                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 IN RE PAPST LICENSING GMBH & CO.
 KG LITIGATION
                                                         Misc. Action No. 07-493 (RMC);
                                                         MDL Docket No. 1880
 This Document Relates To:

 Papst v. Konica Minolta Holdings, Inc. and
 Konica Minolta Business Solutions USA,
 D.D.C. 08-cv-1404 (N.D. Ill. No. 08-cv-
 3606)




                                MEMORANDUM OPINION

              Papst Licensing GMBH & Co. KG (“Papst”) filed a complaint against Konica

Minolta Business Solutions U.S.A., Inc. (“KMBUS”) alleging that KMBUS infringed two

patents owned by Papst, U.S. Patent Nos. 6,470,399 and 6,895,449 (the “Patents”) by selling or

importing digital cameras in the United States. KMBUS moves for judgment on the pleadings.

Because KMBUS is not in the business of manufacturing or selling digital still cameras, Papst’s

Complaint will be dismissed

                                          I. FACTS

              Papst filed a Complaint against KMBUS alleging in pertinent part:

              10. Upon information and belief the Konica-Minolta Defendants1
              have made, used, sold, or offered to sell to numerous customers in


       1
         The Complaint named as defendants KMBUS and Konica Minolta Holdings, Inc.
(“KMHD”). KMHD was dismissed for lack of personal jurisdiction via Memorandum Opinion
and Order filed March 5, 2009 [Dkts. ## 271 & 272 in Misc. No. 07-493 and Dkts. ## 24 & 25 in
Civ. No. 08-1404].
               the United States or have imported into the United States digital
               cameras which infringe the Patents in Suit.

               11. A reasonable opportunity for further investigation or discovery
               is likely to provide evidentiary support that the Konica-Minolta
               Defendants have actively induced others and/or contributed to the
               infringement of the Patents in Suit.

Compl. ¶¶ 10 & 11. The Complaint is bare bones; it does not alleges any facts in support of

these allegations.

               Contrary to Papst’s allegation that KMBUS manufactured, sold, or imported

digital cameras, KMBUS indicates that it has not ever made, sold, or imported digital still

cameras; it sells business equipment. Jonathan M. Remshak, Senior Corporate Counsel of

KMBUS, indicated in his Declaration:

               2. KMBUS is in the business of selling business equipment, such
               as printers, copiers, fax machines, and software solutions.

               3. KMBUS is not now, nor has it ever been, involved in the digital
               still camera (“DSC”) business. KMBUS has never made, sold, or
               imported DSCs. KMBUS did not have control over or association
               with Konica Minolta’s now-discontinued DSC business.

Decl. of Jonathan M. Remshak (Remshak Decl.) [Dkt. # 278] ¶¶ 2 & 3. Two different Konica

corporate entities were responsible for manufacturing digital cameras and selling them in the

United States: Konica Minolta Photo Imaging, Inc. (“KMPI”) manufactured digital cameras and

Konica Minolta Photo Imaging U.S.A., Inc. (“KMPUS”) sold digital cameras in the United

States. See KMHD’s Reply [Dkt. # 236] at 1 n.1. Both KMPI and KMPUS left the digital

camera business in April 2006. Id.

                                     II. LEGAL STANDARD

               KMBUS seeks dismissal pursuant to a motion for judgment on the pleadings


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under Federal Rule of Civil Procedure 12(c). Rule 12(c) provides, “[a]fter the pleadings are

closed — but early enough not to delay trial — a party may move for judgment on the

pleadings.” A motion for judgment on the pleadings is treated as one for summary judgment,

however, where the moving party asks the court to take into consideration matters outside the

pleadings. See Fed. R. Civ. P. 12(d) (on a 12(c) motion, if matters outside the pleadings are

presented and not excluded, a court must treat the motion as one for summary judgment under

Rule 56); see also McGovern v. Martz, 182 F. Supp 343, 349 n.19 (D.D.C. 1960). Here,

KMBUS relies on the facts set forth in the Remshak Declaration. Accordingly, the Court treats

the motion as one for summary judgment.

               Summary judgment must be granted when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);

see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary

judgment is properly granted against a party who “after adequate time for discovery and upon

motion . . . fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must

draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s

evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more

than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. In

addition, the nonmoving party may not rely solely on allegations or conclusory statements.


                                                 -3-
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must

present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the

evidence “is merely colorable, or is not significantly probative, summary judgment may be

granted.” Anderson, 477 U.S. at 249-50 (citations omitted).

                                          III. ANALYSIS

               KMBUS argues that (1) it has never manufactured, sold, or imported digital still

cameras and thus could not have infringed the Patents as alleged in the Complaint; and (2) the

Complaint fails to allege facts sufficient “to raise a right to relief above the speculative level” as

required under Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). In response, Papst

focuses on KMBUS’s second argument, ignoring the first. Papst states that it is willing to amend

the Complaint to delete the “upon information and belief” and the “reasonable opportunity for

further discovery” language. Papst’s Opp’n at 1. Papst argues:

               Papst has reviewed its investigation and negotiations with the
               infringers in this matter, including an infringing camera and the
               claim charts it provided to the infringers. On that basis, Papst has
               concluded that it has sufficient evidentiary basis to plead patent
               infringement without invoking the language authorized and
               permitted by Rule 11(b). . . . Papst respectfully requests an
               opportunity to cure any perceived defects in pleadings by filing an
               amended complaint after the court has identified what it perceives
               those defects to be.

Id. at 4. Papst does not contest KMBUS’s assertion that it is not in the digital still camera

business and never has been. Having failed to contest this critical fact, it is deemed conceded.

See LCvR 7(h) (facts set forth in a motion for summary judgment are admitted if not

controverted in response); accord Jackson v. Finnegan, Henderson, Farabow, Garrett &

Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996); cf. Greene, 164 F.3d at 675 (the nonmoving party


                                                  -4-
must present specific facts that would enable a reasonable jury to find in its favor).2 Because the

Complaint rests on the allegation that KMBUS manufactured, sold, or imported digital cameras

and the uncontested fact is that KMBUS has never been in the digital still camera business,

KMBUS is entitled to a judgment as a matter of law.

                                       IV. CONCLUSION

               For the foregoing reasons, the motion for judgment on the pleadings filed by

Konica Minolta Business Solutions U.S.A., Inc. (“KMBUS”) [Dkt. # 256 in Misc. No. 07-493],

which the Court treats as a motion for summary judgment, will be granted. Papst v. Konica

Minolta Holdings and Konica Minolta Business Solutions USA, D.D.C. 08-cv-1404 (originally

N.D. Ill. No. 08-cv-3606), will be dismissed and closed. A memorializing order accompanies this

Memorandum Opinion.




Dated: March 26, 2009                                         /s/
                                              ROSEMARY M. COLLYER
                                              United States District Judge




       2
         Even if the Court had treated KMBUS’s motion for judgment on the pleadings as a
motion to dismiss instead of a motion for summary judgment, the Court would have to conclude
that Papst conceded the issue. “It is well understood in this Circuit that when a plaintiff files an
opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to address as conceded.” Hopkins v.
Women’s Div., Gen. Bd. of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (citing
FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)).

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