Swipe Innovations v. Elavon, et al., 9:12cv40 (E.D. Tex. 7/31/12)
Judge: Ron Clark
Holding: Motion to Dismiss Indirect Infringement Claims GRANTED
One of the defendants in this case, First Data Corporation, filed a motion to dismiss the plaintiff's indirect infringement claims against it under Twombly/Iqbal. The plaintiff did not respond (and in fact amended its complaint to delete the allegations of indirect infringement), and while Judge Clark noted that a party failing to respond to a motion is presumed not to oppose it under Local Rule CV-7(d), he nonetheless addressed the issue on its merits.
"Swipe Innovations’s March 7, 2012 Original Complaint includes precisely one sentence regarding indirect infringement as to First Data," Judge Clark noted. It read “In addition, First Data induced infringement and/or contributed to the infringement of one or more of the claims of the [‘]296 patent by its customers and/or suppliers.” Doc. # 1 at ¶ 21. This sentence was deleted from Swipe Innovations’s July 20, 2012 Amended Complaint. Doc. # 98 at ¶ 21. As the Amended Complaint was filed after First Data’s motion to dismiss, "the court can only conclude that this sentence was deliberately deleted in response to First Data’s motion." Thus, "[g]iven the standard on a Rule 12(b)(6) motion to dismiss, and the fact that Swipe Innovation’s most recent pleading contains no allegations of indirect infringement whatsoever as to any Defendant, the court grants First Data’s motion. Swipe Innovations’s claims of indirect infringement against First Data, to the extent any such claims are actually being asserted, are dismissed."