Peiczenik v. Bayer Corp.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GEORGE PIECZENIK,
Plaintiff-Appellant,
v.
BAYER CORPORATION, BAYER CROPSCIENCE
(NEW JERSEY) INC.,
BAYER HEALTHCARE PHARMACEUTICALS, INC.,
BAYER PHARMA CHEMICALS INC., AND
SCHERING BERLIN INC.,
Defendants-Appellees,
and
ASTRAZENECA LP, ASTRAZENECA
PHARMACEUTICALS LP,
AVENTIS INC., AVENTIS PHARMACEUTICALS
INC.,
BOEHRINGER INGELHEIM VETMEDICA, INC.,
BOEHRINGER INGELHEIMROXANE, INC.,
MEDIMMUNE LLC,
NOVARTIS CORPORATION, NOVARITS
PHARMACEUTICAL, CORPORATION, NOVARTIS
VACCINES AND DIAGNOSTICS, INC., SANOFI-
AVENTIS U.S. INC., SANOFI-AVENTIS U.S. LLC,
SIEMENS CORPORATION,
SIEMENS DIAGNOTICS FINANCE CO. LLC,
SIEMENS HEALTHCARE DIAGNOSTICS INC.,
AND SIEMENS MEDICAL SOLUTIONS USA, INC.,
Defendants-Appellees,
PIECZENIK v. BAYER CORP 2
and
ABBOTT LABORATORIES, ABBOTT
LABORATORIES, INC.,
AND SOLVAY PHARMACEUTICALS, INC.,
Defendants-Appellees,
and
ALLERGAN USA, INC., CORNING
INCORPORATED,
GILEAD SCIENCES, INC., HOWARD HUGHES
MEDICAL INSTITUTE,
AND QIAGEN INCORPORATED,
Defendants-Appellees,
and
AMGEN USA, INC AND AMGEN, INC.,
Defendants-Appellees,
and
ANTYRA, INC.,
Defendant,
and
BAXTER DIAGNOSTICS INC., MONSANTO AG
PRODUCTS LLC,
MONSANTO COMPANY, ONYX
PHARMACEUTICALS, INC.,
ZYMOGENETICS, INC., AND ZYMOGENETICS,
LLC,
Defendants-Appellees,
and
BIOGEN IDEC INC., BIOGEN IDEC U.S.
CORPORATION,
3 PIECZENIK v. BAYER CORP
AND MEDAREX, INC.
Defendants-Appellees,
and
BRACCO DIAGNOSTICS INC.,
Defendant-Appellee,
and
CENTOCOR ORTHO BIOTECH PRODUCTS, L.P.,
CENTOCOR ORTHO BIOTECH SERVICES,
CENTOCOR ORTHO BIOTECH, INC., JOHNSON &
JOHNSON, ORTHO-MCNEIL JANSSEN
SCIENTIFIC AFFAIRS, LLC, ORTHO-MCNEIL
PHARMACEUTICAL, INC., AND ORTHO-MCNEIL,
INC.,
Defendants-Appellees,
and
DYAX CORPORATION, FOREST LABORATORIES,
INC.,
GENZYME CORPORATION, GLAXOSMITHKLINE
LLC,
AND PERKINELMER HEALTH SCIENCES, INC.,
Defendants-Appellees,
and
E.I. DUPONT DE NEMOURS & COMPANY,
Defendant-Appellee,
and
GE HEALTHCARE BIOSCIENCES BIOPROCESS
CORP., GE HEALTHCARE INC., GE HEALTHCARE
STRATEGIC SOURCING CORPORATION,
AND GE HEALTHCARE BIOSCIENCES CORP.,
PIECZENIK v. BAYER CORP 4
Defendants-Appellees,
and
INTERNATIONAL BUSINESS MACHINES CORP.,
Defendant-Appellee,
and
INVITROGEN CORPORATION,
Defendant-Appellee,
and
NOVO NORDISK INC.,
Defendant-Appellee,
and
SOLVAY CHEMICALS, INC.,
Defendant-Appellee,
and
THE DOW AGROSCIENCES LLC,
THE DOW CHEMICAL COMPANY (DELAWARE),
AND THE DOW CORNING CORPORATION,
Defendants-Appellees,
and
BAYER PHARMACEUTICALS CORPORATION,
DIVERSA CHEMICAL TECHNOLOGIES (NY), INC.,
AND
JOHN DOES 1 THROUGH 61,
Defendants.
__________________________
2011-1385
__________________________
5 PIECZENIK v. BAYER CORP
Appeal from the United States District Court for the
District of New Jersey in Case No. 10-CV-2230, Judge Joel
A. Pisano.
___________________________
Decided: March 22, 2012
___________________________
GEORGE PIECZENIK, of Stockton, New Jersey, pro se.
LIZA M. WALSH, Connell Foley, LLP, of Roseland, New
Jersey for defendants appellees Abbott Laboratories et al.,
with the exception of Monsanto Ag Products LLC; Monsanto
Company; Biogen Idec Inc. and Biogen Idec U.S. Corpora-
tion. With her on the brief was RUKHSANAH L. LIGHARI. Of
counsel on the brief were CHRISTOPHER J. HARNETT, JAMES
F. HALEY and PABLO D. HENDLER, of Ropes & Gray LLP, of
New York, New York.
PAUL ANDRE, King & Spalding LLP, of Redwood Shores,
California for defendants-appellees Onyx Pharmaceuticals,
Inc. et al.
MATTHEW D. MURPHEY, Troutman Sanders LLP, of San
Diego, California for defendant-appellee Invitrogen Corpora-
tion. Of counsel on the brief was RIP FINST, Life Technolo-
gies Corp., of Carlsbad, California.
__________________________
Before NEWMAN, MAYER, AND PLAGER, Circuit Judges.
NEWMAN, Circuit Judge.
The United States District Court for the District of New
Jersey dismissed with prejudice the complaint filed by Dr.
George Pieczenik, on the ground that he failed to state a
PIECZENIK v. BAYER CORP 6
claim on which relief could be granted, Fed. R. Civ. P.
12(b)(6). Dr. Pieczenik appeals that dismissal. He also
appeals the dismissal of his charge of copyright infringe-
ment by the defendants’ quotation from his classroom
lecture; he appeals the denial of his request for compulsory
mediation; and he appeals Judge Pisano’s denial of the
request that Judge Pisano recuse from this case. On review,
we affirm the district court’s judgment and rulings.
BACKGROUND
Dr. Pieczenik is the inventor and owner of United States
Patent No. 5,866,363 (the ’363 patent) entitled “Method and
Means for Sorting and Identifying Biological Information.”
Proceeding pro se, Dr. Pieczenik initiated this suit by filing
four separate complaints in the United States District Court
for the District of New Jersey, against a total of eighty-eight
defendants. He alleged that more than one hundred named
and unnamed parties infringe one or more claims of the ’363
patent, and that some defendants also violate the Racketeer
Influenced and Corrupt Organizations (RICO) statute.
Several defendants filed motions to dismiss. While those
motions were pending, the district court sua sponte dis-
missed without prejudice Dr. Pieczenik’s four complaints for
failure to meet the minimum pleading requirements of the
Federal Rules of Civil Procedure. The district court pro-
vided Dr. Pieczenik with an opportunity to correct the
defects by filing a single consolidated complaint that met
the requirements of the Federal Rules.
Dr. Pieczenik then filed a consolidated amended com-
plaint. All eighty-eight defendants moved to dismiss the
complaint for failure to meet the requirements of Rule
12(b)(6) in accordance with the standards explained in Bell
Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). The district
7 PIECZENIK v. BAYER CORP
court granted the motion, stating that “Plaintiff has failed to
state a plausible claim of infringement against any Defen-
dant.” Op. 12. The court dismissed the infringement claims
in their entirety, and also dismissed the RICO claims,
stating that Dr. Pieczenik failed to “allege any statutorily-
defined racketeering activities or a pattern of the same,”
and that he did not have standing to bring a RICO action.
Op. 15.
The procedural criteria of dismissal under Rule 12(b)(6)
are reviewed in accordance with the procedural law of the
relevant regional circuit, here the Third Circuit, with Su-
preme Court guidance as appropriate. See CoreBrace LLC
v. Star Seismic LLC, 566 F.3d 1069, 1072 (Fed.Cir.2009)
(“The question whether a Rule 12(b)(6) motion was properly
granted is a purely procedural question not pertaining to
patent law, to which this court applies the rule of the re-
gional [ ] circuit.”) (internal quotation omitted). To with-
stand dismissal under Rule 12(b)(6) the plaintiff has an
“obligation to provide the grounds of his entitlement to
relief.” Twombly, 550 U.S. at 555. This obligation “requires
more than labels and conclusions. . . . Factual allegations
must be enough to raise a right to relief above the specula-
tive level on the assumption that all the allegations in the
complaint are true.” Id. (internal citations omitted). Dis-
missal is appropriate “only if, accepting all factual allega-
tions as true and construing the complaint in the light most
favorable to the plaintiff, we determine that the plaintiff is
not entitled to relief under any reasonable reading of the
complaint.” McGovern v. City of Phila., 554 F.3d 114, 115
(3d Cir. 2009).
In general, pro se litigants are held to a lesser standard
than pleadings drafted by lawyers when determining
whether a complaint should be dismissed for failure to state
a claim. Hughes v. Rowe, 449 U.S. 5, 9–10 (1980). However,
PIECZENIK v. BAYER CORP 8
“a complaint must contain sufficient factual matter, ac-
cepted as true, to state a claim to relief that is plausible on
its face.” Iqbal, 129 S.Ct. at 1949 (internal quotation marks
omitted).
I
THE INFRINGEMENT COUNTS
The district court held that Dr. Pieczenik’s amended
complaint did not allege facts sufficient to support his claim
for infringement of the ’363 patent. Dr. Pieczenik states
that the ’363 patent covers “random nucleotide libraries . . .
[and] monoclonal and polyclonal libraries.” Pieczenik Am.
Compl. 13. The complaint states that the ’363 patent is
infringed by defendant Invitrogen’s sale of “vectors for the
display of combinatorial libraries” and “DynaBeads for
Phage Display and BioPanning,” id. at 40; and by the pur-
chase of combinatorial libraries produced by New England
Biolabs by forty-one named defendants, namely: Abbott
Laboratories, Abbott Laboratories, Inc., Amgen Inc., Amgen
USA, Inc., AstraZeneca LP, AstraZeneca Pharmaceuticals
LP, Baxter Diagnostics, Inc. (now Baxter Healthcare Corp.),
Bayer Cropscience Inc., Biogen Idec Inc., Biogen Idec U.S.
Corp., Boehringer Ingelheim Vetmedica, Inc., Boehringer
Ingelheim Roxane, Inc., Bracco Diagnostics, Inc., Canon,
U.S.A., Centocor Ortho Biotech Products, L.P., Centocor
Ortho Biotech Services, LLC, Centocor Ortho Biotech, Inc.,
Daiichi Sankyo, Inc., E.I. du Pont de Nemours & Co., Dyax
Corp., GE Healthcare Biosciences Bioprocess Corp., GE
Healthcare Bio-Sciences Corp., GE Healthcare Inc., GE
Healthcare Strategic Sourcing Corp., GlaxoSmithKline LLC,
Howard Hughes Medical Institute, IDEXX Reference Labo-
ratories, Inc., Invitrogen Corp., Millennium Pharmaceuti-
cals, Inc., Monsanto Ag Products LLC, Monsanto Co.,
Novartis Corp., Novartis Pharmaceutical Corp., Novartis
9 PIECZENIK v. BAYER CORP
Vaccines and Diagnostics, Inc., OSI Pharmaceuticals, Inc.,
Shionogi Pharma Sales, Inc., Shionogi Pharma, Inc., Shio-
nogi USA Holdings, Inc., Shionogi USA, Inc., Syngenta Crop
Protection, Inc., and Syngenta Seeds, Inc. The complaint
does not identify any infringing product or process that is or
was made, used or sold by any of the remaining defendants.
The district court determined that Dr. Pieczenik did not
identify infringing activity by any defendant in connection
with the New England Biolabs libraries. The complaint
states that these defendants purchased “combinatorial
peptide phage display libraries” sold by New England Bio-
labs, but does not state how these libraries and their pur-
chase infringe the ’363 patent. Pieczenik Am. Compl. 15.
The district court correctly held that the minimal pleading
requirements of patent infringement were not met For
Invitrogen, the district court observed that the complaint
does not recite facts sufficient to show that Invitrogen’s
product is a “library” covered by the ’363 patent. The dis-
trict court held that Dr. Pieczenik’s complaint did not meet
the minimum pleading standards. Dr. Pieczenik argues
that the district court erred in dismissing his counts of
patent infringement. As “evidence of infringement,” he
states: “The fact that amino acid sequence SER-VAL-SER-
VAL-GLY-MET-LYS-PRO-SER-PRO-ARG-PRO was iso-
lated and made by several defendants came out of the
combinatorial library claimed in Plaintiff-Appellant’s ‘363
patent.” Pieczenik Br. 1. He does not discuss the criteria of
patent infringement or identify which of the named defen-
dants isolated or made the asserted sequence. Instead, Dr.
Pieczenik argues that because the ’363 patent has a “§102(e)
filing date of August 28, 1985” and a “document disclosure
filing of 1983,” “the court can only use rulings that are prior
to 1983 or 1985 at the latest to determine any gatekeeping
functions in determining sufficient evidence to commence a
patent infringement action.” Id. This reasoning is obscure,
PIECZENIK v. BAYER CORP 10
for the Federal Rules have consistently required the plain-
tiff to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests,” Conley v. Gibson, 355
U.S. 41, 47 (1957). If such grounds do not exist or are not
fairly noticed in the complaint, the complaint will be dis-
missed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (“To prevent dismissal, all civil complaints
must now set out ‘sufficient factual matter’ to show that the
claim is facially plausible.”). No error has been shown in
the district court’s rulings as to the inadequacy of the com-
plaint’s recitation of the basis for the charges that any or all
of the forty-one listed defendants infringed the ’323 patent
by purchasing libraries from NEB; that Invitrogen infringed
the ’323 patent through its sale of vectors for the display of
combinatorial libraries and DynaBeads; or that any other
defendant infringed the ’323 patent by making, using, or
selling any other product or process covered by the patent’s
claims.
II
THE RACKETEERING COUNTS
The district court held that Dr. Pieczenik did not allege
any law or fact sufficient to support a racketeering count
against any defendant. The complaint did not specify how
the RICO statute was violated by any defendant, as re-
quired by 18 U.S.C. §1962, and did not allege any injury as
a result of any defendant’s alleged RICO violation. See
Maio v. Aetna, Inc., 221 F.3d 472, 483 (3d Cir. 2000) (“[A]
RICO plaintiff [must] make two related but analytically
distinct threshold showings . . . : (1) that the plaintiff suf-
fered an injury to business or property; and (2) that the
plaintiff’s injury was proximately caused by the defendant’s
violation of 18 U.S.C. §1962.”). We affirm the district court’s
ruling that the complaint did not meet the minimum plead-
11 PIECZENIK v. BAYER CORP
ing requirements for violation of the RICO statute, as to any
defendant.
III
MOTIONS
A. Recusal
Dr. Pieczenik appeals from Judge Pisano’s denial of his
motion for recusal. Dr. Pieczenik recited seven grounds for
recusal: (1) the possibility that Judge Pisano holds shares in
any of the defendant public companies; (2) Judge Pisano’s
alleged favoritism toward opposing counsel; (3) Judge Pis-
ano’s denial of requested discovery; (4) Judge Pisano’s
failure to hold a Markman hearing; (5) Judge Pisano’s
“hidden agenda” as evidenced by consolidation of the four
original actions into a single action; (6) Judge Pisano’s
failure to remove Milbank Tweed Hadley McCloy LLP as
pro hac vice counsel in this matter; and (7) Judge Pisano’s
prejudices against pro se litigants, against Jewish litigants,
against “scientists acting as lawyers,” against inventors who
litigate their patents, and against science generally. Dr.
Pieczenik also objected to the court’s remark at the hearing
that Dr. Pieczenik had commenced other litigation in the
past.
The district court pointed out that Dr. Pieczenik did not
provide a factual basis for any of his accusations, and held
that there was no basis for any belief that his impartiality
might reasonably be questioned, citing 28 U.S.C. §455(a),
that there was no basis for the charge that he had a per-
sonal bias or prejudice against Dr. Pieczenik, or that he had
personal knowledge of any disputed facts concerning the
proceeding, citing 28 U.S.C. §144. Judge Pisano observed
that the motion for recusal “consists merely of speculation
PIECZENIK v. BAYER CORP 12
and unsupported assertions of bias and prejudice.” Op. 6.
We review a recusal decision for abuse of discretion. Secu-
racomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273,
278 (3d Cir. 2000); United States v. Wilensky, 757 F.2d 594,
599–600 (3d Cir. 1985).
In accordance with 28 U.S.C. §144, recusal is required
upon a “sufficient affidavit” that the judge has a personal
bias or prejudice against the party seeking recusal or in
favor of an adverse party. Dr. Pieczenik has not submitted
an affidavit, and his motion does not state any facts to
support his allegations. Dr. Pieczenik has not shown any
basis for questioning Judge Pisano’s impartiality, in view of
28 U.S.C. §455(a), or that Judge Pisano is or may be person-
ally biased or prejudiced against Dr. Pieczenik. We affirm
the district court’s denial of the recusal motion.
B. Copyright Infringement
Dr. Pieczenik filed a “Motion in Limine to Expunge
Plaintiff’s Copyrighted Lectures Proffered by Defendants’
Counsel and to Charge Them with Digital Copyright In-
fringement.” Dr. Pieczenik states that the defendants vio-
lated his copyright by quoting, in their brief, statements
made by Dr. Pieczenik during a lecture to a biochemistry
class at Rutgers University, relating to the ease and bene-
fits of pro se litigation in federal court. The defendants cited
these statements to support the argument that Dr. Piec-
zenik was familiar with suing in federal court and should
not be entitled to the more lenient pleading standards
afforded to pro se litigants.
The district court held that “the Defendants’ use of the
statements was proper and, to the extent Plaintiff holds a
copyright as to such material, Defendants did not infringe
any such copyright.” Order 1, Dec. 2, 2010. We agree that if
13 PIECZENIK v. BAYER CORP
there were a copyright of the lecture material; this was a
fair use of the quotation. The Copyright Act provides guid-
ance for determining fair use, as follows:
17 U.S.C. §107. In determining whether the use
made of a work in any particular case is a fair use
the factors to be considered shall include—
(1) the purpose and character of the use, includ-
ing whether such use is of a commercial nature or is
for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole;
and
(4) the effect of the use upon the potential mar-
ket for or value of the copyrighted work.
The fact that a work is unpublished shall not itself
bar a finding of fair use if such finding is made upon
consideration of all the above factors.
The “fairness” of a particular use is determined on a case-
by-case basis, applying an “equitable rule of reason analy-
sis.” Sony Corp. of Am. v. Universal City Studios, Inc., 464
U.S. 417, 448 (1984). Applying the statutory factors, the
defendants’ quotation from the lecture was not for commer-
cial purpose, and there is no assertion that the defendants’
use adversely affected Dr. Pieczenik’s interests in or the
value of the material. The quoted statements are of possible
relevance to this lawsuit, and the defendants’ use of this
material falls readily within the boundaries of fair use. See
Shell v. DeVries, No. 07-1086, 2007 WL 4269047 (10th Cir.
2007) (finding fair use when a party copied ten pages from
the plaintiff’s website to use in litigation).
The district court correctly held that Dr. Pieczenik had
not stated the premises of a claim for copyright infringe-
PIECZENIK v. BAYER CORP 14
ment, and that the lecture need not be expunged from the
record.
C. Compulsory Mediation
Dr. Pieczenik requested that the district court compel
mediation by each of the defendants individually, and states
that the district court erred in denying this request. In
denying the motion, the district court stated that the defen-
dants “[had] no interest in mediation, particularly given
that currently pending before the Court is a motion by
Defendants to dismiss the amended complaint.” Order 2,
Dec. 2, 2010.
Whether to compel mediation is within the district
court’s discretion, and is reviewed accordingly. See Pierce v.
Underwood, 487 U.S. 552, 559 n.1 (1988) (“It is especially
common for issues involving what can broadly be labeled
‘supervision of litigation’ . . . to be given abuse-of-discretion
review.”). An exercise of discretion will not be disturbed
“unless upon a weighing of relevant factors we are left with
a definite and firm conviction that the court below commit-
ted a clear error of judgment.” Adkins v. United States, 816
F.2d 1580, 1582 (Fed.Cir.1987) (internal quotation marks
omitted). In the posture of this litigation, the district court
did not abuse its discretion in declining to compel media-
tion.
CONCLUSION
The dismissal of the complaint under Rule 12(b)(6) is af-
firmed, as is the denial of Dr. Pieczenik’s motions for recusal
of Judge Pisano, for copyright infringement, and for compul-
sory mediation.
AFFIRMED