Case 1:20-cv-00393-LMB-WEF Document 50 Filed 07/13/20 Page 1 of 4 PageID# 584
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`RAI STRATEGIC HOLDINGS, INC. and R.J.
`REYNOLDS VAPOR COMPANY
`
`
`Plaintiffs,
`
`
`v.
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA, INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`
`Defendants.
`
`Case No. 1:20-cv-00393-LO-TCB
`
`
`
`
`
`PLAINTIFFS’ RESPONSE TO
`DEFENDANTS’ MOTION TO DISMISS
`
`Plaintiffs RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor Company (collectively,
`
`“Plaintiffs”) submit this response to Altria Client Services LLC’s, Philip Morris USA, Inc.’s, and
`
`Philip Morris Products S.A.’s (collectively, “Defendants”) Partial Motion to Dismiss Plaintiffs’
`
`Complaint For Patent Infringement (Dkt. No. 36) (“Motion to Dismiss”).
`
`Plaintiffs initiated this action, and served the Summons and Complaint on certain
`
`Defendants on April 13, 2020. On May 4, 2020, the Court extended Defendants’ time to respond
`
`to the Complaint until June 29, 2020. On May 5, 2020, the Court dismissed Defendants Altria
`
`Group, Inc. and Philip Morris International Inc. from the case. The remaining Defendants filed
`
`their Partial Answers and Counterclaims to Plaintiffs’ Complaint on June 29, 2020. On that same
`
`day, Defendants filed their Partial Motion To Dismiss Plaintiffs’ Complaint for Patent
`
`Infringement (Dkt. No. 36) (“Motion to Dismiss”).
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`RAI STRATEGIC HOLDINGS, INC. and R.J.
`REYNOLDS VAPOR COMPANY
`
`
`Plaintiffs,
`
`
`v.
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA, INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`
`Defendants.
`
`Case No. 1:20-cv-00393-LO-TCB
`
`
`
`
`
`PLAINTIFFS’ RESPONSE TO
`DEFENDANTS’ MOTION TO DISMISS
`
`Plaintiffs RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor Company (collectively,
`
`“Plaintiffs”) submit this response to Altria Client Services LLC’s, Philip Morris USA, Inc.’s, and
`
`Philip Morris Products S.A.’s (collectively, “Defendants”) Partial Motion to Dismiss Plaintiffs’
`
`Complaint For Patent Infringement (Dkt. No. 36) (“Motion to Dismiss”).
`
`Plaintiffs initiated this action, and served the Summons and Complaint on certain
`
`Defendants on April 13, 2020. On May 4, 2020, the Court extended Defendants’ time to respond
`
`to the Complaint until June 29, 2020. On May 5, 2020, the Court dismissed Defendants Altria
`
`Group, Inc. and Philip Morris International Inc. from the case. The remaining Defendants filed
`
`their Partial Answers and Counterclaims to Plaintiffs’ Complaint on June 29, 2020. On that same
`
`day, Defendants filed their Partial Motion To Dismiss Plaintiffs’ Complaint for Patent
`
`Infringement (Dkt. No. 36) (“Motion to Dismiss”).
`
`
`
`
`
`Case 1:20-cv-00393-LMB-WEF Document 50 Filed 07/13/20 Page 2 of 4 PageID# 585
`
`Under the federal rules, Plaintiffs have the option of amending their Complaint as of right
`
`within 21 days of Defendants’ filing their Motion to Dismiss. Fed. R. Civ. P. 15(a)(1)(B). When
`
`this provision of Rule 15 was enacted, the Advisory Committee explained that the rule was
`
`designed to encourage amendments that might obviate or reduce objections to the pleading and
`
`conserve judicial resources:
`
`This provision will force the pleader to consider carefully and
`promptly the wisdom of amending to meet the arguments in the
`motion. A responsive amendment may avoid the need to decide
`the motion or reduce the number of issues to be decided, and will
`expedite determination of issues that otherwise might be raised
`seriatim. It also should advance other pretrial proceedings.
`
`Fed. R. Civ. P. advisory committee’s note to 2009 Amendment.
`
`In this case, Plaintiffs have carefully considered the arguments in Defendants’ motion, and
`
`while Plaintiffs do not agree with Defendants’ assertions, they have concluded that further motion
`
`practice might be avoided or, at least, reduced, by amending the Complaint. Thus, in keeping with
`
`the policy behind the rule to conserve judicial resources and to amplify the factual support in their
`
`original Complaint, Plaintiffs are filing concurrently an Amended Complaint in accordance with
`
`Rule 15(a)(1)(B).
`
`Plaintiffs’ filing of this Amended Complaint automatically renders Defendant’s pending
`
`motion moot. See, e.g., Wilson v. City of Chesapeake, No. 2:16CV301, 2016 WL 11671375, *1
`
`(E.D. Va. July 20, 2016) (“Because an amended complaint supersedes the original complaint and
`
`renders it of no legal effect, … Defendants’ Motion to Dismiss … is DENIED as moot.”); Roncales
`
`v. County of Henrico, No. 3:19CV234, 2019 WL 8112889, at *1-*2 (E.D. Va. July 11, 2019)
`
`(finding amended complaint “supersedes the original and renders it of no legal effect” and denying
`
`pending motion to dismiss as moot).
`
`2
`
`
`
`Case 1:20-cv-00393-LMB-WEF Document 50 Filed 07/13/20 Page 3 of 4 PageID# 586
`
`Therefore, Plaintiffs respectfully request that Defendants’ Motion to Dismiss be denied as
`
`moot.
`
`Dated: July 13, 2020
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`Kenneth S. Luchesi
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`Email: kluchesi@jonesday.com
`
`Stephanie E. Parker
`JONES DAY
`1420 Peachtree Street, N.E., Suite 800
`Atlanta, GA 30309
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive, Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`Counsel for Plaintiffs
`RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
`
`3
`
`
`
`Case 1:20-cv-00393-LMB-WEF Document 50 Filed 07/13/20 Page 4 of 4 PageID# 587
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on this 13th day of July, 2020, a true and correct copy of the foregoing
`
`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
`
`counsel of record.
`
`
`
`
`
`
`
`
`
`
`
`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`
`Counsel for Plaintiffs
`RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
