc., C.A. No. 14-359-RGA (D. Del. June 13, 2014), Judge Richard G. Andrews granted-in-part defendant’s motion to dismiss the complaint. The Court dismissed all claims of indirect and willful infringement without prejudice, and also denied the plaintiff’s request for leave to amend “without prejudice to consideration of any subsequently filed motion.” Id. at 2.
The Court noted that “[t]o describe the complaint as 98% boilerplate would not be unfair,” given that each count used the exact same language except for the different patents asserted in each. Id. at 1. The Court further observed that the plaintiff “could have been more specific” in its identification of accused products, given that there was additional public information available about them. Id. However, the Court found plaintiff’s description “adequate” enough to survive dismissal of the direct infringement claims. Id.
However, because the allegations of indirect infringement provided no detail as to when or what kind of written notice of infringement the defendant received, the Court dismissed these claims. Id. at 1-2. As the willfulness allegations were “similarly deficient,” the Court dismissed them as well. Id. at 2.
While plaintiff had requested leave to amend, the Court did not “know what facts Plaintiff could allege. As Defendant points out, Plaintiff has not asserted any additional facts that it could plead.” Id. While recognizing that Rule 15 allows amendment “when justice so requires,” this was a situation where the Court could not conclude that “justice requires anything in the absence of a proposed amended complaint,” particularly where “Plaintiff could have amended as a matter of course . . . after Defendant’s motion was filed” but did not. Therefore, the Court denied the request for leave to amend, but noted that it would “consider” allowing amendment if plaintiff filed a motion to amend. Id.
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