UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

LIPPERT COMPONENTS ) 

MANUFACTURING, INC., ) 

 ) 

 Plaintiff, ) 

 ) 

 vs. ) CAUSE NO. 3:16-cv-263 RLM-MGG 

 ) 

MOR/RYDE, INC., and ) 

MORRYDE INTERNATIONAL, INC., ) 

 ) 

 Defendants. ) 

OPINION and ORDER 

Lippert Components Manufacturing, Inc. asks the court to reconsider its 

ruling granting in part and denying in part MORryde Inc. and MORryde 

International Inc.’s (collectively MORryde) Rule 12(b)(6) motion to dismiss. [Doc. 

No. 80]. Lippert requests that the court reconsider that ruling to the extent it 

dismissed Lippert’s second amended complaint’s induced and contributory 

infringement claims with prejudice. For the reasons that follow, the court denies 

the motion to reconsider. 

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 54(b) provides that a court may alter or 

amend an interlocutory order any time before entry of final judgment. See Moses 

H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“every 

order short of a final decree is subject to reopening at the discretion of the district 

judge”). Unlike a motion to reconsider a final judgment, which must meet the 
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requirements of Federal Rules of Civil Procedure 59 or 60, “a motion to 

reconsider an interlocutory order may be entertained and granted as justice 

requires.” Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1160 (N.D. Ind. 

1995). 

Reconsideration might be appropriate when the facts or law on which the 

decision was based change significantly after issuance of the interlocutory order, 

or when “the [c]ourt has patently misunderstood a party, or has made a decision 

outside the adversarial issues presented to the [c]ourt by the parties, or has 

made an error not of reasoning but of apprehension.” Bank of Waunakee v. 

Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). “These 

grounds represent extraordinary circumstances, and . . . a motion to reconsider 

is to be granted only in such extraordinary circumstances . . . Indeed, the court's 

orders are not mere first drafts, subject to revision and reconsideration at a 

litigant's pleasure.” United States Securities and Exch. Comm'n v. National 

Presto Indus., Inc., No. 02–C–5027, 2004 WL 1093390, at *2 (N.D. Ill. Apr. 28, 

2004) (internal quotations omitted). Motions to reconsider serve a limited 

function: “to correct manifest errors of law or fact or to present newly discovered 

evidence.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 

1269 (7th Cir. 1996). A party seeking reconsideration can't introduce new 

evidence or legal theories that could have been presented earlier or simply rehash 

previously rejected arguments. Id. 
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II.DISCUSSION

Lippert asks the court to reconsider its dismissal of the induced and 

contributory infringement claims in the second amended complaint because: (1) 

the court erred when it held that Lippert didn’t adequately plead MORryde’s presuit knowledge of the patents-in-suit; (2) the court erred when it held that Lippert 

didn’t adequately plead MORryde’s post-suit knowledge of the patents-in-suit; 

and (3) the court erred when it dismissed Lippert’s induced and contributory 

infringement claims with prejudice. 

A. MORryde’s Pre-Suit Knowledge of the Patents-in-suit 

Lippert argues that the court was incorrect in concluding that the second 

amended complaint didn’t adequately allege pre-suit knowledge. First, Lippert 

contends that the second amended complaint’s allegation “since at least 2015 

[the d]efendants . . . knew of the [a]sserted [p]atents” meets the pleading 

requirement for pre-suit knowledge of the patents-in-suit. But Lippert made this 

argument in its response to MORryde’s motion to dismiss and at the hearing on 

the motion where the court rejected it, holding it was a conclusory allegation. 

The court declines to address it again. See Caisse Nationale de Credit Agricole v. 

CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (a party seeking 

reconsideration can't simply rehash previously rejected arguments). 

Lippert also asserts that the court overlooked other factual allegations in 

the second amended complaint that support its contention that MORryde knew 

of the patents-in-suit and specifically points to paragraph 21. While the court 
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addressed paragraph 21 when discussing whether the second amended 

complaint’s allegations met the pleading standard, [see Doc. No. 74 at 30], and 

that alone would allow the court to deny this previously raised and rejected 

argument, the court will take this opportunity to address Lippert’s arguments 

more fully than it could in its oral ruling. 

Paragraph 21 reads: 

On information and belief, [d]efendants, as part and in the course of 

their business activities, regularly and actively monitor the 

recreational vehicle industry and competitive intellectual property, 

such as the [a]sserted [p]atents. On information and belief, 

[d]efendants knew of the [a]sserted [p]atents, listed at 

http://www.lci1.com/patent-list, and knew that the Lippert 

Products practiced the [a]sserted [p]atents. 

[Doc. No. 31 at ¶ 21]. Lippert argues that a plaintiff can sufficiently plead 

pre-suit knowledge by alleging that Lippert maintained a list of its patents on a 

website and the parties are competitors who monitor each other’s intellectual 

property.1 Lippert relies heavily on Trading Techs. Int'l, Inc. v. BCG Partners, 

Inc. to support this argument, but in that case the court specifically noted that: 

The Court does not suggest that competitors may plead knowledge 

for the purpose of indirect infringement solely by pleading that the 

competitor would be monitoring the plaintiff's patent filings and any 

patents issued to it. However, that the litigants are competitors in 

the same industry is a fact that makes knowledge of the patent at 

issue more plausible, even if not sufficiently plausible by itself to 

pass muster under Iqbal. 

                                                             1 Lippert notes that a plaintiff can plead knowledge generally, but “the pleadings 

must still allege sufficient facts to support a reasonable inference of that state of mind.” 

Radiation Stabilization Sols. LLC v. Accuray Inc., No. 11-CV-07700, 2012 WL 3621256, 

at *4 (N.D. Ill. Aug. 21, 2012). 
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Trading Techs. Int'l, Inc. v. BCG Partners, Inc., No. 10 C 715, 2011 WL 3946581 

at *4 n.5 (N.D. Ill. Sept. 2, 2011). 

After excluding Lippert’s conclusory allegation that MORryde knew of the 

patents-in-suit since 2015 from the plausibility analysis, McCauley v. City of 

Chicago, 671 F.3d 611, 627 (7th Cir. 2011), the only factual allegations in 

support of the knowledge element are that the companies were competitors and 

MORryde actively monitored intellectual property in the recreational vehicle 

industry.2 The court agrees with Judge Kendall that such allegations don’t make 

knowledge of the patents-in-suit “sufficiently plausible . . . to pass muster under 

Iqbal.” Id. See also MONEC Holding AG v. Motorola Mobility, Inc., 897 F. Supp. 

2d 225, 232 (D. Del. 2012) (“[t]his court has not been convinced of the sufficiency 

of pleadings charging knowledge that is based upon a defendant's participation 

in the same market, media publicity[,] and unrelated litigation by the defendant's 

competitors concerning the relevant patent”); EON Corp. IP Holdings LLC v. FLO 

TV Inc., 802 F. Supp. 2d 527, 533 (D. Del. 2011) (alleging that the defendant has 

knowledge of the patent-in-suit because it is a competitor in a technology 

industry is insufficient to state a claim for induced infringement). 

                                                             2 Lippert argues that the complaint’s allegation that Lippert complied with the 

patent marking requirements of 35 U.S.C. § 287(a) provides factual support for its 

allegation that MORryde had knowledge of the patents-in-suit, but while marking may 

satisfy the notice requirement for damages, alleging marking doesn’t allow the court to 

infer a defendant’s knowledge of the patent-in-suit. See Radware, Ltd. v. A10 Networks, 

Inc., No. C-13-02021-RMW, 2013 WL 5373305, at *2 (N.D. Cal. Sept. 24, 2013). 
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B. MORryde’s Post-Suit Knowledge of the Patents-in-suit 

Lippert next asserts that the court should reconsider its ruling because 

the second amended complaint itself put MORryde on notice of the patents-insuit. Courts are split on whether alleging a complaint itself provides post-suit 

knowledge of the patents-in-suit sufficiently alleges the knowledge element of an 

indirect infringement claim. Compare Trading Techs. Int'l, Inc. v. BCG Partners, 

Inc., No. 10 C 715, 2011 WL 3946581, at *8 (N.D. Ill. Sept. 2, 2011). (where a 

plaintiff pleaded that the lawsuits it had filed gave the defendants notice, the 

court held that there was “no reason why a defendant who is directly infringing 

on a product should avoid liability for an indirect infringement claim when it 

continues to sell the allegedly infringing product and encourages others to 

infringe, simply because it happened to learn of the patent in connection with a 

lawsuit”) with Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681 DOC ANX, 

2012 WL 1835680, at *7 (C.D. Cal. May 16, 2012) (analyzing cases, including 

Trading Techs., and holding that “a complaint fails to state a claim for indirect 

patent infringement where the only allegation that purports to establish the 

knowledge element is the allegation that the complaint itself or previous 

complaints in the same lawsuit establish the defendant's knowledge of the 

patent”). 

The court needn’t decide which line of cases is correct because Lippert’s 

second amended complaint doesn’t allege that the complaint itself provided 

MORryde with knowledge of the patents-in-suit and “[a]llegations not in the 

complaint may not be raised in an attempt to avoid dismissal.” Nolen v. J.P. 
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Morgan Chase & Co., No. 314CV00382HTWLRA, 2016 WL 5794575, at *3 (S.D. 

Miss. Sept. 30, 2016). See also McCauley v. City of Chicago, 671 F.3d 611, 618 

(7th Cir. 2011) (generally a court can only consider the factual allegations in the 

complaint to determine whether the plaintiff has stated a facially plausible 

claim). 

C. Dismissal with Prejudice 

Lippert argues that the court’s misunderstanding of the procedural 

posture of the case caused it to err in dismissing the indirect infringement claims 

with prejudice. Lippert correctly notes that courts should liberally allow 

amendments to the pleadings so that cases may be decided on the merits. See

Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013) (when a court grants a 

motion to dismiss a claim, “the plaintiff should ordinarily be given an 

opportunity, at least upon request, to amend the complaint to correct the 

problem if possible”). But a court needn’t grant leave to amend in every 

circumstance. “[D]istrict courts have broad discretion to deny leave to amend 

where there is undue delay, bad faith, dilatory motive, repeated failure to cure 

deficiencies, undue prejudice to the defendants, or where the amendment would 

be futile.” Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). 

Lippert has filed a complaint and two amended complaints in this case. 

MORryde has responded to each complaint with a Rule 12 motion. Lippert 

contends in its brief that it should be afforded the opportunity to amend its 

complaint for a third time because, according to Lippert, MORryde argued for 
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the first time in its motion to dismiss the second amended complaint that Lippert 

hadn’t properly alleged knowledge of the patents-in-suit. 

As Lippert appears to acknowledge in its reply, MORryde’s motion to 

dismiss the original complaint addressed Lippert’s knowledge allegations, 

asserting that “[s]imply because Lippert has a passive website listing its patent 

is insufficient to support an allegation of knowledge of the patent and of any 

infringement.” [Doc. No. 15 at 11]. Lippert filed an amended complaint in 

response to MORryde’s motion and then filed a second amended complaint 

following another Rule 12 motion, but didn’t remedy the deficiency raised by 

MORryde. The court declines to reconsider its decision to dismiss the indirect 

infringement claims with prejudice because such a dismissal is proper when “the 

plaintiff has repeatedly failed to remedy the same deficiency.” Airborne Beepers 

& Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007) (quoting 

General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th 

Cir. 1997)). 

Lippert also contends in its motion that that newly discovered evidence 

demonstrates that MORryde had actual pre-suit knowledge of the patents-insuit or was willfully blind to them and, therefore, the court should reconsider its 

ruling dismissing the indirect infringement claims and allow Lippert to amend 

its complaint for a third time to prevent manifest injustice.3 Lippert asserts that 

                                                             3 In its brief in support of its motion, Lippert argued that this evidence also 

provided grounds for the court to reconsider its ruling dismissing Lippert’s indirect 

infringement claims. As Lippert appears to recognize in its reply brief, the purpose of a 

Rule 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, so the court 

can’t consider this evidence, which wasn’t included in the complaint, to reconsider 
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opposing counsel recently informed it that MORryde has installed Lippert 

products onto RV chassis, including products that were marked with the patents 

at issue in this case. In a supplement to its motion, [Doc. No. 94], Lippert points 

to deposition testimony by Ryan Kinney where he testifies, among other things, 

that MORryde installed Lippert products. 

The court disagrees that this “newly discovered evidence” provides the 

court with grounds to reconsider its dismissal of Lippert’s indirect infringement 

claims with prejudice, which amounts to denying Lippert the opportunity to file 

a fourth complaint. Lippert acknowledges in its reply that it possessed the 

evidence that it had shipped its products to MORryde. Newly discovered evidence 

doesn’t provide grounds for reconsideration unless the movant “could not with 

reasonable diligence have discovered and produced such evidence during the 

pendency of the motion.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 

90 F.3d 1264, 1269 (7th Cir. 1996). Notwithstanding Lippert’s argument that it 

wasn’t aware that it had this relevant information and shouldn’t be punished for 

being unable to locate it in its voluminous records, it hasn’t demonstrated that 

it couldn’t have produced the evidence with due diligence. For these reasons and 

because nothing else Lippert cites from Mr. Kinney’s testimony persuades this 

court to deviate from its decision to dismiss the indirect infringement claims with 

prejudice, the court declines to reconsider its ruling dismissing the indirect 

infringement claims with prejudice. 

                                                            

whether to dismiss the indirect infringement claims. See Gibson v. City of Chicago, 910 

F.2d 1510, 1520 (7th Cir. 1990). 
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III. CONCLUSION

 Based on the foregoing, the court DENIES the Lippert’s motion to 

reconsider [Doc. No. 80]. 

 SO ORDERED. 

ENTERED: January 10, 2018 

 /s/ Robert L. Miller, Jr. 

 Judge, United States District Court