United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Judge
Grecia filed a two count complaint, (Dkt. 1), against
McDonald's Corporation alleging that McDonald's
infringed on claims 9 and 10 of U.S. Patent No. 8, 533, 860
(the “‘860 patent”) and claims 12-14 and
24-26 of U.S. Patent No. 8, 402, 555 (the “‘555
patent”). Claim 10 of the ‘860 patent and claims
13-14 and 24-26 of the ‘555 patent are dependent on
claim 9 of the ‘860 patent and claim 12 of the
‘555 patent, respectively. In its motion to dismiss,
(Dkt. 17), McDonald's argued that Grecia pleaded himself
out of court because the complaint demonstrated that
McDonald's actions did not constitute “use”
of the claimed inventions under 35 U.S.C. § 271(a). In
its August 23, 2016, Memorandum Opinion and Order, the Court
held that Grecia did not plausibly allege that McDonald's
used the claimed systems because the McDonald's data
processing devices - point-of-sale devices - are not part of
the claimed systems and dismissed Grecia's complaint with
prejudice. (Dkt. 24 at 4). Grecia now moves for
reconsideration of the Court's dismissal of the
complaint. For the following reasons, Grecia's motion
 is denied.
brings his motion to reconsider under Rule 60(b)(6). The
Court, however, treats the motion as a Rule 59(e) motion
because Grecia asks the Court to correct “manifest
errors of law” and because the motion was brought
within 28 days of the Court's order. See Seong-Tiong
Ho v. Taflove, 648 F.3d 489, 495 n. 5 (7th Cir. 2011).
Relief under 59(e) is appropriate “where the movant
clearly establishes . . . that the court committed a manifest
error of law or fact . . . .” Cincinnati Life Ins.
Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013)
(internal quotations omitted).
explicitly contends that the Court made two manifest errors
of law justifying relief. First, he claims that the Court
failed to construe well-pleaded facts in his favor when it
held that the point-of-sale device was not part of the
claimed systems. Second, Grecia argues that the Court abused
its discretion by denying him an opportunity to amend his
complaint. Neither of these arguments is persuasive.
motion to dismiss, the Court has an obligation to construe
well-pleaded facts in the light most favorable to the
non-moving party. See, e.g., Vesely v. Armslist LLC,
762 F.3d 661, 664 (7th Cir. 2014). It is Grecia's
responsibility, however, to bring facts that support his
position to the Court's attention. Anderson-El v.
Shade, 114 F.3d 1191, 1191 (7th Cir. 1997) (citing
Little v. Cox's Supermarkets, 71 F.3d 637, 641
(7th Cir. 1995)).
Court, based on Grecia's allegations and the specific
citations he made to the ‘860 and ‘555 patents,
which are attached to the complaint as exhibits, determined
that Grecia's claimed systems are comprised of a first
receipt module, an authentication module, a connection
module, a request module, a second receipt module, and a
branding module. (Dkt. 24 at 4; Dkt. 1 ¶¶ 10a-f,
11a-f, 12a-f, 13a-f, 17a-f, 18a-f, 19a-f, 20a-f).
Nowhere in the complaint, which is laced with direct quotes
from and citations to specific portions of the patents, did
Grecia allege that point-of-sale devices are part of the
claimed systems. Grecia now asserts that it pled that
point-of-sale devices are part of the claimed systems because
it attached the ‘860 and ‘555 patents to the
complaint as exhibits. Specifically, he points to patent
‘860, which provides that claim 9 is a “system .
. .comprising connected modules in operation as computing and
storage, the computing and storage comprising a server, a
database, devices and users . . . .” (Dkt. 25
at 2 (citing Dkt. 1-1 at col. 15:45-49) (emphasis in Dkt.
25)). This language was not well pled given that, in his
complaint, Grecia detailed the components of claim 9 and
provided specific citations to portions of the patents that
describe the components, but excluded lines 47-49 of column
15 from his description. (Compare Dkt. 1 at
¶¶ 10, 11, 12, 13 (“Claim 9 is a
‘system for authorizing access to digital content using
a worldwide cloud system infrastructure . . . .'”)
(citing Dkt. 1-1 col. 15:45-46), with Dkt. 25 at 2
(“Claim 9 is a ‘system . . . comprising connected
modules in operation and computing and storage, the computing
and storage comprising a server, a database, devices and
users . . . .'”) (citing Dkt. 1-1 col
15:45-49) (emphasis in Dkt. 25)). Grecia also failed to bring
that portion of claim 9 to the Court's attention in his
response to the motion to dismiss, despite the fact that the
point-of-sale devices were clearly at issue.
Court construed all of Grecia's well-pleaded facts and
the 50 citations he made to the exhibits - citations which
did not include Dkt. 1-1 col. 15:47-49 - in his favor and
still found that Grecia failed to allege that the
point-of-sale device was part of the claimed systems. Grecia,
who is represented by counsel, is not entitled to the same
liberal construction courts afford pro se litigants. See
Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014)
(citations omitted) (“We have repeatedly emphasized
that pro se petitions are to be construed liberally, and
should be held to standards less stringent than formal
pleadings drafted by attorneys.”); see also
Shashoua v. Quern, 612 F.2d 282, 285 (7th Cir. 1979).
Contrary to Grecia's contention, the Court did not
“turn a blind eye” to the exhibits attached to
the complaint, (Dkt. 25 at 4); the Court looked to the
portions of the exhibits to which it was directed.
next contends that the Court committed a manifest error of
law when it denied him an opportunity to replead. The Court
is well within its discretion to dismiss a complaint without
an opportunity to amend where a plaintiff's request to
amend his complaint is first raised in a motion to reconsider
and where a party fails to offer an amendment that would cure
any defects. Indep. Trust Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 943 (7th Cir. 2012) (citations
omitted). The Court also notes that a motion for
reconsideration is not the place to rehash arguments that
could have previously been raised. See Caisse Nationale
de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270
(7th Cir. 1996) (citations omitted); Sigsworth v. City of
Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007)
(citations omitted); Casas v. Devane, No.
15-cv-8112, 2015 WL 9182744, at *1 (N.D. Ill. Apr. 25, 2016).
In its motion to dismiss, McDonald's explicitly argued
that the Court should dismiss Grecia's complaint
“because there is no possibility that Mr. Grecia can
amend his complaint to state a claim . . . .” (Dkt. 17
at 6). Grecia did not address this argument or suggest any
amendments that would save his complaint in his response.
Indep. Trust, 665 F.3d at 943. Grecia did not
request leave to amend in his response, despite
McDonald's' argument for dismissal with prejudice,
therefore that argument is not properly before the Court.
addition to these two alleged errors, Grecia suggests that
the Court erred by relying on Uniloc USA, Inc. v.
Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011) instead
of Centillion Data Sys., LLC v. Quest Commc'ns
Int'l, Inc., 631 F.3d 1279 (Fed. Cir. 2011). The
Court relied on the reasoning in both Centillion and
Uniloc in reaching its decision on the motion to
dismiss. In Centillion, the Federal Circuit
addressed the issue of infringement for “use” of
a divided system. 631 F.3d at 1283. In the instant case, the
Court found that Grecia's claimed systems were not
divided, unlike the one at issue in Centillion. The
Court then turned to Uniloc because it shows
“that the test for ‘use' is different for
divided systems than for inventions controlled by a single
party.” (Dkt. 24 at 3). This Court properly applied the
Uniloc test to Grecia's single-user system
claims and found that McDonald's did not
“use” Grecia's systems. Grecia argues that
Uniloc, which “teaches how a jury can support
a finding that a defendant infringes an apparatus claim,
” is inapplicable here because Grecia's claim is a
system claim; Grecia, however, provides no authority
indicating that the Court's reliance on Uniloc
was a manifest error of law. (Dkt. 25 at 4).
foregoing reasons, Grecia's motion for ...