The senior lawyer at the first law firm I ever worked for was Franklin Jones, Sr., (always referred to as "Senior") who had a rule for the last young lawyer he hired (sometime around 1970) which was that nobody at his firm used forms. You prepared documents from scratch. Now, that was a truism in those pre-word processing days, when regardless of the genesis of a document's language, it would be dictated by lawyers, but a recent opinion from the Eastern District underscores the importance of the careful use of form pleadings and other documents in our "cut-and-paste" world.
The threshold issue in many patent infringement cases is whether the plaintiff's complaint adequately pleads direct infringement. In the wake of the December 1, 2015 amendments to the Federal Rules of Civil Procedure, the issue has changed from whether an allegation satisfies Form 18 to whether it satisfies the standards of Twombly/Iqbal. But few cases have seen the facts - or the result - of Judge Gilstrap's recent opinion in Ruby Sands v. American National Bank, et al.
To start off, Judge Gilstrap found that the amended complaint "plainly fails to state a claim for relief that is plausible on its face" in a case where the plaintiff made no factual allegations that "even remotely" suggested that the defendant "makes, uses, offers to sell, or sells mobile devices." In the face of these allegations, the Court concluded that it could not make a plausible inference of direct infringement based on the facts pleaded in the amended complaint. "Instead," it wrote, "the Court is left to wonder whether Ruby Sands performed a thorough pre– suit investigation, as required by the Federal Rules, to craft a plausible infringement theory before filing its complaint."
Wait - it gets worse. Much worse. Can't get worse than "no plausible infringement theory" you say? Just wait.
The Court went on to observe that language was included in the amended complaint "inadvertently" from a pleading directed to a different case, which was completely unrelated to the patent in suit. The court concluded that this was the type of "cut–and–paste pleading practices" that the rule was meant to address.
Repeatedly including phrases irreconcilable with the '633 patent not only renders Ruby Sands' indirect infringement allegations implausible, but it also alerts the Court to the lack of care with which Ruby Sands drafted and filed its pleadings. That Ruby Sands amended its complaint two months after filing suit and still failed to correct this error only magnifies such carelessness. Unfortunately, this series of missteps amounts to more than mere inadvertence. This Court cannot fairly go so far as to reconcile such a glaring discrepancy with the Federal Rules' basic requirement that litigants must plead facts to plausibly support their claims for relief."
As a result, the Court dismissed the case with prejudice, without leave to replead. "This is a highly unusual case," the Court wrote, "which presents the court with a serial litigant who not only failed to plead plausible claims of direct infringement but also repeatedly filed (and failed to correct) pleadings containing indirect infringement allegations replete with extraneous language clearly lifted from some unrelated case."