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Ramirez v. Boost Mobile/Sprint

United States District Court, N.D. California

June 12, 2017




         Plaintiff Manuel Alvarez Cabello Ramirez, representing himself, brings this civil action against Boost Mobile, Sprint, and Google (collectively, “Defendants”) for alleged advertising abuse and patent infringement. (Dkt. Nos. 1, 3.) On March 15, 2017, Plaintiff filed his complaint accompanied by a motion for preliminary injunction. (Dkt. No. 2.) Subsequently, on May 19, 2017, Plaintiff filed a second motion for preliminary injunction. Having considered the complaint and two motions, the Court DISMISSES the complaint with leave to amend pursuant to 28 U.S.C 1915, and DENIES Plaintiff's motions for preliminary injunction without prejudice.[1]


         Plaintiff alleges he was instrumental in providing software upgrades to Defendants. (Dkt. No. 3 at 1.) Plaintiff states that in August 2016 he began “producing through Boost Mobile” and “acquired” Boost Mobile Wallet, Whipit Pay, Google Pay, and PayPal through his Boost Mobile device. (Id. at 1-2.) Plaintiff alleges he produced “cutting edge technologies using his “apparatus of communications” including his Motorola Moto Z, phone number 510-850-2699, and email address (Id. at 2.) Plaintiff made “various connects” and “acquired a vast amount of licensed work.” (Id.) He alleges that various communications companies are aware of his work, but that Defendants “acquire, use, and sell” his “upgraded work.” (Id.) Plaintiff alleges that Defendants refuse to “acknowledge my person, my needs as a human being, as a father.” (Id.) He argues that Defendants have violated Section 230(c)(1) of the Communications Decency Act (“CDA”), which states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (47 U.S.C Section 230(c)(1); Id. at 3.) Plaintiff demands compensation for “pay/benefits for software upgrades” allegedly provided by Plaintiff and his phone 510-850-2699. (Dkt. No. 1 at 1.)


         Under 28 U.S.C. § 1915, the Court has a continuing duty to dismiss any case in which a party is proceeding in forma pauperis if the Court determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief.

         Regarding dismissals for failure to state a claim, Section 1915(e)(2) parallels the language of Federal Rules of Civil Procedure 12(b)(6). Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege facts that plausibly establish the defendant's liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). When the complaint has been filed by a pro se plaintiff, as is the case here, courts must “construe the pleadings liberally ... to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Upon dismissal, pro se plaintiffs proceeding in forma pauperis must be given leave to “amend their complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Franklin v. Murphy, 745 F.2d 1221, 1235 n.9 (9th Cir. 1984) (internal citations and quotation marks omitted); Lopez, 203 F.3d at 1130-31.


         I. Failure to State a Claim

         A. Patent Infringement

         To state a claim of patent infringement, “a plaintiff must allege that the defendant makes, uses, offers to sell, or sells the patented invention within the United States, during the term of the patent, and without authority of the patent holder.” Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 989 F.Supp. 1237, 1249 (N.D. Cal. 1997). “A claimant is not required to set out in detail the facts upon which he bases his claim, instead, the complaint need only plead facts sufficient to place the alleged infringer on notice.” Systemec Corp. v. Veeam Software Corp., 2012 WL 1965832, *2 (N.D. Cal. May 31, 2012) (citing Phonometrics, Inc. v. Hospitality Franchise Sys., Inc., 203 F.3d 790, 794 (Fed.Cir. 2000).

         This District has concluded that to “successfully state a claim for direct infringement, a plaintiff must allege five elements: (1) ownership of the allegedly infringed patent, (2) the infringer's name, (3) a citation to the patent, (4) the infringing activity, and (5) citations to applicable federal patent law.” Kilopass Tech. Inc. v. Sidense Corp., C 10-02066 SI, 2010 WL 5141843 (N.D. Cal. Dec.13, 2010) (citing Phonometrics, 203 F.3d at 794). Even in the absence of direct infringement, a “party may still be liable for inducement or contributory infringement of a method claim if it sells infringing devices to customers who use them in a way that directly infringes the method claim.” Systemic Corp., 2012 WL 1965832 at 3 (quoting AquaTex Indus., Inc. v. Techniche Solns., 419 F.3d 1374, 1379 (Fed. Cir. 2005).

         Plaintiff fails to meet the pleading requirements for patent infringement. Plaintiff has not cited to the patent he allegedly holds, identified the particular infringing activity, nor provided citations to the applicable patent law. Plaintiff fails to say specifically what his patent is, and what work that patent protects. “Patent infringement” or “copyright infringement” is not a claim upon which relief can be granted.

         B. Adve ...

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