Case 1:16-cv-02690-AT Document 104 Filed 07/13/16 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Civil Action No. 6:15-CV-907
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`SIPCO LLC, and
`IP CO., LLC (d/b/a INTUS IQ)
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`Plaintiffs,
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`v.
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`EMERSON ELECTRIC CO., EMERSON
`PROCESS MANAGEMENT LLLP,
`FISHER-ROSEMOUNT SYSTEMS, INC.,
`ROSEMOUNT INC., BP p.l.c., BP
`AMERICA, INC., and BP AMERICA
`PRODUCTION COMPANY
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`Defendants.
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`BP P.L.C’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS FOR
`FAILURE TO STATE A CLAIM AND FOR MISJOINDER
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`Plaintiffs’ recitals in the “Background” section of their Opposition are so pejorative and
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`wrong that, though irrelevant, demand correction. The “BP U.S. subsidiaries answered the First
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`Amended Complaint in a timely manner” because they, unlike BP p.l.c., were timely served by
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`Plaintiffs with the complaint. The Amended Complaint was filed on December 30, 2015 (Dkt.
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`19) but Plaintiffs did not serve BP p.l.c. for more than three months. (Dkt. 74 at 2). Contrary to
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`Plaintiffs’ brief, the delay was not due to the “expensive, time consuming and wasteful” Hague
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`Convention practice or BP p.l.c.’s “refusal to cooperate.” (Dkt. 97 at 2). When Plaintiffs finally
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`got around to serving the Amended Complaint on BP p.l.c., it was done easily and uneventfully
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`by handing it to BP p.l.c.’s lawyer, Ms. Joanne Cross. (Dkt. 74 at 2). What’s more, Plaintiffs’
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`delay in service to BP p.l.c. gave Plaintiffs an improper tactical advantage because it allowed
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`Plaintiffs to proceed with discovery, set a case schedule, etc. without BP p.l.c.’s involvement.
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`Case 1:16-cv-02690-AT Document 104 Filed 07/13/16 Page 2 of 6
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`Prior to serving BP p.l.c., Plaintiffs filed their allegedly “joint” discovery plan more than two
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`weeks before serving BP p.l.c.(Dkt. 60) and filed their Initial Disclosures more than two
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`weeks before serving BP p.l.c. with the Amended Complaint This Court entered ten orders,
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`regarding, inter alia, scheduling, claim limits, time limits, mediation, discovery, and discovery
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`protection—all before Plaintiffs served BP p.l.c. with the complaint. (Dkts 28, 38, 43, 55, 57,
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`59, 65, 66, 67, and 68). All delay is attributable directly to Plaintiffs.
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`A. The Complaint Does Not Adequately Plead a Theory of BP p.l.c.’s Liability.
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`Plaintiffs Opposition does not dispute BP p.l.c.’s contention that “there is nothing alleged
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`about BP p.l.c. that isn’t alleged against BP America, Inc. and/or BP America Production
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`Company, except that the latter two are ‘controlled’ by the former and are its ‘agents in Texas.’”
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`(Dkt. 87 at 3, citing Dkt. 19 at 9). The Plaintiffs posit a red herring that their use of the
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`collective term “BP” in the Amended Complaint to refer to the actions of all of the BP
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`Defendants is procedurally proper, while missing the point that the Amended Complaint
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`(whether using the term “BP p.l.c.” or the collective “BP”) still does “not allege any facts
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`showing that BP p.l.c. has used or imported the accused products.” 1 (Dkt 87 at 5). To satisfy
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`1 WesternGeco L.L.C v. Ion Geophysical Corp., 776 F. Supp. 2d 342 (N.D. Tex 2011), relied
`upon by Plaintiffs for its approval of the pled collective “Fugro” to refer to all defendants, is not
`binding on this Court, is distinguishable from the present facts, and if stretched to apply to the
`present Complaint would offend the Twombly/Iqbal requirements. The WesternGeco court
`recognized the existence of contrary holdings, but “decline[d] to follow these cases and instead
`adopt[ed] an approach we believe to be approved by the Federal Circuit in McZeal.” Id. at 363-
`364 (citing PLS-Pacific Laser Sys. V. TLZ Inc., 2007 WL 2022020, 2007 U.S.Dist. LEXIS 53176
`(N.D. Cal. 2007); See McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007)). But,
`McZeal did not dictate the WesternGeco holding. The McZeal Plaintiff, who appeared pro se,
`was given “leeway on procedural matters, such as pleading requirements” and the McZeal court
`did not identify any objection by defendants to the use of the collective term “the defendants.”
`McZeal at 1356-8. What is more, the complaining defendants in WesternGeco appeared to have
`had significant involvement in the facts of the alleged infringement. WesternGeco at 348-9.
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`Case 1:16-cv-02690-AT Document 104 Filed 07/13/16 Page 3 of 6
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`the Supreme Court’s standard for pleading, however, the allegations contained within the
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`complaint must be “plausible” and they must be supported by sufficient facts that permit “the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Bell Atlantic Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Gevo,
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`Inc. v. Butamax Advance Biofuls LLC, et al, 2013 WL 3381258 (D. Del. 2013).
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`Plaintiffs’ pleading fails to meet that standard. Plaintiffs nowhere allege specific facts
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`showing that “BP p.l.c.” per se used or imported the accused products apart from the acts of its
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`subsidiaries. Plaintiffs contend that the Amended Complaint has infringement allegations
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`against BP (and hence, by Plaintiffs’ contention, against BP p.l.c.) in “more than 60 numbered
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`paragraphs.” But each of the Counts identified by Plaintiffs follows the same conclusory
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`contention format: a specific identification of Emerson products followed by the same general
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`conclusion that “BP” (the collective) is “using, within the United States, or importing into the
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`United States” those identified products. (See, e.g., Dkt. No. 19 at ¶101). There is no indication
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`of which of the BP entities are engaged in the allegedly infringing use or importation and thus
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`there is no indication that BP p.l.c. did anything apart from its subsidiaries that warrants its
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`involvement in this litigation. The only paragraphs identified by Plaintiffs not in the Count
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`format described above are paragraphs 9, 12, 69-70 and 85-86, and those latter paragraphs are
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`deficient for their own reasons, as follows. (See Dkt. 97 at n. 5).
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`Paragraph 9 recognizes that BP p.l.c. is merely a London company that holds BP
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`America, Inc. and BP America Production Company as subsidiaries, which it alleges BP p.l.c.
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`“sufficiently controls” as its “agents.” (Dkt. 19 at ¶9; see also Dkt. 87 at 3). The pleading does
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`not mention any BP p.l.c. personal infringement allegation per se. Further, because Paragraph 9
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`only makes the conclusory allegation that BP p.l.c. has “control” of its “agent” subsidiaries, it
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`Case 1:16-cv-02690-AT Document 104 Filed 07/13/16 Page 4 of 6
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`does not adequately plead facts specific to BP p.l.c.’s “control” of the alleged infringing activity
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`and thus fails even as a “control” theory allegation. Gevo at pp. 6-7; See also Dkt. 87 at 5-6.2
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`Paragraphs 12, 69 and 70 are also deficient. Each paragraph makes only one respective
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`allegation of “infringement,” where these paragraphs allege that the BP defendants are “using”
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`the Emerson products at certain wells (paragraph 12), “operat[ing]” (paragraph 69) wells with
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`Emerson products, or “deploy[ing]” (paragraph 70) Emerson products at wells. (Dkt. 19 at ¶12,
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`69, 70). Those wells are allegedly on “The Harrison County Campus,” which “supports BP’s oil
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`and natural gas operations in East Texas,” but no allegation is made that BP p.l.c. actually owns
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`or operates either those wells or that particular campus. Id. Rather, Plaintiffs insist that all
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`allegations against “BP” as a collective “refer to the actions of all three BP defendants” as
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`individuals. But, “all three BP defendants” cannot independently own the same well, nor can all
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`perform the same alleged “use” of any well. (See Dkt. 97 at 5). Paragraphs 85-86 simply allege
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`that BP does not have a license. There is no specific allegation of infringement.
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`B. BP p.l.c. is Improperly Joined.
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`Plaintiffs illogically contend that all BP entities are responsible if any BP entity uses the
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`products accused of infringement. Dkt. 97 at 7. But it is impossible for three unique entities to
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`have independently committed the same act (infringing use). See 35 U.S.C. §299. Thus, all of
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`the Counts that fail to allege a joint infringement theory (Counts II, IV, VIII, XI, XIII, XV, XVII,
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`XIX, XXII, XXV) improperly join BP p.l.c. because they fail to plausibly allege the specific
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`same infringements that BP p.l.c. independently caused by its “uses” as opposed to uses by the
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`2 Plaintiffs wrongly dismiss the case authority cited in BP p.l.c.’s Opening Brief by contending
`that they “address matters of corporate law” and “have nothing to do with the sufficiency of the
`pleadings in this case.” (Dkt. 97 at 6). Under the Twombly/Iqbal standard, plausible facts for
`establishing legal control must be pled. Twombly. 550 U.S. at 570; Iqbal, 556 U.S. at 678.
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`Case 1:16-cv-02690-AT Document 104 Filed 07/13/16 Page 5 of 6
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`other BP defendants. It is possible to allege “joint” infringement with respect to the same
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`infringing act, and Plaintiffs contend that they have done so in the Counts III, VI, and IX, but,
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`joint infringement exists only "if one party exercises 'control or direction' over the entire process
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`such that every step is attributable to the controlling party, i.e., the 'mastermind."' Muniauction,
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`Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed. Cir. 2008). Here, the joint infringement
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`Counts have no allegations of plausible facts to show the requisite “control,” “alter ego,” or
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`similar situation in order to make BP p.l.c. liable for its subsidiaries’ uses. See Supra at 2-3.
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`C. The Court Should Not Grant Leave to Amend the Complaint Again.
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`Plaintiffs have already amended their complaint once. Despite Plaintiffs’ threats to the
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`contrary, they do not have a basis to write a complaint against BP p.l.c. that satisfies the Rule 11
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`requirements. All of the documents Plaintiffs identify are Emerson documents, thus they are
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`inadmissible hearsay with respect to BP p.l.c. The Emerson “PowerPoint presentation,” which
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`Plaintiffs cite as support, like the suggestion that BP p.l.c.’s CEO may have received quarterly
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`reports, are not relevant as to whether BP p.l.c. should be a party. Recognizing potential
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`savings or receiving an “update” is not an act of infringement and it does not establish control.
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`Finally, the Plaintiffs’ interpretation of an Emerson report as purportedly showing “that
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`BP p.l.c. paid for the Smart Wireless Solutions products” is pure conjecture based on hearsay.
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`The Emerson document Plaintiffs cite does not establish what corporate entity is buying what, or
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`where. Plaintiffs’ speculation is nonsensical in determining that parts for a refinery (owned by a
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`United States company, which is not even a defendant in this case) would be purchased directly
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`by its ultimate foreign parent company. Furthermore, “buying” is not an act of infringement that
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`could form the basis of a proper claim. See 35 U.S.C. §271. Leave should not be granted for
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`Plaintiffs to further their futile accusations of infringement against BP p.l.c.
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`Case 1:16-cv-02690-AT Document 104 Filed 07/13/16 Page 6 of 6
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`Dated: July 13, 2016
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`Respectfully submitted,
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`/s/_Donald L. Jackson
`Donald L. Jackson
`James D. Berquist
`J. Scott Davidson
`DAVIDSON BERQUIST JACKSON &
`GOWDEY, LLP
`8300 Greensboro Dr., Suite 500
`McLean, VA 22102
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`Melissa R. Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`Email: melissa@gillamsmithlaw.com
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`Attorneys for Defendant BP p.l.c.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on this 13th day of July, 2016, a true and correct
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`copy of the foregoing document has been served via the Court’s ECF system to all counsel of
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`record.
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`/s/ Melissa R. Smith______________
`Melissa R. Smith
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