United States District Court, D. Nevada
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
WEKSLER, UNITED STATES MAGISTRATE JUDGE
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
OF POINTS AND AUTHORITIES
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).
STATEMENT OF FACTS
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.)
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
March 29, 2019, Plaintiff filed the returned Summons. (ECF
No. 14). That filing identifies that the answer was due on
February 1, 2019. (Id.)
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).
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.
requests that the Court allow it to file the Second Amended
Complaint attached as Exhibit A to its Motion pursuant to
foregoing reasons, the Court should enter an order granting
Tobii leave to file its Second Amended Complaint.
IS ORDERED that Plaintiff's Motion to Amend
Complaint (ECF No. 17) is GRANTED.
IS FURTHER ORDERED that Plaintiff shall forthwith
separately file the proposed Second Amended Complaint on the
AMENDED COMPLAINT (JURY DEMAND)
Tobii AB (“Tobii”), for its Second Amended
Complaint against Defendant, Beijing 7invensun Technology
Co., Ltd. (“Defendant”), states as follows:
JURISDICTION AND VENUE
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).
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.
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.
exhibits to this Amended Complaint are:
A. U.S. Patent No. 6, 659, 611;
B. Quick Instructions for the aGlass ...