Artrip v. Ball Corporation ( 2018 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JERRY ARTRIP,
Plaintiff-Appellant
v.
BALL CORPORATION, BALL METAL BEVERAGE
CONTAINER CORPPRATION, ALCOA, INC.,
Defendants-Appellees
______________________
2018-1277
______________________
Appeal from the United States District Court for the
Western District of Virginia in No. 1:14-cv-00014-JPJ-
PMS, Judge James P. Jones.
______________________
Decided: May 23, 2018
______________________
JERRY ARTRIP, Bluff City, TN, pro se.
JOHN DAVID LUKEN, Dinsmore & Shohl LLP, Cincin-
nati, OH, for defendants-appellees Ball Corporation, Ball
Metal Beverage Container Corporation.
MARK MICHAEL SUPKO, Crowell & Moring, LLP,
Washington, DC, for defendant-appellee Alcoa, Inc. Also
represented by MARK A. KLAPOW.
2 ARTRIP v. BALL CORP.
______________________
Before DYK, O’MALLEY, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Jerry Artrip appeals the district court’s dismissal of
his case. Mr. Artrip asks us to reverse the district court
and remand so that he may file a fourth amended com-
plaint charging Appellees Alcoa, Inc. (“Alcoa”), Ball Corp.,
and Ball Metal Beverage Container Corp. (together,
“Ball”) with patent infringement.
We lack jurisdiction to review the dismissal of Mr. Ar-
trip’s claims against Alcoa. And because we find that
Mr. Artrip’s third amended complaint does not satisfy the
legal pleading standard and that the district court did not
abuse its discretion in denying leave for further amend-
ments, we affirm the district court’s dismissal of
Mr. Artrip’s claims against Ball with prejudice.
BACKGROUND
In 1996, Donald Artrip, Mr. Artrip’s son, obtained
U.S. Patent No. 5,511,920, covering a press assembly and
method for forming the lift-tab can ends used for opening
beverage cans. Donald Artrip continued his work on lift-
tab can end production techniques until his death in 2007,
and obtained an additional seven patents for improve-
ments related to this technology: U.S. Patent
Nos. 5,660,516, 6,022,179, 7,063,492, 7,234,907,
7,237,998, 7,237,999, and 7,344,347. The patented as-
semblies and systems changed the lift-tab can end assem-
bly process and eliminated the need for a human tab
press operator to turn and move the tabs between ma-
chines.
ARTRIP v. BALL CORP. 3
In 2014, Mr. Artrip, the patents’ assignee, filed a pro
se complaint accusing Alcoa and Ball 1 of infringing the
’347 patent. A few months later, after obtaining counsel,
Mr. Artrip filed a first amended complaint asserting that
Alcoa indirectly infringed and Ball directly infringed all
eight of the Artrip patents. In early 2015, Mr. Artrip filed
a second amended complaint modifying these allegations.
The second amended complaint accused Alcoa and
Ball of infringing the ’179, ’492, ’907, ’998, ’999, and
’347 patents. For each of the patents, the complaint
alleged that Alcoa induced infringement because it sup-
plied material, particularly “food grade coiled aluminum
sheets with special coating” in knowing aid of direct
infringement of the patents. J.A. 272–78, ¶¶ 5, 8, 11, 14,
17, 20. And it alleged that Alcoa contributorily infringed
because the aluminum met “required specifications for
said invention” and “constitut[ed] a material part of the
invention,” and Alcoa knew the aluminum “to be especial-
ly made or especially adapted for use in an infringement.”
Id. The complaint further alleged that the Alcoa alumi-
num was not a staple article or commodity suitable for
substantial noninfringing use. And the complaint stated
that Ball directly infringed the patent by using a system
“that embodies the patented invention.” J.A. 272–77,
¶¶ 4, 7, 10, 13, 16, 19.
Alcoa and Ball each moved to dismiss the second
amended complaint for failure to state a claim on which
relief could be granted, and the district court granted the
motions. Applying the plausibility standard set forth by
1 This complaint identified different Alcoa and Ball
entities than those here on appeal. By the second amend-
ed complaint, however, the parties had been finally identi-
fied as Mr. Artrip and the Appellees. For simplicity, we
do not distinguish between the earlier and later entities
here.
4 ARTRIP v. BALL CORP.
the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007), the district court first concluded that
Mr. Artrip’s claims for direct infringement were insuffi-
cient because they did not identify the infringing Ball
equipment or explain how Ball’s use of that equipment
infringes any claim. The court determined that it “would
be unjust to permit [Mr.] Artrip to move forward with a
complaint that does not alert Ball as to what it has done
wrong.” Artrip v. Ball Corp., No. 1:14-cv-00014-JPJ-PMS,
2017 WL 3669518, at *4 (W.D. Va. Aug. 24, 2017). Never-
theless, because Mr. Artrip’s second amended complaint
had been filed before the Iqbal/Twombly plausibility
standard clearly applied to direct infringement claims,
the district court dismissed Mr. Artrip’s claims against
Ball without prejudice. In doing so, it instructed
Mr. Artrip that any amended complaint “must comply
with the pleading requirements of Rule 8(a), Twombly,
and Iqbal. In particular, it must plead specific facts
supporting [Mr.] Artrip’s claims.” Id. at *5.
The district court determined that Mr. Artrip’s indi-
rect infringement claims were also deficient. It found that
the second amended complaint did not plausibly allege
facts supporting an inference that Alcoa knew of the
patents, a prerequisite for indirect infringement claims.
Relatedly, the district court found that the complaint did
not allege facts supporting an inference that Alcoa specifi-
cally intended to aid any direct infringement (as required
for induced infringement) or knew its aluminum was
made to be used in infringement (as required for contribu-
tory infringement). It also found that Mr. Artrip’s second
amended complaint did not show that the aluminum
sheets allegedly supplied by Alcoa were not staple articles
of commerce suitable for noninfringing use. Because the
Iqbal/Twombly plausibility standard applied to
Mr. Artrip’s indirect infringement claims when the second
amended complaint was filed, the district court dismissed
ARTRIP v. BALL CORP. 5
Mr. Artrip’s claims against Alcoa with prejudice, denied
further leave to amend as to Alcoa, and ordered the clerk
to terminate Alcoa from the case.
A few weeks later, Mr. Artrip filed his third amended
complaint. In that complaint, he alleged that Ball directly
infringed five of the patents—the ’492, ’907, ’998, ’999,
and ’347 patents. The complaint stated that “one or more
of the machines at least at the Bristol Plant” infringed the
patents because those machines were for forming and
attaching lift-tabs to can ends and included each element
of the independent claims. J.A. 324–35, ¶¶ 9, 11, 13, 15,
17. In addition, the complaint identified Ball facilities
other than the Bristol plant and stated that on infor-
mation and belief, “one or more machines in each of Ball’s
Operating Plants infringe one or more of the Patents-in-
Suit.” J.A. 335–36, ¶¶ 19–20.
Ball again moved to dismiss, arguing that Mr. Artrip
did not state a claim on which relief could be granted.
The district court found that the third amended complaint
contained “minimal facts” and that the “conclusory”
allegation that Ball infringed the patents by using “one or
more machines” according to the claims did not meet the
pleading standard. Artrip v. Ball Corp., No. 1:14-cv-
00014-JPJ-JMS, 2017 WL 5037470, at *3 (W.D. Va.
Nov. 3, 2017). Because it found that Mr. Artrip had
“notice of the applicable pleading standard, had multiple
opportunities to meet it, and has failed to do so,” the
district court dismissed the third amended complaint with
prejudice and denied leave to amend. Id. at *4. The same
day, November 3, 2017, the court entered a final order
dismissing Mr. Artrip’s action against Ball.
Acting pro se, Mr. Artrip filed a notice of appeal, after
which his former counsel withdrew from the case. The
notice listed both Alcoa and Ball in the case caption, but it
specifically designated the district court’s November 3,
6 ARTRIP v. BALL CORP.
2017 order, which dismissed the third amended complaint
against only Ball, as the subject of the appeal.
DISCUSSION
We review the grant of a motion to dismiss for failure
to state a claim under the law of the regional circuit.
Aatrix Software, Inc. v. Green Shades Software, Inc.,
882 F.3d 1121, 1124 (Fed. Cir. 2018) (citing Content
Extraction & Transmission LLC v. Wells Fargo Bank,
Nat’l Ass’n, 776 F.3d 1343, 1346 (Fed. Cir. 2014)). The
Fourth Circuit reviews such dismissals de novo. United
States ex rel. Nathan v. Takeda Pharm. N. Am., Inc.,
707 F.3d 451, 455 (4th Cir. 2013). De novo review re-
quires an appellate court to look at the issues as though
for the first time, with no deference to the trial court. See
Appeal, Black’s Law Dictionary (10th ed. 2014) (defining
“appeal de novo” as “[a]n appeal in which the appellate
court uses the trial court’s record but reviews the evidence
and law without deference to the trial court’s rulings”).
We also review the denial of leave to amend a plead-
ing under regional circuit law. See Chi. Bd. Options
Exch., Inc. v. Int’l Sec. Exch., LLC, 677 F.3d 1361, 1374
(Fed. Cir. 2012). When a district court denies leave to
amend a complaint, the Fourth Circuit reviews that
decision for an abuse of discretion. See Anand v. Ocwen
Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014). A
court abuses its discretion “if it relies on an error of law or
a clearly erroneous factual finding.” E.E.O.C. v. Freeman,
778 F.3d 463, 466 (4th Cir. 2015).
ARTRIP v. BALL CORP. 7
I
We first consider the district court’s dismissal of
Mr. Artrip’s contributory infringement 2 claims against
Alcoa, and its denial of leave to amend.
A
As a threshold issue, Alcoa contends that we have no
jurisdiction to review the district court’s order dismissing
the second amended complaint and denying Mr. Artrip
leave to amend his complaint as to Alcoa. 3 We agree.
We have jurisdiction only if Mr. Artrip filed a timely
notice of appeal that complies with Rule 3 of the Federal
Rules of Appellate Procedure. See Smith v. Barry,
502 U.S. 244, 248–49 (1992) (“Rule 3’s dictates are juris-
dictional in nature, and their satisfaction is a prerequisite
to appellate review.”). Whether a notice of appeal meets
2 Mr. Artrip now concedes that the induced in-
fringement allegations should not have been included in
the case. Appellant’s Br. 2–3.
3 Ball does not expressly challenge jurisdiction but
states in a footnote that Mr. Artrip’s notice of appeal was
of uncertain effectiveness because he signed and filed it
pro se before his counsel formally withdrew. An improp-
erly signed notice of appeal does not impact our jurisdic-
tion. See Becker v. Montgomery, 532 U.S. 757, 766 (2001)
(finding signature on notice of appeal is required by
Federal Rule of Civil Procedure 11, “render[ing] it nonju-
risdictional”); Republican Nat’l Comm. v. Taylor, 299 F.3d
887, 890 n.1 (D.C. Cir. 2002) (declining to dismiss appeal
for technical violation of signature requirement); see also
In re First Protection, Inc., 440 B.R. 821, 827 (B.A.P.
9th Cir. 2010) (finding pro se litigant’s declared intention
to participate in appeal cured signature defect). We
therefore consider Mr. Artrip’s notice of appeal to have
been properly filed.
8 ARTRIP v. BALL CORP.
the standard imposed by Rule 3 “is a question of Federal
Circuit law.” See Minn. Mining & Mfg. Co. v. Chemque,
Inc., 303 F.3d 1294, 1308–09 (Fed. Cir. 2002).
Among other requirements, Rule 3 states that a notice
of appeal must “designate the judgment, order, or part
thereof being appealed.” Int’l Rectifier Corp. v. IXYS
Corp., 515 F.3d 1353, 1357 (Fed. Cir. 2008) (emphasis
added) (quoting Fed. R. App. P. 3(c)(1)); see also Durango
Assocs., Inc. v. Reflange, Inc., 912 F.2d 1423, 1425
(Fed. Cir. 1990) (finding party “cannot now expand the
scope of its specifically limited notice of appeal”). Our
sister circuits have found that they do not have jurisdic-
tion to review orders other than those identified in the
notice of appeal. See, e.g., Doran v. J.P. Noonan Trans.,
Inc., 853 F.3d 66, 69 (1st Cir. 2017) (finding “no basis to
reverse an order” other than order designated in notice);
In re GNC Corp., 789 F.3d 505, 512 (4th Cir. 2015) (dis-
missing appeal as to order not identified in notice); Ste-
phens v. Jessup, 793 F.3d 941, 943 (8th Cir. 2015) (finding
no jurisdiction to review order dismissing first party
where notice of appeal identified separate order only
dismissing second party).
Here, Mr. Artrip’s notice of appeal identifies only the
district court’s November 3, 2017 order dismissing the
third amended complaint against Ball. Alcoa is men-
tioned only in the notice’s case caption. Although we
construe notices of appeal liberally, Mr. Artrip’s notice
does not indicate an intent to appeal the district court’s
earlier order dismissing the second amended complaint
and terminating Alcoa. See Smith, 502 U.S. at 248 (per-
mitting courts to find compliance “‘with the rule if the
litigant’s action is the functional equivalent of what the
rule requires’” but explaining “[t]his principle of liberal
construction does not, however, excuse noncompliance
with the Rule. Rule 3’s dictates are jurisdictional” (quot-
ing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317
(1988))). Mr. Artrip’s letter requesting Alcoa’s addition to
ARTRIP v. BALL CORP. 9
the case caption in this appeal might indicate intent to
appeal Alcoa’s dismissal, but that letter was filed after
the deadline for appeal. “There is no doctrine that per-
mits an appellant to ‘amend’ a notice so that the time for
appealing is extended beyond the prescribed statutory
period.” Durango, 912 F.2d at 1425.
B
In any event, even if we were to construe Mr. Artrip’s
pro se notice of appeal to include all prior orders in the
case, we would affirm the district court’s dismissal of
Mr. Artrip’s contributory infringement claims and its
denial of leave to amend. See, e.g., Elliott v. City of Hart-
ford, 823 F.3d 170, 173 (2d Cir. 2016) (holding in the
Second Circuit “a pro se appellant’s appeal from an order
closing the case [constitutes] an appeal from all prior
orders”).
To survive a motion to dismiss, a plaintiff alleging
contributory infringement must plausibly allege that the
accused infringer knew of the asserted patents, see Com-
mil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926
(2015), and must “plead facts that allow an inference that
the components sold or offered for sale have no substan-
tial non-infringing uses,” In re Bill of Lading Transmis-
sion & Processing Sys. Patent Litig., 681 F.3d 1323, 1337
(Fed. Cir. 2012).
Mr. Artrip alleged that Alcoa supplies “food grade
coiled aluminum sheets with special coating, that meet
required specifications for [the patented] invention[s].”
J.A. 272–78, ¶¶ 5, 8, 11, 14, 17, 20; see also J.A. 265, ¶ 9
(alleging in declaration that aluminum sheets were
“precut” to “[d]ifferent widths and thickness”). But these
facts do not suggest that Alcoa knew of the Artrip patents
or that the aluminum Alcoa supplied could not be used
“for purposes other than infringement.” Bill of Lading,
681 F.3d at 1338. While the complaint recited that Alcoa
acted despite “knowing [the aluminum] to be especially
10 ARTRIP v. BALL CORP.
made or especially adapted for . . . infringement” and that
the aluminum is “a material part” of the claimed inven-
tion that is not a “staple article” and is not “suitable for
substantial noninfringing use,” J.A. 272–78, ¶¶ 5, 8, 11,
14, 17, 20, the second amended complaint did not plausi-
bly assert facts to suggest that Alcoa was aware of the
patents or facts to suggest that the aluminum it supplied
had no substantial noninfringing use. See Iqbal, 556 U.S.
at 678 (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). We have considered Mr. Artrip’s remaining
arguments, but we find them unpersuasive.
C
We would also affirm the district court’s denial of
leave to amend as to Alcoa.
The Federal Rules of Civil Procedure encourage courts
to freely give leave to amend when justice so requires.
See Fed. R. Civ. P. 15(a)(2). Nevertheless, where a party
repeatedly does not cure defects in its pleadings, a court
does not abuse its discretion by refusing to allow further
amendments. See Foman v. Davis, 371 U.S. 178, 182
(1962); David v. Alphin, 704 F.3d 327, 344 (4th Cir. 2013)
(finding no abuse of discretion where district court dis-
missed already amended complaint with prejudice).
Mr. Artrip’s second amended complaint was his third
complaint presented to the court and his second filed by
counsel. Alcoa had already alerted Mr. Artrip to potential
deficiencies in the contributory infringement allegations
in his first amended complaint, including a lack of ade-
quate support for his assertion that the aluminum provid-
ed by Alcoa had no substantial noninfringing use. But
Mr. Artrip was nevertheless unable to state a plausible
claim for contributory infringement in his second amend-
ed complaint. In these circumstances, we cannot say the
district court abused its discretion in denying further
leave to amend.
ARTRIP v. BALL CORP. 11
II
We now consider the dismissal of Mr. Artrip’s third
amended complaint against Ball and the court’s denial of
further leave to amend.
A
A motion to dismiss should be granted if a complaint
does not 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 (quoting Twombly, 550 U.S.
at 570). 4 To meet the 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. Merely pleading facts that
are consistent with liability or stating legal conclusions is
not sufficient. Id.
We recently applied these requirements in Disc Dis-
ease Solutions Inc. v. VGH Solutions, Inc., No. 17-1483,
2018 WL 2011468 (Fed. Cir. May 1, 2018). The plaintiff
in that case plausibly pled direct infringement by specifi-
cally identifying the infringing products and alleging
those specific products included each element of the
patented claims. Id. at *3. The complaint provided the
defendants fair notice of how they infringed—the plaintiff
had named each of the three allegedly infringing products
4 As of December 1, 2015, the plausibility standard
applies to direct infringement claims. Lifetime Indus.,
Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1376–77 (Fed. Cir.
2017). Though this case has been pending for years,
Mr. Artrip’s third amended complaint was filed on Sep-
tember 14, 2017, after the district court directed him to
comply with the plausibility standard and almost two
years after that standard clearly came into effect. We
therefore apply the plausibility standard to our review
here.
12 ARTRIP v. BALL CORP.
and had attached their photographs as exhibits to the
complaint. Id.
Here, Mr. Artrip’s third amended complaint described
the patents and the parties and alleged that Ball infringes
the ’492, ’907, ’998, ’999, and ’347 patents “by use of one or
more of the machines at least at the Bristol Plant.”
J.A. 324–34, ¶¶ 9, 11, 13, 15, 17. The third amended
complaint did not otherwise identify the accused ma-
chines, but it stated that these machines are systems for
“forming and attaching lift-tabs to can ends” that include
each element of each patent’s single independent claim,
which the complaint recited. Id. The complaint also
identified additional Ball packaging plants across the
country, and alleged that on information and belief,
machines in each of these plants similarly infringe one or
more of the asserted patents.
We agree with the district court that these allegations
are insufficient to state a plausible claim for direct in-
fringement. Even taken as true, the facts alleged in the
third amended complaint are insufficient to state a plau-
sible, rather than merely possible, claim for relief. See
Iqbal, 556 U.S. at 678. Mr. Artrip’s attorney received
access to Ball’s Bristol plant, toured the factory, and
photographed Ball’s equipment. But the third amended
complaint does not sufficiently identify, for example, by
photograph or name, any of the particular machines that
allegedly infringe other than by broad functional lan-
guage. Unlike the plaintiff in Disc Disease, Mr. Artrip did
not fairly identify the accused machines. The third
amended complaint is thus insufficient; under any plead-
ing standard, a complaint must put a defendant “on notice
as to what he must defend.” McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007); see also
Peralta v. Cal. Franchise Tax Bd., 673 F. App’x 975, 980
(Fed. Cir. 2016) (affirming dismissal of complaint contain-
ing only “[t]he boilerplate allegation that defendants
infringe”) (nonprecedential).
ARTRIP v. BALL CORP. 13
B
Finally, we consider and affirm the district court’s
denial of leave to amend the complaint as to Ball for a
fourth time.
A district court does not abuse its discretion where it
denies leave after “repeated failure to cure deficiencies by
amendments previously allowed.” Foman, 371 U.S.
at 182. When the district court dismissed the direct
infringement allegations in Mr. Artrip’s second amended
complaint, it identified particular deficiencies in that
complaint and instructed Mr. Artrip to plead specific facts
supporting his infringement allegations going forward.
As discussed above, the third amended complaint did not
do so. In these circumstances, the district court did not
abuse its discretion in denying further leave to amend.
See Glaser v. Enzo Biochem, Inc., 464 F.3d 474, 480
(4th Cir. 2006) (finding no abuse of discretion in denying
leave to amend where plaintiff has “already set forth four
iterations of their complaint”).
CONCLUSION
We have considered Mr. Artrip’s remaining argu-
ments and find them unpersuasive. Accordingly, we
affirm the decision of the district court.
AFFIRMED
COSTS
Costs to Appellees.