Reconsideration of dismissal of false marking cases is denied
Brinkmeier v. Bic Corporation et al., Civ. No. 09-860-SLR; Brinkmeier v. Bayer Healthcare LLC, Civ. No. 10-01-SLR, June 15, 2011.
Robinson, J. Plaintiff’s motion to reconsider dismissal of false marking claims is denied.
On November 13, 2009 and on January 3, 2010, plaintiff initiated false marking cases against defendants, BIC Corporation and BIC USA Inc., and Bayer Healthcare LLC, respectively. The defendants each moved for dismissal asserting plaintiff’s failure to properly plead fraud with particularity, as required by Fed. R. Civ. P. 9(b). The motions were granted in a consolidated opinion and plaintiff moved for reconsideration arguing, inter alia, a failure to analyze the Federal Circuit’s standard set forth in Pequignot v. Solo Cup Company, 608 F.3d 1356 (Fed. Cir. 2010). The motion for reconsideration was denied. The Federal Circuit’s unanimous decision after Solo Cup in In re BP Lubricants USA, Inc., 637 F.3d 1307 (Fed. Cir. 2011), “resolved the split among district courts and held that Rule 9(b)’s particularity requirement applies to false marking claims.” Plaintiff failed to proffer a factual basis in support of its false marking allegations.
