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Petedge, Inc. v. Yahee Technologies Corp.

United States District Court, D. Massachusetts

May 2, 2017

PETEDGE, INC., Plaintiff/Counterclaim Defendant,
v.
YAHEE TECHNOLOGIES CORP., Defendant/Counterclaim Plaintiff.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS DISTRICT JUDGE.

         Plaintiff PetEdge, Inc. (“PetEdge”), alleges that Defendant Yahee Technologies Corp. (“Yahee”) is infringing upon its patent entitled “Folding Pet Ramp and Steps, ” United States Patent No. 7, 621, 236 (the “'236 Patent”), in violation of 35 U.S.C. § 271. Yahee asserted nine affirmative defenses and brought a counterclaim for a declaratory judgment of invalidity and non-infringement of the '236 Patent. PetEdge moved to dismiss Yahee's counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike Yahee's sixth and seventh affirmative defenses pursuant to Rule 12(f). [ECF No. 15]. For the reasons explained below, the Court denies PetEdge's motion to dismiss Yahee's counterclaim and grants PetEdge's motions to strike Yahee's sixth and seventh affirmative defenses.

         I.BACKGROUND

         The following facts are drawn from the complaint. [ECF No. 1]. PetEdge is in the business of designing, sourcing, manufacturing, and distributing pet-related merchandise. PetEdge invented a folding pet ramp and steps combination apparatus (“pet ramp/steps”) and owns a patent, the '236 Patent, directed to various embodiments of this apparatus. PetEdge sells its pet ramp/steps under its Pet Studio and Guardian Gear brands.

         Yahee is also in the business of selling pet-related merchandise and offers several pet ramp/steps for sale. Although Yahee offers four distinct models, they all appear to be the same or very similar to each other. Yahee's products compete directly with PetEdge's pet ramp/steps products.

         PetEdge initiated this action against Yahee on August 17, 2015. [ECF No. 1]. On October 24, 2016, Yahee filed its answer. [ECF No. 9]. Currently before this Court is PetEdge's motion to dismiss Yahee's counterclaim and to strike Yahee's sixth and seventh affirmative defenses. [ECF No. 15]. Yahee amended its counterclaim and opposed PetEdge's motion to dismiss and motion to strike on November 17, 2016. [ECF Nos. 17-18]. PetEdge filed its reply to Yahee's opposition [ECF No. 23] and an answer to the amended counterclaim [ECF No. 24] on December 1, 2016.

         II. PETEDGE'S MOTION TO DISMISS YAHEE'S COUNTERCLAIM

         In its motion to dismiss Yahee's counterclaim, PetEdge argues that Yahee failed to meet the pleading requirements of Rule 8. [ECF No. 15]. Yahee responded by amending its counterclaim to set forth additional factual allegations. [ECF No. 17]. PetEdge has not renewed its motion to dismiss with respect to the amended counterclaim.

         “It is well settled that an amended complaint supersedes the original complaint.” Lowden v. William M. Mercer, Inc., 903 F.Supp. 212, 216 (D. Mass. 1995). Because Yahee amended its counterclaim, its original counterclaim “is no longer operative.” In re Celexa & Lexapro Mktg. & Sales Practices Litig., 751 F.Supp.2d 277, 286 (D. Mass. 2010) (denying a motion to dismiss as moot where the complaint that defendant moved to dismiss had been amended). Therefore, PetEdge's motion to dismiss Yahee's original counterclaim is denied as moot.

         III. PETEDGE'S MOTION TO STRIKE YAHEE'S AFFIRMATIVE DEFENSES

         PetEdge has also moved to strike Yahee's sixth and seventh affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f), which authorizes this Court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “Motions to strike under Rule 12(f) are generally disfavored, and this Court has previously stated that they ‘should be granted only when it is beyond cavil that the defendant[] could prevail on them.'” United States SEC v. Nothern, 400 F.Supp.2d 362, 364 (D. Mass. 2005) (quoting Honeywell Consumer Prods. Inc. v. Windmere Corp., 993 F.Supp. 22, 24 (D. Mass. 1998)). “A plaintiff may prevail on a Rule 12(f) motion where ‘it clearly appears that the plaintiff would succeed despite any state of facts which could be proved in support of defense.'” Id. (quoting FDIC v. Gladstone, 44 F.Supp.2d 81, 85 (D. Mass. 1999)). “Even when technically appropriate, motions to strike are not typically granted absent a showing of prejudice to the moving party.” United States v. Sampson, 820 F.Supp.2d 202, 241 (D. Mass. 2011). “[A] motion to strike will not be granted if the insufficiency of the defense is not clearly apparent, or if it raises factual issues that should be determined on a hearing on the merits.” Nothern, 400 F.Supp.2d at 364 (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1381, at 421-22 (3d ed. 2004)).

         a. PetEdge's Motion to Strike Yahee's Seventh Affirmative Defense

         Yahee's seventh affirmative defense reads, in full:

Upon information and belief, and as likely will be supported by evidence after a reasonable opportunity for further investigation and discovery the '236 Patent is unenforceable because during their prosecution, the United States Patent and Trademark Office was not fully advised of all material facts and prior art, ...

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