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07/07/2016 47 Minute Entry for proceedings held before Hon. Jon S. Tigar: Motion Hearing held on 7/7/2016 re 23 First MOTION to Dismiss First Amended Complaint filed by iBaby Labs, Inc. FTR Recording Time 2:33 − 3:03 p.m. (wsn, COURT STAFF) (Date Filed: 7/7/2016) (Entered: 07/07/2016)

RE: doc 23

MOTION

"Pursuant to Federal Rule of Civil Procedure (―Rule‖) 12(b)(6), Defendant IBABY Labs, Inc. (dba iBaby) (―Defendant‖ or ―iBaby‖) respectfully moves to dismiss the February 09, 2016 First Amended Complaint For Patent Infringement (the ―FAC‖) of Plaintiff e.Digital Corporation (―Plaintiff‖ or ―e.Digital‖) (Docket No. 20), for failure to state a plausible claim for relief. This Motion incorporates the Memorandum of Points and Authorities, the record in this action, and such additional papers and arguments that may be may be hereinafter presented in connection with this motion. iBaby respectfully submits the following brief in support of its motion to dismiss Plaintiff‘s FAC."

"In federal court, a pleading must contain a short, plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). A complaint is deficient if it fails to state a plausible claim for relief on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 167 L. Ed. 2d 929 (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. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (requiring plaintiff to plead factual content that provides ―more than a sheer possibility that a defendant has acted unlawfully‖). Thus, a claimant‘s ―obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.‖ Twombly, 550 U.S. at 555. In resolving a 12(b)(6) motion, courts accept all well-pleaded allegations material fact as true and construes them in a light most favorable to the nonmoving party. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). In addition to the complaint itself, a court may consider certain materials – documents attached to or incorporated by reference in the complaint, or matters of judicial notice. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). Where a motion to dismiss is granted, ―leave to amend should be granted ‗unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.‘‖ DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (citation omitted). In other words, where futile, the Court may deny leave to amend. DeSoto, 957 F.2d at 658. In this patent infringement case, several other legal tenets are pertinent."

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Defandant has been arguing the issue of Doc 23, regarding e.Digitals amended issue since 1-28-16, with its first motion to dismiss the initial complaint based on the same consideration(see below).....now having a consideration that the amended complaint is no different than the initial complaint.

Full docket text for document 18:
NOTICE OF MOTION &MOTION to Dismiss for Failure to State a Claim (F.R.Civ.P. 12(b)(6)) - Correction of Docket #[17] filed by iBaby Labs, Inc.. Motion Hearing set for 3/10/2016 02:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Responses due by 2/11/2016. Replies due by 2/18/2016. (Attachments: #(1) Memorandum of Points and Authorities, #(2) Proposed Order)(Chen, Alexander) (Filed on 1/28/2016)

With in their argued points...they do seem to admit(?) to some form of infringement, but not to the considered infringement e.Digital initially contends...

5 months or so later ....yesterday, a hearing arguing the issues to dismiss are heard.

7-7-16

"RESULT OF HEARING 1. Motion hearing held. The motion is under submission."

Perhaps we will read the results, at some point, what the court feels of the defendants arguments for the types of infringement not to be considered.

doni