United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND
GRANTING PLAINTIFF TIME TO FILE AN AMENDED COMPLAINT
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion to Dismiss filed by the
defendant/counter-plaintiff, New Palace Casino, LLC, in this
patent case. The parties have fully briefed the Motion. After
reviewing the submissions of the parties, the record in this
matter, and the applicable law, the Court finds that New
Palace's Motion should be granted because the Second
Amended Complaint filed by the plaintiff/counter-defendant,
Hawk Technology Systems, LLC, fails to state a claim on which
relief may be granted.
filed this patent infringement lawsuit against New Palace on
June 15, 2018, and twice amended its complaint. In its second
amended complaint, Hawk explains that it “was formed in
2012 to commercialize the inventions of its founder, Barry
Schwab.” (2d Am. Compl. 2, ECF No. 15.) Hawk alleges
that New Palace “uses a video storage and display
system and methods that infringe” two of Hawk's
patents - the ‘462 patent and the ‘342 patent.
Hawk claims that a claim chart it attached to its complaint
as exhibit A explains how New Palace infringes on its
patents. The claim chart compares claims of its patents with
features of the Pelco Endura video management system, but
neither the complaint nor the claim chart explains the
connection between New Palace and the Pelco
Endura. New Palace filed the present Motion to
Dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
Rule 12(b)(6) requires a complaint to “contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The court must accept all
well-pleaded facts as true and view those facts in the light
most favorable to the plaintiff. King-White v. Humble
Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015).
This standard applies to complaints for patent infringement.
Howard v. Ford Motor Co., No. 1:16cv127-LG-RHW, 2016
WL 4077260, at *2 (S.D.Miss. July 29, 2016).
conclusory assertion in Hawk's complaint that New Palace
“uses a video storage and display system and
methods” that infringe on its patents is insufficient
to state a plausible claim for relief. In addition, the
parties agree that the patents referenced in the complaint
have expired, but the complaint does not contain any facts
that would support Hawk's claim for recovery as to these
expired patents. New Palace asks the Court to deny Hawk leave
to amend its complaint, because Hawk has previously filed
three complaints in this lawsuit and has filed a similar
complaint that was deemed insufficient in another
jurisdiction. See generally Hawk Tech. Sys., LLC v.
Brickell Fin. Centre, LLC, No. 13-24005-CV-SEITZ, 2014
WL 11946879 (S.D. Fla. Feb. 27, 2014).
plaintiff's failure to meet the specific pleading
requirements should not automatically or inflexib[ly] result
in dismissal of the complaint with prejudice to
re-filing.” Hart v. Bayer Corp., 199 F.3d 239,
247 n.6 (5th Cir. 2000). “Although a court may dismiss
the claim, it should not do so without granting leave to
amend, unless the defect is simply incurable or the plaintiff
has failed to plead with particularity after being afforded
repeated opportunities to do so.” Id. This
case presents a very close question, but Hawk will be granted
one more opportunity to amend its complaint. The Court will
deny New Palace's request for attorney's fees,
expenses, and costs at this time, but the Court may
reconsider that request if Hawk should file any other
deficient pleadings in this lawsuit.
IS, THEREFORE, ORDERED AND ADJUDGED that the 
Motion to Dismiss filed by the defendant/counter-plaintiff,
New Palace Casino, LLC, is GRANTED. The
plaintiff, Hawk Technology Systems, LLC, is granted fifteen
days from the date of this Order to file a third amended
IS, FURTHER, ORDERED AND ADJUDGED that, if Hawk
Technology Systems, LLC, fails to file a third amended
complaint within fifteen days of the date of this Order, this
lawsuit may be dismissed without further notice.
ORDERED AND ADJUDGED.
 The claim chart filed with the
original complaint described a different video system, the
Ganz ZNS NVR, with no explanation of the connection between