Simonian v. Maybelline LLC, No. 10 C 1615, Slip Op. (N.D. Ill. Mar. 14, 2011) (Kendall, J.)

Judge Kendall denied defendant Maybelline's motion to dismiss, granted its motion to transfer and denied as moot its motion to stay pending the Federal Circuits standing decision in Stauffer, in this false patent marking case. The Court held, pre-BP Lubricant, that Fed. R. Civ. P. 9(b) pleading applied to the intent element, but because the intent went to state of mind the fraud could be alleged generally, inconsistent with BP Lubricants. Because plaintiff Simonian had generally pled intent, the complaint was sufficient.

The Court then transferred the case to the Southern District of New York, Maybelline's home district. As a relator plaintiff, Simonian's choice of forum was given little deference. And the situs of material facts was where marking decisions were made - New York - not where marked products were bought - Illinois. The Court, therefore, transferred the case.