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Raptor, LLC v. Odebrecht Construction, Inc.

United States District Court, S.D. Florida

August 31, 2017

RAPTOR, LLC, et al., Plaintiffs,



         THIS CAUSE came before the Court on Defendants, Odebrecht Construction, Inc.; Jairo Flor; Barreiro Construction Corp.; Abele Barreiro; Barreiro Construction Materials, Inc.[1]; and Americo Barreiro's Motion to Dismiss Plaintiffs' Amended Complaint [ECF No. 37], filed July 20, 2017. Plaintiffs, Raptor, LLC and Concrete Services, LLC, filed an Opposition (“Response”) [ECF No. 42], to which Defendants filed a Reply [ECF No. 43]. The Court has carefully considered the parties' written submissions, the record, and applicable law.

         I. BACKGROUND

         The allegations in the Amended Complaint [ECF No. 28-1] starkly resemble those in Plaintiffs' first Complaint [ECF No. 1], which the Court summarized in a June 22, 2017 Order [ECF No. 22] dismissing the Complaint without prejudice. The Court recapitulates the relevant facts here.

         Plaintiffs claim to be the owner and exclusive licensee of U.S. Patent 8, 920, 068 [ECF No. 28-2], entitled “Process for Slip Forming Reinforced Bridge Coping with Exposed Rebars” (the “System Patent”), and U.S. Patent 8, 956, 075 [ECF No. 28-3], entitled “Tunnel Mold, System and Method for Slip Forming Reinforced Concrete Structures with Exposed Rebars” (the “Tunnel Mold Patent”). (See Am. Compl. ¶¶ 3-4, 11-12).

         Odebrecht solicited Plaintiffs to submit a proposal for a “bridge railing, ” which is a composite structure made up of a bridge coping and a traffic rail, with embedded reinforcement materials or “rebars.” (Id. ¶ 20). Plaintiffs allege they met with Odebrecht on two occasions, during which they presented to Odebrecht their patented technology for slip molding a coping structure with exposed rebars. (See id.). According to Plaintiffs, their presentation included a “show [and] tell” video demonstration of their slip molding system and methodology. (Id. (alteration added)). Plaintiffs allege this video prominently featured and identified the System and Tunnel Mold Patents and emphasized the cost advantages of using the patented methods, including the potential for incentive payments from the Florida Department of Transportation and early completion of certain projects. (See Id. ¶¶ 20-21).

         Plaintiffs accuse Odebrecht of conspiring with Barreiro Construction and Barreiro Materials (together, the “Corporate Defendants”) to fabricate the patented Tunnel Molds and “wrongfully gain access to” Plaintiffs' slip forming System. (Id. ¶ 22). The Corporate Defendants allegedly “surreptitiously inspected” Plaintiffs' Tunnel Molds on an FDOT job site, arranged for a former employee to seek employment with Plaintiffs to gain access to the System and Tunnel Molds, and “duplicated the measurements and specifications” of the System and Tunnel Molds. (Id. ¶ 23). Plaintiffs assert the Corporate Defendants then utilized the patented System and Tunnel Molds in a project for the FDOT. (See Id. ¶¶ 24-25). Plaintiffs allege this “unauthorized adoption and use” allowed Odebrecht to submit to the FDOT a winning bid forecasting completion of the project 350 days earlier than the FDOT target date. (Id. ¶ 25). Early completion, if achieved, would entitle Odebrecht to a significant bonus. (See id.).

         Plaintiffs accuse the Corporate Defendants, as well as Jorge Flor, Abele Barreiro, and Americo Barreiro (the “Individual Defendants”), of “literal infringement and/or infringement under the doctrine of [equivalents]” in violation of 35 U.S.C. section 271(a). (Id. ¶¶ 26-29 (alteration added)). Plaintiffs allege Defendants infringed Claims 1, 6-9 and 14-16 of the System Patent; and Claims 2-10, 12-17, and 19-21 of the Tunnel Mold Patent. (See Am. Compl. ¶¶ 26-27). Claims 15-17 and 19-21 of the Tunnel Mold Patent are Product Claims; Claims 9 and 14-16 of the System Patent and 8-10 and 12-14 of the Tunnel Mold Patent are System Claims; and the remainder of the Patents' Claims allegedly infringed are Method Claims. (See Resp. 7-8).[2] Plaintiffs request damages and injunctive relief for Defendants' alleged infringement of their Patents. (See Id. 9).

         Plaintiffs assert the deficiencies in the Complaint identified by the Court in the June 22 Order have been “obviated” by the Amended Complaint's attachment of “detailed claim charts identifying . . . the specific claims of the two patents” alleged to be infringed and “photographs of the Defendants' infringing activity with references to the various claim limitations found on the Defendants' machinery.” (Resp. 5 (alteration added)). Defendants do not challenge the Claim Charts [ECF Nos. 28-14 & 28-15] or Photographs [ECF Nos. 28-8 through 28-12] for lack of requisite specificity as to what activity in particular infringed which elements of the Patents' Claims. (See generally Mot.).

         Defendants nonetheless request dismissal of the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, asserting the Amended Complaint is deficient because: Plaintiffs fail to allege each corporate Defendant infringed each limitation of the Patents' Claims; Plaintiffs fail to allege facts sufficient to infer joint infringement; and Plaintiffs' allegations, taken as true, do not warrant piercing of the corporate veil to impose liability on the individual Defendants. (See generally Mot.).


         Rule 8(a) requires a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although this pleading standard “does not require ‘detailed factual allegations, ' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).

         “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (alteration added) (quoting Twombly, 550 U.S. at 570). Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679 (citing Twombly, 550 U.S. at 556). To meet this plausibility standard, a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556).

         Apart from the factual allegations of the Amended Complaint, which are construed in the light most favorable to Plaintiffs, the Court also properly considers the attachments to the pleading. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205 (11th Cir. 2007) (“[E]xhibits [to the complaint] are part of the pleading ‘for all purposes' . . . ‘including a Rule 12(b)(6) motion.'” (alterations added) ...

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