Plaintiff,
`
`
`
`v.
`
`AMERANTH, INC.,
`
`
`
`
`
`INC., EAT’N PARK
`DOORDASH,
`RESTAURANTS, LLC and EAT’N PARK
`HOSPITIALITY GROUP, INC.,
`
`
`
`Civil Action
`
`No. 2:23-cv-02165-WSH
`
`Judge W. Scott Hardy
`
`
`Electronically Filed
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case 2:23-cv-02165-WSH Document 18 Filed 05/08/24 Page 1 of 5
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`
`
`
`Defendants.
`
`
`DEFENDANTS’ OPPOSED MOTION TO
`EXTEND RESPONSIVE PLEADING DEADLINE
`
`Defendants, DoorDash, Inc., (“DoorDash”) and Eat’n Park Restaurants, LLC and Eat’n
`
`Park Hospitality Group, Inc., (“Eat’n Park”) (collectively “Defendants”), respectfully move to
`
`extend the time to answer or move to dismiss to the Complaint by sixty (60) days until and
`
`including July 16, 2024. Alternatively, Defendants request an extension of time to answer or
`
`otherwise respond to the Complaint until 21 days from the date this Court rules on DoorDash’s
`
`pending motion to dismiss in Ameranth I (see below). Previously, on March 5, 2024, the parties
`
`moved jointly for one extension of time for Defendants to respond to Ameranth’s Complaint until
`
`and including May 17, 2024 (Dkt. 10). As grounds for their Motion, and pursuant to Judge Hardy’s
`
`Practices and Procedures II(A)(3), Defendants state as follows:
`
`1.
`
`Ameranth filed its Complaint against the Defendants on December 12, 2023,
`
`ostensibly as a follow-on action to the co-pending action captioned Ameranth, Inc. v. DoorDash,
`
`Inc., Civil Action No. 2:22-cv-01776-WSH (“Ameranth I”).
`
`2.
`
`In Ameranth I, Plaintiff sued DoorDash in this District for infringement of U.S.
`
`Patent No. 11,276,130 (the “’130 patent”) on December 9, 2022. (Ameranth I, Dkt. 1.)
`
`

`

`Case 2:23-cv-02165-WSH Document 18 Filed 05/08/24 Page 2 of 5
`
`No. 2:23-cv-02165-WSH
`
`3.
`
`On June 29, 2023, DoorDash timely moved to dismiss in Ameranth I for improper
`
`venue, or alternatively, to transfer, and failure to state a claim as the ’130 patent is invalid
`
`(Ameranth I, Dkt. 21). DoorDash’s Motion to Dismiss in Ameranth I is currently pending before
`
`this Court.
`
`4.
`
`Thereafter, Ameranth brought the current action against DoorDash and Eat’n Park
`
`alleging infringement of U.S. Patent Nos. 11,842,415 (the “’415 patent”) and 11,847,587 (the
`
`“’587 patent’), both of which are in the same patent family and stem from the ’130 patent asserted
`
`in Ameranth I.
`
`5.
`
`On March 5, 2024, the parties moved jointly to extend the deadline for Defendants
`
`to respond to Plaintiff’s Complaint by sixty (60) days until and including May 17, 2024.
`
`6.
`
`DoorDash continues to believe that venue is improper in this District as to
`
`DoorDash for at least the same grounds raised in Ameranth I. Thus, guidance from the Court in
`
`its ruling on DoorDash’s motion to dismiss in Ameranth I with regard to the venue question would
`
`inform the parties on how best to proceed in the instant action by streamlining the issues and
`
`avoiding unnecessary motion practice before the Court.
`
`7.
`
`Moreover, Ameranth’s addition of new defendant Eat’n Park has no bearing on
`
`venue against DoorDash. Eat’n Park is a merchant that uses the DoorDash platform (including by
`
`appearing on DoorDash MarketPlace so consumers can order from Eat’n Park) as an independent
`
`contractor. But independent businesses that contract with DoorDash are not “places of the
`
`defendant” as required to establish venue against DoorDash under the test set out by the Federal
`
`Circuit in In re Cray. 871 F.3d 1355, 1363 (Fed. Cir. 2017) (“Finally, the third requirement when
`
`determining venue is that ‘the regular and established place of business’ must be ‘the place of the
`
`defendant.’”); see also Talsk Rsch. Inc. v. Evernote Corp., No. 16-cv-2167, 2017 WL 4269004 at
`
`2
`
`

`

`Case 2:23-cv-02165-WSH Document 18 Filed 05/08/24 Page 3 of 5
`
`No. 2:23-cv-02165-WSH
`
`*5 (N.D. Ill. Sept. 26, 2017) (finding no defendant presence through non-employee independent
`
`contractors, and noting that “relying on customer use of Defendant’s [product] within the district
`
`as a substitute for a fixed physical location would not be proper.”).
`
`8.
`
`In addition, Defendants believe that just like the asserted claims of the ’130 patent
`
`in Ameranth I, the asserted claims of the ’415 and ’587 patents here are invalid under 35 U.S.C. §
`
`101 for claiming patent ineligible subject matter. Indeed, the ’415 and ’587 patents issued from
`
`divisional and continuation applications claiming priority to and sharing the same specification as
`
`the ’130 patent asserted in Ameranth I. Therefore, a ruling by the Court on the patent ineligibility
`
`issue in Ameranth I would inform and simplify the issues with regard to patent eligibility in this
`
`case as well.
`
`9.
`
`Further, the requested extension will not unduly delay the ultimate resolution of
`
`this matter or unduly prejudice Ameranth, which is a patent assertion entity seeking monetary
`
`damages. See, e.g., Gesture Tech. Partners, LLC v. LG Elecs. Inc., No. CV2119234JMVMAH,
`
`2022 WL 1002101, at *5 (D.N.J. Apr. 4, 2022) (concluding that the relationship of the parties
`
`favored a stay pending inter partes review because the plaintiff was “a non-practicing entity that
`
`does not directly compete with [defendant], and can be compensated by money damages.”). For
`
`at least these reasons, good cause exists to grant the extension of time sought by this Motion. Fed.
`
`R. Civ. P 6(b)(1). No other deadlines would be affected by this request.
`
`10.
`
`Defendants consulted with Ameranth about the requested 60-day extension.
`
`Ameranth refused to agree to Defendants’ request. Ameranth’s position is that the parties are
`
`different in this case compared to Ameranth I, there are new and different venue factors, and the
`
`patents and patent claims are different as well. Ex. A.
`
`
`
`3
`
`

`

`Case 2:23-cv-02165-WSH Document 18 Filed 05/08/24 Page 4 of 5
`
`No. 2:23-cv-02165-WSH
`
`11.
`
`However, as explained above, good cause exists to extend the deadline for
`
`Defendants to respond to Ameranth’s Complaint in this action. DoorDash is a named defendant
`
`both here and in Ameranth I and the venue issues remain the same with respect to DoorDash.
`
`Further, the patents asserted here are in the same family and derive from the patent asserted in
`
`Ameranth I, suffering from the same patent ineligibility flaws.
`
`WHEREFORE, Defendants respectfully request that the deadline for Defendants to file a
`
`responsive pleading be extended by 60 days from May 17, 2024 to July 16, 2024. Alternatively,
`
`Defendants request an extension of time to answer or otherwise respond to the Complaint until 21
`
`
`
`
`
`days from the date this Court rules on DoorDash’s pending Motion to Dismiss in Ameranth I.
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: May 8, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`THE WEBB LAW FIRM
`
`s/ Kent E. Baldauf, Jr.
`
`
`Kent E. Baldauf, Jr. (PA ID No. 70793)
`Bryan P. Clark (PA ID No. 205708)
`One Gateway Center
`420 Ft. Duquesne Blvd., Suite 1200
`Pittsburgh, PA 15222
`412.471.8815
`412.471.4094 (fax)
`kbaldaufjr@webblaw.com
`bclark@webblaw.com
`
`AND
`Mircea A. Tipescu (PHV forthcoming)
`Louis Constantinou (PHV forthcoming)
`BENESCH FRIEDLANDER
` COPLAN & ARONOFF LLP
`71 South Wacker Drive, Suite 1600
`Chicago, IL 60606
`312.212.4949
`312.767.9192 (fax)
`mtipescu@beneschlaw.com
`lconstantinou@beneschlaw.com
`
`Attorneys for Defendants
`
`4
`
`

`

`Case 2:23-cv-02165-WSH Document 18 Filed 05/08/24 Page 5 of 5
`
`No. 2:23-cv-02165-WSH
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on the 8th day of May, 2024, I electronically filed the foregoing
`
`DEFENDANTS’ OPPOSED MOTION TO EXTEND RESPONSIVE PLEADING
`
`DEADLINE with the Clerk of Court using the CM/ECF system which sent notification to all
`
`counsel of record.
`
`THE WEBB LAW FIRM
`
`
`s/ Kent E. Baldauf, Jr.
`Kent E. Baldauf, Jr.
`
`
`
`
`
`
`
`
`
`