McZeal v. Sprint Nextel Corp., No. 2006-1548.

• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
• Writing for the Court: Archer
• Citation: 501 F.3d 1354
• Parties: Alfred McZEAL, Jr. (doing business as International Walkie Talkie), Plaintiff-Appellant, v. SPRINT NEXTEL CORPORATION and Nextel Communications, Inc., Defendants-Appellees.
• Docket Number: No. 2006-1548.
• Decision Date: 14 September 2007

501 F.3d 1354 Alfred McZEAL, Jr. (doing business as International Walkie Talkie), Plaintiff-Appellant,
v.
SPRINT NEXTEL CORPORATION and Nextel Communications, Inc., Defendants-Appellees. No. 2006-1548. United States Court of Appeals, Federal Circuit. September 14, 2007.

Alfred McZeal Jr., of Houston, TX, pro se.

L. Gene Spears, Baker Botts, L.L.P., of Houston, TX, for defendants-appellees. With him on the brief was Michael B. Bennett.

[501 F.3d 1355]

Before MICHEL, Chief Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

Opinion for the court filed by Senior Circuit Judge ARCHER. Concurring-in-part and dissenting-in-part opinion filed by Circuit Judge DYK.

ARCHER, Senior Circuit Judge.

Alfred McZeal, Jr. ("McZeal") appeals the judgment of the United States District Court for the Southern District of Texas dismissing his complaint for failure to state a claim. McZeal v. Sprint Nextel Corp., No. H-06-1775, 2006 WL 4792779 (S.D.Tex. June 20, 2006). Because McZeal met the minimal pleading requirements for his patent and trademark infringement claims, we vacate the district court's dismissal of his complaint and remand for further proceedings.

I

McZeal sued Sprint Nextel Corporation and Nextel Communications, Inc. (collectively "Sprint Nextel") alleging, inter alia, patent and trademark infringement.¹ The complaint in this case is ninety-five pages long, not including additional exhibits, and alleges twenty-four counts. At issue here is McZeal's allegation that Sprint Nextel infringes his service mark INTERNATIONAL WALKIE TALKIE®.² He similarly contends that Sprint Nextel infringes U.S. Patent No. 6,763,226 ("the '226 patent") through the use of the Motorola i930 cellular telephone.³ As a part of his complaint, McZeal filed a motion for a temporary restraining order, a preliminary injunction, a permanent injunction, and a request for an expedited hearing.

In response to McZeal's request for "an immediate hearing on the motion for injunctive relief requested in this complaint," Compl. at 5, the trial court conducted a hearing shortly after the complaint was filed. During the hearing, the trial court inquired as to the exact nature of McZeal's claims and questioned him regarding the nature of other lawsuits McZeal had filed. Following the district court's prompting, Sprint Nextel orally moved to dismiss for failure to state a claim. The court concluded that McZeal's complaint failed to state a claim and subsequently denied McZeal's request to amend the complaint because the complaint "is irreparable because the facts— there are no missing facts. There just aren't any facts."

McZeal appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

II

A motion to dismiss for failure to state a claim upon which relief can be granted is a

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purely procedural question not pertaining to patent law. Thus, on review we apply the law of the regional circuit. C & F Packing Co., Inc. v. IBP, Inc., 224 F.3d 1296, 1306 (Fed.Cir.2000). In the Fifth Circuit, a decision under Fed.R.Civ.P. 12(b)(6) to dismiss a complaint for failure to state a claim is reviewed de novo. United States v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir.2003). "[T]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief." Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.2002). "Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim which would entitle him to relief." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.2002).

Where, as here, a party appeared pro se before the trial court, the reviewing court may grant the pro se litigant leeway on procedural matters, such as pleading requirements. Indeed, the Supreme Court has recognized this less demanding standard. In Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), the Court concluded that the pleadings of pro se litigants should be held to a lesser standard than those drafted by lawyers when determining whether the complaint should be dismissed for failure to state a claim, because "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims." Id. at 9, 101 S.Ct. 173; see also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding a pro se complaint to "less stringent standards than formal pleadings drafted by lawyers" when determining whether to dismiss the complaint for failure to state a claim). The Fifth Circuit echoes this standard, noting that it is well established that "pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers." Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). "However, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, `conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Taylor, 296 F.3d at 378 (internal citations omitted).

The Supreme Court has explained what is necessary for a claimant to state a claim:

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."

Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) ("Bell Atlantic")⁴; see also Fed.R.Civ.P. Form 16 (2006) (setting forth a sample complaint for patent infringement that includes

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only the following elements: 1) an allegation of jurisdiction; 2) a statement that the plaintiff owns the patent; 3) a statement that defendant has been infringing the patent "by making, selling, and using [the device] embodying the patent"; 4) a statement that the plaintiff has given the defendant notice of its infringement; and 5) a demand for an injunction and damages); Conley, 355 U.S. at 47, 78 S.Ct. 99 (stating that "[the] illustrative forms appended to the Rules plainly demonstrate [the pleading requirements]"). It logically follows that a patentee need only plead facts sufficient to place the alleged infringer on notice as to what he must defend. See Bell Atlantic, 127 S.Ct. at 1971 n. 10 (stating "[a] defendant wishing to prepare an answer in the simple fact pattern laid out in Form 9 [in the Federal Rules of Civil Procedure] would know what to answer; a defendant seeking to respond to plaintiffs' conclusory allegations . . . would have little idea where to begin."). Thus, a plaintiff in a patent infringement suit is not required to specifically include each element of the claims of the asserted patent. See, e.g., Phonometrics, Inc. v. Hospitality Franchise Sys., Inc., 203 F.3d 790, 794 (Fed.Cir.2000). Here, McZeal asserted ownership of the '226 patent, Compl. at 13; named Sprint Nextel as defendants, Compl. at 15-16; cited the '226 patent as allegedly infringed, Compl. at 14; described the means by which Sprint Nextel allegedly infringes ("[t]he defendant's INTERNATIONAL WALKIE TALKIE machine physically have [sic] or perform all of the basic elements contained in the patent claims of the plaintiff and further infringes under the doctrine of equivalents,") Compl. at 14, 56; and pointed to the specific parts of the patent law invoked ("35 U.S.C. § 271," Compl. at 5). More specifically, McZeal's complaint alleges that the "[Motorola i930] manufactured and distributed by the defendants, which claims to be an `International Walkie Talkie Machine' and which purports to provide `INTERNTAIONAL WALKIE TALKIE®' service or global wireless Voice Over Internet Protocol (VoIP) communications" infringes his patent. Compl. at 14. McZeal further asserts:

The technology cell phone product line called Motorola i930 "INTERNATIONAL WALKIE TALKIE" offered by the defendants, falls within the scope of one or more claims of the patented World Wide Walkie Talkie/International Walkie Talkie invention. Plaintiff further asserts herein that the infringing MOTOROLA i930 and line of wireless VoIP products are logically equivalent, performs [sic] in essence the same utility as the plaintiff's WORLDWIDE WALKIE TALKIE®/INTERNATIONAL WALKIE TALKIE® invention and infringes [sic] on the plaintiff's issued patent. . . .

Compl. at 28.⁵ Accordingly, McZeal's complaint contains enough detail to allow the defendants to answer and thus meets the notice pleading required to survive a Rule 12(b)(6) motion. See Conley, 355 U.S. at 47-48, 78 S.Ct. 99; Phonometrics, 203 F.3d at 794. Nothing more is required.

During the hearing, the trial court noted that McZeal had "conceded that [he] didn't know what device, what mechanism or what means Nextel uses to transmit and

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connect its telephone customers to the rest of the world." At this stage in the litigation, all McZeal has access to is Sprint Nextel's public statements and advertisements. From this information he has fashioned his complaint. In this case, the specifics of how Sprint Nextel's purportedly infringing device works is something to be determined through discovery.

Turning to the claim of trademark infringement, a plaintiff must plead that a defendant uses a designation in interstate commerce and in connection with goods or services where the designation is likely to cause confusion, mistake, or deception as to the affiliation, connection, or association of the defendant with another person, and the plaintiff has been or is likely to be damaged by these acts. 5 McCarthy On Trademarks, § 27:13 (2006). McZeal has alleged that Sprint Nextel uses and advertises INTERNATIONAL WALKIE TALKIE ("the same mark as the plaintiff," Compl. at 27), for "identical telecom services and products, which...