Opinion
Civil Action H-23-1173
08-15-2023
CONTEGO SPA DESIGNS, INC., Plaintiff, v. T-SPA MFG., LLC and T-SPA DEPOT, LLC and U.S. NAILS SPA, INC., Defendants.
ORDER
LEE H. ROSENTHAL, UNITED STATES DISTRICT JUDGE
Contego Spa Designs sued T-Spa, alleging multiple counts of patent infringement. (Docket Entry No. 1). Contego designs, manufactures, and sells nail salon “spa chairs.” Contego owns Patent No. 9,289,353, covering a pedicure basin with overflow protection. Contego alleged that T-Spa was making, using, and selling pedicure spa products that “include each and every limitation of at least one claim” of the patent. (Docket Entry No. 1 at 5). T-Spa has moved to dismiss, arguing that Contego has not alleged that T-Spa's spa chairs used liners, an element of the patented basins. (Docket Entry No. 27). T-Spa argues that Contego had admitted in the complaint that T-Spa's product was “without liners” and that liners were an essential element of the patented basin. (Docket Entry No. 27 at 8-9). Contego's response to the motion to dismiss argues that there was evidence not included in the complaint that T-Spa's product used liners, and that Contego would be willing to “add[] to the Complaint.” (Docket Entry No. 32 at 9).
The allegations as to T-Spa's use of liners appear central to Contego's claims. The motion to dismiss is denied without prejudice as moot; Contego is ordered to file an Amended Complaint no later than September 29, 2023. This order does not preclude T-Spa from filing a motion to challenge the Amended Complaint.
The motion to dismiss is denied as moot.