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Select Retrieval, LLC v. Skechers

March 19, 2012

SELECT RETRIEVAL, LLC,
PLAINTIFF,
v.
SKECHERS, U.S.A.
DEFENDANT.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER GRANTING MOTIONS TO SUBSTITUTE ATTORNEYS; ORDER DISMISSING WITH PREJUDICE; ORDER DENYING WITHOUT PREJUDICE MOTIONS TO AMERICAN APPAREL, LLC, DISMISS; AND MOTION FOR EXTENSION OF TIME TO ANSWER ORDER DENYING AS MOOT

I. Motions to Substitute Counsel

On February 3, Plaintiff Select Retrieval, LLC moved to substitute X-Patents, APC (including John Hangartner, Esq.) in place of its current counsel San Diego IP Law Group LLP. On February 7, Defendant Build.com, Inc. moved to substitute William Baker, Esq., Diana Chen, Esq., and Mitra Eskandari-Azari, Esq. of Alston & Bird LLP in place of Jason Choy and Kirkland & Ellis, LLP.

For good cause shown, both motions are GRANTED and counsel are substituted accordingly.

II. Motion to Dismiss Claims Against, and Counterclaims by, Skechers, U.S.A., Inc.

On March 15, Select Retrieval and Defendant Skechers, U.S.A., Inc. jointly moved to dismiss all claims against Skechers, and all Skechers' counterclaims against Select Retrieval. In accordance with Fed. R. Civ. P. 41(a), the joint motion is GRANTED and all claims against Skechers, as well as counterclaims brought by Skechers, are DISMISSED WITH PREJUDICE. The parties shall each bear their own costs and attorney's fees.

III. Motions to Dismiss

On November 30, 2011, Select Retrieval filed its first amended complaint (the FAC) for infringement of U.S. Patent number 6,128,617 (the "Patent" or the "'617 Patent"), naming as Defendants thirty-three different businesses, of which six have since been dismissed. On December 12, 2011, Defendant Everything Furniture, Inc. filed a motion to dismiss. On January 10, 2012, eight Defendants (including Everything Furniture, Inc.) again moved to dismiss. Two other Defendants later joined in the motion. Both motions sought dismissal for failure to state a claim, but the second motion also sought dismissal on the basis of misjoinder. Specifically, the motion argued that Select Retrieval had improperly joined numerous claims arising from different transactions or occurrences, and that the claims' only common link-the fact that all Defendants were alleged to have infringed the same patent-was insufficient to render the claims related. In the alternative, the motions seek a more definite statement.

A. Motions to Dismiss

The complaint brings patent infringement claims against all Defendants. The Patent concerns a method of retrieving information from a database record with plural fields, or software instructions applying this method. Defendants argue the complaint does not meet the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.C.t 1937 (2009). In response, Select Retrieval cites McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007) for the principle that a complaint for patent infringement is adequate if it comports with the minimum standard of Fed. R. Civ. P. Form 18.*fn1 The FAC, all parties acknowledge, uses the same basic formulaic allegation against each Defendant:

Without license or authorization [the Defendant] is and has been directly infringing the '617 Patent in the United States at least by making, using, owning, operating, and/or maintaining one or more websites, including but not limited to [web address of Defendant's website], that embody the inventions claimed in the '617 Patent. Such acts constitute infringement under at least 35 U.S.C. § 271(a).

FAC, ¶¶ 40--72. A copy of the Patent was attached as an exhibit to the FAC. The FAC's discussion of jurisdiction and venue provides other details about the nature of the alleged infringement:

This Court has personal jurisdiction over Defendants at least because they conduct business in this Judicial District and have committed acts of direct patent infringement under 35 U.S.C. ยง271(a) in this Judicial District including, inter alia, importing, making, using, offering for sale and/or selling infringing products and/or selling ...


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