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PetEdge, Inc. v. Marketfleet Sourcing, Inc.

United States District Court, D. Massachusetts

July 12, 2017

PETEDGE, INC., Plaintiff,
v.
MARKETFLEET SOURCING, INC. d/b/a FRONTPET, Defendant.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO DISMISS THE COUNTERCLAIM AND TO STRIKE CERTAIN AFFIRMATIVE DEFENSES

          F. Dennis Saylor IV United States District Judge

         This is a patent dispute. On December 20, 2016, plaintiff PetEdge, Inc. brought suit against defendant Marketfleet Sourcing, Inc., alleging infringement of United States Patent Number 7, 621, 236 in violation of 35 U.S.C. § 271. In response, Marketfleet has filed an answer and counterclaim alleging fourteen affirmative defenses and three claims for false marking and declaratory judgment of non-infringement and invalidity.

         PetEdge has moved to dismiss the counterclaim under Fed.R.Civ.P. 12(b)(6) and to strike certain affirmative defenses under Fed.R.Civ.P. 12(f). For the following reasons, that motion will be granted in part and denied in part.

         I. Background

         Unless otherwise noted, the facts are set forth as alleged in the counterclaim.

         PetEdge, Inc. is a Massachusetts corporation that designs and sells pet-related products. (Compl. ¶ 2). Marketfleet Sourcing, Inc. is a California corporation that also sells pet-related products, among other things. (Id. at 6; Countercl. ¶ 2).

         On November 24, 2009, the United States Patent and Trademark Office issued Patent Number 7, 621, 236 (the “'236 Patent”), entitled “Folding Pet Ramp and Steps.” (Compl. ¶ 13). PetEdge appears as the assignee on the first page of the '236 Patent. (Countercl. ¶ 14). In the complaint, PetEdge alleges that it sells a “pet ramp/steps” product called “Renew Rampsteps” under the brand name “Pet Studio.” (Compl. ¶ 4). It further alleges that Renew Rampsteps is marked by the '236 patent. (Id.).

         Marketfleet sells a “folding pet stairs” product under the brand names “Lux by Frontpet” or “Frontpet.” (Countercl. at 7). On November 21, 2016, Marketfleet received a letter from PetEdge alleging that Marketfleet was infringing the '236 patent. (Id. ¶ 19). The letter contained a side-by-side comparison of PetEdge's Renew Rampsteps and one of Marketfleet's folding pet-stairs products. (Id. ¶ 21). According to Marketfleet, the letter induced it to believe that PetEdge's “Renew Rampsteps” product was patented, although in fact it was not. (Id. ¶ 19). Furthermore, the letter was allegedly crafted in a way to induce Marketfleet to believe that patent infringement is determined by the similarity of products, and not whether a product reads upon the claims of a patent. (Id. ¶ 20).

         On December 20, 2016, PetEdge filed a complaint alleging that Marketfleet is infringing on the '236 Patent. On March 2, 2017, Marketfleet filed an answer and counterclaim. The counterclaim seeks a declaration of non-infringement and invalidity, and alleges a claim for false marking. In addition, the answer alleges fourteen affirmative defenses.

         PetEdge has moved to dismiss the counterclaim under Fed.R.Civ.P. 12(b)(6) and to strike certain affirmative defenses under Fed.R.Civ.P. 12(f).

         II. Motion to Dismiss

         A. Standard of Review

         On a motion to dismiss for failure to state a claim made pursuant to Fed.R.Civ.P. 12(b)(6), the Court “must assume the truth of all well-plead[ed] facts and give the [counterclaimant] the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the counterclaim must state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the [counterclaim] are true (even if doubtful in fact).” Id. at 555 (citations omitted). Dismissal is appropriate if the counterclaim fails to set forth “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

         Under Fed.R.Civ.P. 9(b), the standard for allegations of fraud and fraud-based claims is higher than the normal pleading standard. To survive a motion to dismiss, a counterclaim alleging fraud must “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b).[1] To satisfy the requirements of Rule 9(b), a pleading must identify “the specific who, what, when, where, and how” of the allegedly false or fraudulent representation. Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009). In addition, although Rule 9(b) requires that “intent, knowledge, and other conditions of a person's mind may be alleged generally, ” to survive ...


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