The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER DENYING AMENDED COMPLAINT DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD (ECF No. 114)
Presently before the Court is Defendants Panda Windows and Doors, LLC ("Panda") and Eyal Avi Shoshan's ("Shoshan," and collectively, "Defendants") motion to dismiss Plaintiff Weiland Sliding Doors and Windows, Inc.'s ("Weiland") third amended complaint ("TAC"). (Mot. to Dismiss, ECF No. 114) Also before the Court are Weiland's opposition, (Resp. in Opp'n, ECF No. 120), and Defendants' reply, (Reply in Supp., ECF No. 121). The hearing set for the motion on January 5, 2012, was vacated, and the matter taken under submission on the papers. Having considered the parties' arguments and the law, the Court DENIES Defendants' motion.
Plaintiff Weiland and Defendant Panda are competitors in the doors and windows industry. In this patent infringement suit, Weiland's TAC asserts claims against Panda and its president, Shoshan, for direct patent infringement, inducement of infringement, and contributory infringement of two of Weiland's patents: U.S. Patent Nos. 7,007,343 ("the '343 Patent") and 6,792,651 ("the '651 Patent"). (TAC, ECF No. 112)
Weiland first filed suit on March 30, 2010, (Compl., ECF No. 1), and then filed a first amended complaint ("FAC") one month later, (FAC, ECF No. 6). Approximately five months after filing the FAC, Weiland filed a motion to file a second amended complaint ("SAC"), (Mot. to Amend, ECF No. 28), which the Court granted, (Order, Jan. 18, 2011, ECF No. 78). Weiland's SAC was filed on February 1, 2011, (SAC, ECF No. 83), and Defendants filed a motion to dismiss on February 18, 2011, (Mot. to Dismiss SAC, ECF No. 87). The Court granted Defendants' motion in its entirety, dismissing without prejudice Weiland's claim for direct infringement against Shoshan,*fn1 and the claims for inducement of infringement and contributory infringement against both Shoshan and Panda. (Order, Aug. 10, 2011, ECF No. 109)
The operative TAC was thereafter filed on September 7, 2011, asserting claims of direct infringement against Panda, inducement of infringement against Panda and Shoshan, and contributory infringement against Panda and Shoshan. (TAC, ECF No. 112) Defendants filed the instant motion to dismiss challenging the inducement and contributory infringement claims on September 28, 2011. (Mot. to Dismiss, ECF No. 114)
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, - US - , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990).
Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
As an initial matter, Weiland opposes Defendants' motion on procedural grounds, arguing that it should be denied as untimely. (Resp. in Opp'n 2--3, ECF No. 120) Specifically, Weiland points to Federal Rule of Civil Procedure 15(a)(3) as setting the deadline for Defendants' Rule 12(b)(6) motion. Pursuant to the timing mandate of that rule, argues Weiland, Defendants' motion was due on September 21, 2011, or fourteen days after the TAC was filed. Because Defendants' motion was not filed until September 28, 2011, Weiland contends the motion was untimely and "should be dismissed on this basis alone." (Id. at 3)
Weiland is incorrect that Defendants' motion was untimely. The only time limitation on Rule 12(b) motions is that they "be made before pleading if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). Here, Rule 15, which deals with amended pleadings, specifies the time for serving a responsive pleading. See, e.g., Gen. Mills, Inc. v. Kraft Foods Global, Inc., 487 F.3d 1368, 1376 (Fed. Cir. 2007) ("[T]he deadline for responding to an amended complaint is established separately under Rule 15."), amended by 495 F.3d 1378 (Fed. Cir. 2007). Under Rule 15(a)(3), "any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days ...