United States District Court, D. Arizona
[Copyrighted Material Omitted]
Jon E. Kappes, Steven G. Lisa, Law Offices of Steven G. Lisa Ltd., Chicago, IL, Victoria Gruver Curtin, Victoria GruverCurtin PLC, Scottsdale, AZ, for Plaintiff.
Brian William Lacorte, Donna Howard Catalfio, Ballard Spahr LLP, Phoenix, AZ, David Bruce Weaver, Syed Kamil Fareed, Vinson & Elkins LLP, Austin, TX, Hilary L. Preston, Armita S. Cohen, Vinson & Elkins LLP, New York, NY, for Defendant.
NEIL V. WAKE, District Judge.
Before the Court is the Nissan Defendants'— Nissan North America, Inc., Nissan Motor Co., LTD, and Midway Holdings, Inc. (collectively, " Nissan" )— Motion to File a Complaint to Add Third-Party Defendants (Doc. 129), the Memorandum in Support of the Motion (Doc. 130), Plaintiff Helferich Patent Licensing's (" Helferich" ) Response, and the Reply. For the following reasons, Nissan's Motion will be denied.
This is a consolidated case consisting of four actions which collectively assert that Defendants have infringed a number of claims of Helferich's patents. Through those claims, Helferich has patented a method for content providers to deliver content to mobile communication devices. Helferich alleges that Nissan and the other Defendants have infringed these claims in a variety of ways, including using patented methods for: creating mobile content; storing the content; identifying the content so that it can be delivered to customers who request it; causing notifications
of the content to be sent to subscribers; and delivering the content to subscribers that request it in response to the subscribers' requests. The infringement occurs, according to Helferich, when Defendants create and store mobile content that they then cause to be delivered to their customers' mobile devices using specific identifiers that are protected by Helferich's claims.
In its Motion, Nissan argues that the principle act that constitutes the alleged infringement is the posting of content to social media pages— websites that are hosted by Google, Facebook, and Twitter (" the social media companies" ). All content providers who operate a Google, Facebook, or Twitter webpage would be liable under Helferich's theory of infringement, Nissan contends, only because content they post to those webpages can be accessed by customers via their cellular phones. According to Nissan, then, its alleged infringement would not be possible without the actions of the social media companies. Nissan contends that the social media companies therefore would have secondary liability to Nissan for any infringement of Helferich's claims. Because of that alleged secondary liability, Nissan argues that it should be allowed, as a third-party plaintiff, to bring Google, Facebook, and Twitter into this case as third-party defendants.
II. Legal Standard
Under Federal Rule of Civil Procedure 14, a defendant may bring a third-party complaint against " a nonparty who is or may be liable to it for all or part of the claim against it" as a matter of right. Fed.R.Civ.P. 14(a)(1). Thus, a party can assert a third-party claim where a third-party defendant's liability to the third-party plaintiff is dependent on the outcome of the main claim and is secondary or derivative thereto. Stewart v. Am. Int'l Oil & Gas Co.,845 F.2d 196, 199 (9th Cir.1988). If a defendant, and would-be third-party plaintiff, files the third-party complaint more than 14 days after serving its original answer, however, " the third-party plaintiff must, by motion, obtain the court's leave." Fed.R.Civ.P. 14(a)(1). Here, Nissan has sought the Court's leave to bring a third-party complaint nearly ...