United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court on Defendants, Odebrecht
Construction, Inc.; Jairo Flor; Barreiro Construction Corp.;
Abele Barreiro; Barreiro Construction Materials,
Inc.; 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.
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.
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).
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).
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
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). Plaintiffs request damages
and injunctive relief for Defendants' alleged
infringement of their Patents. (See Id. 9).
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
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
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
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
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).
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) ...