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Tobii AB v. Beijing 7Invensun Co., Ltd.

United States District Court, D. Nevada

June 6, 2019

TOBII AB, Plaintiff,
v.
BEIJING 7INVENSUN CO., LTD., Defendant.

          Michael J. McCue Meng Zhong Lewis Roca Rothgerber Christie LLP Michael A. Dorfman (Pro Hac Vice) Dykema Gossett PLLC Attorneys for Plaintiff Tobii AB

          PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT PURSUANT TO FED.R.CIV.P. 15(A)(2) [MOTION FOR ALTERNATIVE SERVICE AND DECLARATION OF MICHAEL A. DORFMAN FILED CONCURRENTLY HEREWITH]

          BRENDA WEKSLER, UNITED STATES MAGISTRATE JUDGE

         Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, Plaintiff Tobii AB (“Plaintiff” or “Tobii”) hereby moves the Court for entry of an order granting leave for Plaintiff to file a Second Amended Complaint.

         MEMORANDUM OF POINTS AND AUTHORITIES

         I. LEGAL STANDARD

         For a pleading not allowed as a matter of course under the Rules of Civil Procedure, a party may amend its pleadings only with the opposing party's written consent or the court's leave. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely granted when justice so requires. Courts consider four factors when evaluating a plaintiff's request to amend a complaint: (1) Bad faith; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the proposed amendment. Forman v. Davis, 371 U.S. 178, 182 (1962); Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999).

         II. STATEMENT OF FACTS

         On September 4, 2018, Plaintiff filed the present Action against Beijing 7Invensun Co., Ltd. for patent infringement. (ECF No. 1). On January 3, 2019, Plaintiff filed its Amended Complaint. (ECF No. 11). Defendant is a Chinese company located in Wangjing, Chaoyang District, Beijing, China, with no known physical location inside the United States. (Id. at ¶6.)

         On January 11, 2019, Plaintiff hired Sgt. Devin Smith LCO of the Laughlin Constable's Office to effectuate personal service on Defendant at the Consumer Electronics Show (“CES”).

         On March 29, 2019, Plaintiff filed the returned Summons. (ECF No. 14). That filing identifies that the answer was due on February 1, 2019. (Id.)

         As discussed in Plaintiff's contemporaneously filed Motion for Alternative Service (ECF No. 16), Defendant has contested the sufficiency of service at CES in January 2019. In preparing the Motion for Alternative Service, Plaintiff noticed that Defendant's name was incorrectly identified in the caption and the body of the Amended Complaint. It is believed that Defendant's proper name is “Beijing 7Invensun Technology Co., Ltd.”, not “Beijing 7Invensun Co., Ltd.” (as currently identified in the caption and pleadings).

         III. ARGUMENT

         Tobii is not requesting amendment in bad faith. The amendment is made to include a word (“Technology”) missing from the currently named defendant. In that the Defendant contends that it has not yet been properly served, no responsive pleading has been filed and no scheduling order has been entered in this case, there shall be no delay in the proceedings as a result of the amendment and no prejudice to the Defendant. Further, the amendment is not futile. The substantive allegations in the proposed Second Amended Complaint are unchanged. The amendment simply makes a correction to the name of the defendant.

         IV. RELIEF REQUESTED

         Tobii requests that the Court allow it to file the Second Amended Complaint attached as Exhibit A to its Motion pursuant to Fed.R.Civ.P. 15(a)(2).

         CONCLUSION

         For the foregoing reasons, the Court should enter an order granting Tobii leave to file its Second Amended Complaint.

         IT IS ORDERED that Plaintiff's Motion to Amend Complaint (ECF No. 17) is GRANTED.

         IT IS FURTHER ORDERED that Plaintiff shall forthwith separately file the proposed Second Amended Complaint on the docket.

         SECOND AMENDED COMPLAINT (JURY DEMAND)

         Plaintiff, Tobii AB (“Tobii”), for its Second Amended Complaint against Defendant, Beijing 7invensun Technology Co., Ltd. (“Defendant”), states as follows:

         I. JURISDICTION AND VENUE

         1. This is an action that arises for patent infringement under the patent laws of the United States, 35 U.S.C. § 1, et seq., including 35 U.S.C. §§ 271, 281, 283, 284 and 285. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1338(a).

         2. On information and belief, this Court may exercise personal jurisdiction over the Defendant based upon the Defendant's contacts with this forum, including Defendant's intentionally doing business here and having committed acts of infringement within this forum by promoting, distributing, using, offering to sell and selling products that, when used, practice Tobii's patent including at and through participation in the annual CES show in Las Vegas, Nevada.

         3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(c)(3). Defendant is a foreign defendant and may be sued in any judicial district. Specifically, it is a Chinese corporation with its principal place of business in Beijing, China. In Brunette Mach. Works., Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 706-07 (1972), the Supreme Court held that when a foreign defendant is sued in a patent infringement action, the general venue provision, 28 U.S.C. § 1391, governs.

         4. The exhibits to this Amended Complaint are:

A. U.S. Patent No. 6, 659, 611;
B. Quick Instructions for the aGlass ...

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