NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PING YIP, 

Plaintiff-Appellant, 

v. 

HUGS TO GO LLC AND AUDREY L. STORCH, 

Defendants-Appellees, 

AND

JAAM, LLC, 

Defendant-Appellee. 

__________________________ 

2010-1112 

__________________________ 

Appeal from the United States District Court for the 

District of New Jersey in Case No. 08-CV-4746, Judge 

Katharine S. Hayden. 

___________________________ 

Decided: May 28, 2010 

___________________________ 

PING YIP, of Saddle River, New Jersey, pro se. 

MICHAEL J. BROWN, Michael J. Brown Law Office 

LLC, of Livingston, New Jersey, for defendants-appellees. 

__________________________ 
YIP v. HUGS TO GO 2

Before NEWMAN, RADER AND PROST, Circuit Judges. 

NEWMAN, Circuit Judge. 

The United States District Court for the District of 

New Jersey dismissed the complaint, filed by Ms. Ping 

Yip, on the ground that she failed to meet the standard 

pleading requirements as to defendant Hugs to Go LLC, 

as discussed in Bell Atlantic Corp. v. Twombly, 550 U.S. 

544 (2007), and also that she improperly named Audrey L. 

Storch and JAAM, LLC as defendants in violation of prior 

court orders and on grounds of res judicata. We affirm

the dismissal, as to all defendants. The defendants’ 

motion for sanctions is denied. 

BACKGROUND

Ms. Yip and her company, Wai Yip International, 

have filed several suits against the defendant Storch and 

Storch’s company JAAM and its successor Hugs to Go. 

Hugs to Go was formed when JAAM declared bankruptcy. 

In the present action the complaint charges that Storch 

and Hugs to Go infringed Yip’s U.S. Patent No. 6,641,170 

and U.S. Copyrights No. TXu 1-123-585 and No. TXu 1-

059-189. The charges are based on the defendants’ sales 

of children’s sound-based books that are nearly identical 

to Yip’s patented and copyrighted books entitled “Old 

MacDonald’s Farm” and “ABC.” The defendants moved to 

dismiss on the ground that prior suits filed by Yip barred 

the present action based on res judicata and issue preclusion. 

As to defendant Storch, the district court found that 

“the claims lodged against defendant Storch are no different from the claims plaintiff or her company sought to 

lodge against defendant Storch and/or sought to pursue 

against defendant Storch’s company, J[AAM], LLC, in 

Civ. No. 06-5032(KSH), Civ. No. 08-2370(SDW), and 

Bankruptcy No. 08-13514(DHS).” Order, Sept. 28, 2009; 
3 YIP v. HUGS TO GO

see Wai Yip Int’l Corp. v. JAAM, LLC, No. 06-5032(KSH), 

2007 WL 4200459 (D.N.J. Nov. 26, 2007); JAAM, LLC, 

Bankruptcy No. 08-13514(DHS) (D.N.J. 2009) (unpublished). The court held that all of the patent and copyright claims against Storch are barred on the ground of 

res judicata, and dismissed the complaint as to Storch. 

As to defendant Hugs to Go, the district court ruled 

that the complaint “fails to show that Hugs to Go existed 

at the time of the acts about which plaintiff complains or 

that itself engaged in acts associated with the books that 

plaintiff contends are covered by the patent.” The court 

also held that the complaint did not satisfy Twombly’s 

requirement that a pleading “give the defendant fair 

notice of what the . . . claim is and the grounds upon 

which it rests.” 550 U.S. at 555 (quoting Rule 8(a), Fed. 

R. Civ. P.). The Court explained in Twombly that “a 

plaintiff’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.” Id. Acknowledging Yip’s pro se status, 

the district court granted leave to amend the complaint so 

that she could set forth facts underlying her charges that 

Hugs to Go infringes her patent and copyrights. Order, 

Sept. 28, 2009. 

Yip filed an amended complaint on October 8, 2009. 

Yip included claims against Storch, in contravention of 

the district court’s dismissal of Storch. Yip also added 

JAAM to the complaint as a new defendant, despite the 

district court’s statement that Yip’s claims against JAAM 

were res judicata. As a result, the district court struck 

the amended complaint for failing to comply with the 

court’s September 28 order. Because of her pro se status, 

the district court afforded Yip “one additional opportunity 

to file an Amended Complaint against Hugs to Go.” The 

district court directed that the amended complaint shall 

be directed to “Hugs to Go only” and must “set[] forth the 
YIP v. HUGS TO GO 4

facts that provide a basis to assert that it has violated the 

patent laws by selling the books covered by the patent 

and describe[] the proof upon which the plaintiff will rely 

to support this assertion,” in accordance with Twombly. 

Order, Oct. 14, 2009. 

On October 22, 2009, Yip filed a second amended 

complaint asserting claims against Hugs to Go, and 

including claims against Storch and JAAM, again contravening the district court’s orders. The district court 

struck the second amended complaint, ruling that it did 

not comply with the court’s earlier orders, failed to satisfy 

the Twombly pleading standard as against Hugs to Go, 

and was improper on res judicata grounds as to Storch 

and JAAM. Order, Oct. 29, 2009 (dismissing all claims). 

Yip filed a motion for reconsideration, arguing that the 

district court had improperly dismissed her claims 

against all three defendants. The district court denied 

the motion, stating, among other things, that Yip had not 

shown that the court had overlooked any facts or law, that 

no new evidence had been presented, and that a manifest 

injustice would not occur. This appeal followed. 

DISCUSSION

I 

The defendants question the timeliness of Yip’s appeal, and thus challenge this court’s jurisdiction. See

Bowles v. Russell, 551 U.S. 205 (2007) (timely filing of 

notice of appeal is a jurisdictional requirement); Sofarelli 

Associates, Inc. v. United States, 716 F.2d 1395 (Fed. Cir. 

1983) (appeal must be dismissed for lack of jurisdiction if 

notice of appeal is untimely). Yip filed the Notice of 

Appeal on November 20, 2009, appealing the district 

court’s “order limiting claims against Hugs to Go LLC and 

precluding Plaintiff’s claims against Defendant JAAM 

LLC and Ms. Storch.” The defendants argue that the 

Notice was filed more than 30 days after the September 
5 YIP v. HUGS TO GO

28, 2009 order, and well over a year after the dismissal of 

one of Yip’s prior cases against Storch. However, Yip is 

not appealing any order or judgment from a prior case; 

she is appealing the dismissal of her complaint in the 

present action. The date of dismissal of Yip’s prior lawsuits has no bearing on the timeliness of her appeal in 

this case. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal 

must be filed “with the district clerk within 30 days after 

the judgment or order appealed from is entered”). 

Of the several orders in the present case, all but the 

last order afforded Yip leave to amend her complaint. A 

dismissal with leave to amend is generally not an entry of 

final judgment under 28 U.S.C. §1295. Phonometrics, Inc. 

v. Hospitality Franchise Systems, Inc., 203 F.3d 790, 793 

(Fed. Cir. 2000). In Jung v. K. & D. Mining Co., 356 U.S. 

335, 336-37 (1958), the Court explained: 

We think that the District Court’s order of 

May 27, 1955, denying petitioners’ motion to vacate the order of May 10, 1955, but granting further leave to petitioners to amend their complaint, 

did not constitute the final judgment in the case. 

It did not direct “that all relief be denied” (Rule 58 

of Federal Rules of Civil Procedure, 28 U.S.C.A.) 

but left the suit pending for further proceedings 

“either by amendment of the (complaint) or entry 

of final judgment.” 

The district court’s orders dismissing the complaints but 

granting leave to amend were not final judgments, and 

were not entered as final judgments. Only a final decision 

is appealable, meaning a decision that “‘ends the litigation on the merits and leaves nothing for the court to do 

but execute the judgment.’” Van Cauwenberghe v. Biard, 

486 U.S. 517, 521-22 (1988) (quoting Catlin v. United 

States, 324 U.S. 229, 233 (1945)). 
YIP v. HUGS TO GO 6

The district court’s order of October 29, 2009, dismissing the complaint against all parties with no further leave 

to amend, was the final decision. Yip’s appeal was timely 

filed within 30 days thereafter. 

II 

Yip challenges the dismissal on grounds of res judicata against defendant Storch. Under the law of the 

applicable regional circuit, here the Third Circuit, the 

assertion of res judicata by a party to the prior proceeding 

is entitled to plenary review. Jean Alexander Cosmetics, 

Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 

2006). The party asserting the bar must show that there 

has been a final judgment on the merits in a prior suit 

involving the same parties and that the subsequent suit is 

based on the same cause of action. United States v. 

Athlone Industries Inc., 746 F.2d 977, 983 (3d Cir. 1984) 

(citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 

n.5 (1979)). 

The district court found that the claims now asserted 

are the same as the claims against Storch in Yip v. 

Storch, Civ. No. 08-2370, whose final judgment was the 

dismissal with prejudice of all claims against Storch, by 

order dated July 31, 2008. No appeal was taken from that 

final judgment. Accordingly, the district court correctly 

ruled that Yip is precluded from now reasserting the same 

claims against Storch. 

III 

The district court also precluded Yip from pursuing 

claims against JAAM under the doctrine of collateral 

estoppel, whereby a litigant may be precluded from advancing a position upon “a showing that there has been 

(1) a final judgment on the merits in a prior suit involving 

(2) the same claim and (3) the same parties or their 
7 YIP v. HUGS TO GO

privies.” E.E.O.C. v. U.S. Steel Corp., 921 F.2d 489, 493 

(3d Cir. 1990). 

The prior suits against JAAM were based on the same 

infringement claims, but the plaintiff was Wai Yip International. The district court found that Yip and Yip’s 

company, Wai Yip International, were privies. Privity 

includes relationships “(1) where the nonparty has succeeded to, or shares a concurrent right to the party’s 

interest in, property; (2) where the nonparty controlled 

the prior litigation; and (3) where the party adequately 

represented the nonparties’ interests in the prior proceeding.” Robertson v. Bartels, 148 F. Supp. 2d 443 (D.N.J. 

2001); see Montana v. U.S., 440 U.S. 147, 154 (1979) 

(“[O]ne who prosecutes or defends a suit in the name of 

another to establish and protect his own right, or who 

assists in the prosecution or defense of an action in aid of 

some interest of his own . . . is as much bound . . . as he 

would be if he had been a party to the record.”). 

Yip actively participated in the litigation as the principal agent of her company, and Yip’s interest in those 

actions was identical to those of her company. The district court held that Yip is bound by the prior judicial 

determinations against Wai Yip International, and that 

Yip is estopped from relitigating those claims against 

JAAM. No error has been shown in this ruling, and in the 

dismissal on this ground. 

IV 

In addition, the district court’s dismissal as to Storch 

and JAAM was based on Yip’s failure to comply with the 

court’s orders to remove these defendants from her complaint. Yip twice failed to comply with this directive, 

despite warnings from the court that her complaint would 

otherwise be dismissed. 

Rule 41(b) of the Federal Rules of Civil Procedure 

states that a court may dismiss an action “[f]or failure of 
YIP v. HUGS TO GO 8

the plaintiff . . . to comply with these rules or any order of 

court . . . .” Rule 41(b) dismissals are reviewed on the 

ground of abuse of discretion. Claude E. Atkins Enterprises, Inc. v. United States, 899 F.2d 1180, 1183 (Fed. 

Cir. 1990). An exercise of discretion will not be disturbed 

on appeal “unless upon a weighing of relevant factors we 

are left with a definite and firm conviction that the court 

below committed a clear error of judgment.” Adkins v. 

United States, 816 F.2d 1580, 1582 (Fed. Cir. 1987) (internal quotation marks omitted). Here, Yip was given two 

opportunities to comply with the district court’s order and 

was warned of the consequences. We discern no abuse of 

the district court’s discretion in striking Yip’s amended 

complaint, as to Storch and JAAM, for failing to follow the 

court’s orders. 

V 

The district court dismissed Yip’s claims against Hugs 

to Go for failing to meet the pleading standard of Rule 

8(a)(2) of the Federal Rules of Civil Procedure which 

requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give 

the defendant fair notice of what the . . . claim is and the 

grounds upon which it rests.” Dismissal under Rule 8(a) 

is a procedural action not specific to patent law, and is 

reviewed in accordance with the procedural law of the 

regional circuit. McZeal v. Sprint Nextel Corp., 501 F.3d 

1354, 1355-56 (Fed. Cir. 2007). The Third Circuit reviews 

de novo a dismissal for failure to comply with Rule 8(a)(2). 

McTernan v. City of York, Pa., 577 F.3d 521, 526 (3d Cir. 

2009). 

In general, the pleadings of pro se litigants are held to 

a lesser standard than those drafted by lawyers, when 

determining whether a complaint should be dismissed for 

failure to meet the requirements of the statement of 

claim. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); see
9 YIP v. HUGS TO GO

Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding a pro 

se complaint to “less stringent standards than formal 

pleadings drafted by lawyers”). 

The district court ruled that Yip’s second amended 

compliant did not identify any specific, factual claim 

against Hugs to Go. Yip’s second Amended Complaint 

(dated Oct. 22) attempted to incorporate by reference facts 

stated in and evidence appended to her first Amended 

Complaint (dated Oct. 8), which had been struck by the 

district court. It seems clear that Yip was trying to include materials from the earlier complaint in her

amended pleading. These materials included: 

• Printouts from the Hugs to Go website 

showing the alleged infringing products 

being sold after the bankruptcy proceeding 

had been initiated (Exhibit 2, Appellant’s 

Informal Brief); 

• Affidavits and emails from those who 

purchased the alleged infringing products 

from Ms. Storch after JAAM filed for 

bankruptcy (Exhibit 3, Appellant’s Informal Brief); and 

• An expert report by an attorney documenting the identical nature of the products and including a claim chart 

(Appendix to Brief for Plaintiff-Appellant). 

The district court did not mention any of these materials, apparently deeming them absent since neither their 

contents nor significance were described in the first 

amended complaint and because the complaint had been 

struck. In her first amended complaint, Yip’s only reference to the attached documents can be derived from the 

statement: “8. Hugs to Go LLC, the new company for 

Audrey L. Storch still continues to sell Plaintiff’s books 

after JAAM, LLC bankruptcy (Evidence Submitted in 
YIP v. HUGS TO GO 10

Case No 08-4746(KSH))” (where the “Evidence” is referring to the appended materials). In her second amended 

complaint, Yip does specifically reference a telephone 

transcript that was appended to the first amended complaint, but she does not explain its contents or significance. 

The district court continued to find the complaints inadequate, for Yip did not describe, explain, or particularly 

reference facts in her pleadings, despite the guidance of 

the district court. In the second amended complaint Yip 

did not plead facts to establish that Hugs to Go existed at 

the time of the alleged acts or that Hugs to Go itself 

engaged in infringing acts. Yip was afforded several 

opportunities for correcting the deficiencies in the complaint. We agree with the district court that, as twice 

amended, Yip’s complaint still did not meet the pleading 

requirements of Rule 8(a)(2) as explained in Twombly. 

Although we recognize the obstacles confronting a pro se

litigant, we conclude that the district court’s actions of 

dismissal were in accordance with law. 

CONCLUSION

The district court’s dismissal of the complaint is affirmed. The defendants’ motion for sanctions is denied. 

Each party shall bear its costs. 

AFFIRMED