8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported):    September 17, 2010

Smartmetric, Inc.

(Exact name of registrant as specified in its charter)

Nevada (State or other jurisdiction of incorporation)	333-118801 (Commission File Number)	05-0543557 (I.R.S. Employer Identification No.)
1150 Kane Concourse, Suite 400 Bay Harbor Islands, FL 33154 (Address of principal executive offices) (zip code)
(305) 495-7190 (Registrant’s telephone number, including area code)
	Not Applicable
(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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Item 8.01                      Other Events.

On July 27, 2010, Smartmetric, Inc. (the “Company”) filed a second amended complaint (the “Amended Complaint”) in the United States District Court, Central District of California (the “Court”), Case No. 2:10-cv-01864, against MasterCard, Inc. and Visa, Inc. (collectively, the “Defendants”) alleging patent infringement on the Company’s patent, U.S. Patent 6,792,464 (the “’464 Patent”).  On August 12, 2010, Defendants filed a Joint Motion to Dismiss the Company’s Amended Complaint.  On September 16, 2010, the Court denied Defendants’ Motion to Dismiss.

Item 9.01                      Financial Statements and Exhibits.

(d)           Exhibits

99.1 Order Denying Defandants’ Motion to Dismiss, filed September 17, 2010 in the United States District Court, Central District of California.

99.2 Scheduling Order for Rule 26 Joint Report Deadline filed September 17, 2010 in the United States District Court, Central District of California.

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: September 21, 2010	SMARTMETRIC, INC.
	By:	/s/ Colin Hendrick
	Name:	Colin Hendrick
	Title:	Chief Executive Officer

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EX-99.1

Exhibit 99.1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SMARTMETRIC INC., a Nevada	)	Case No. 2:10-cv-01864-JHN-FMOx
corporation,	)
	)
	)
Plaintiff,	)	ORDER DENYING DEFENDANT’S
	)	MOTION TO DISMISS
vs.	)
	)
	)
MASTERCARD INCORPORATED a	)
Delaware corporation, and VISA,	)
INC., a Delaware corporation,	)
	)
	)
Defendants.	)

This matter is before the Court on Defendants MasterCard, Inc. and Visa, Inc.’s Joint Motion to Dismiss Second Amended Complaint (docket no. 22), filed on August 12, 2010. The Court has read and considered the moving, opposition, and reply documents submitted in connection with the motion. The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Accordingly, the hearing set for September 27, 2010, is removed from the Court’s calendar. For the reasons set forth below, the Motion to Dismiss is DENIED.

I. BACKGROUND

This action arises out of Defendants MasterCard Incorporated (“MasterCard”) and Visa, Inc.’s (“Visa”) (collectively “Defendants”) use of “contactless card systems” that Plaintiff SmartMetric Inc. (“Plaintiff” or “SmartMetric”) alleges infringe one or more claims of Plaintiff’s patent for a “System for Automatic Connection to a Network.” (SAC ¶ 13)

In its First Amended Complaint (“FAC”), Plaintiff alleged in a general and conclusory fashion that Defendants “are infringing U.S. Patent 6,792,464 (the “‘464 patent”) . . . by selling, offering to sell and using contactless card systems, e.g., systems like [Visa]’s Paywave and [MasterCard]’s PayPass, that use datacards that, when passed near to a reader, help to establish connection to a network (the “Systems”), that infringe at least claim 1 of the ‘464 patent.” (FAC ¶ 1; emphasis added.) A copy of the ‘464 patent was filed as an attachment to the FAC.

On July 8, 2010, the Court dismissed the FAC without prejudice. (Docket no. 19). In that Order, the Court dismissed the FAC on two grounds: 1) Plaintiff’s allegations failed to identify adequately which of Defendants’ products or components of Defendants’ products alleged to do what the ‘464 patent does; and 2) The allegations in the FAC, taken together with the attached copy of the ‘464 patent, were not sufficient to put Defendants on notice of the nature of the claim against which they must defend. (July 8, 2010 Order at 3:8–4:20.) Plaintiff filed a Second Amended Complaint (“SAC”) on July 27, 2010. (Docket no. 21.) Defendants filed the instant Motion to Dismiss on August 12, 2010. (Docket no. 22.) Plaintiff filed an Opposition. (Docket no. 24.) Defendants filed a Reply. (Docket no. 27.)

II. APPLICABLE LEGAL STANDARD

A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in a complaint. Dismissal

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pursuant to Rule 12(b)(6) is proper only where there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, a court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be read in the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Sprewell, 266 F.3d at 988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007); Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir. 1994) (explaining that courts are “not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot be reasonably drawn from the facts alleged”).

In ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint, e.g., facts presented in briefs, affidavits, or discovery materials. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). A court may, however, consider exhibits submitted with the complaint, as well as documents that are referred to in the complaint whose authenticity no party questions. Id.; Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000).

III. DISCUSSION

Defendants again move for dismissal on the ground that the FAC lacks

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sufficient factual allegations to articulate a claim for patent infringement. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009) (“A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). A motion to dismiss pursuant to Rule 12(b)(6) “is a purely procedural question not pertaining to patent law.” McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007).

A. Claim 1

Claim 1 of the ‘464 patent is for a “computer system for allowing a user to automatically access one of a plurality of network service providers[.]” (SAC ¶ 2.) This system is accessed via a data card which contains the information specific to the user and/or the network service provider. (Id.) According to the SAC, “[t]he two accused systems, [VISA’s] Paywave and MC’s PayPass, are such computer systems.” (Id.) The SAC alleges that they “permit users with contactless data cards, which contain information specific to the users and/or the network service provider to be accessed, to access such networks by passing such data cards near to a data card reader that is part of such systems.” (Id.) “[A]mong the network service providers at issue are CIRRUS and INTERLINK, which provide connectivity to bank servers via processing network switches[.]” (Id.)

Defendants argue that this Claim should be dismissed as implausible because “CIRRUS and INTERLINK refer to ATM networks, not POS networks. Moreover, ATMs have not been implemented in this country to include data card readers that will accept the contactless feature of the PayPass and PayWave cards.”1 (Motion to Dismiss at 7:19–21.) The Court, however, need not at this

1 The Court rejected a similar argument in its July 8, 2010 Order, declining to “take up the question of whether the language in Claim 1 of the ‘464 patent would preclude relief on the ground that Defendants’ contactless card systems do not require an “insertion” of a data card into a data card reader.’” (July 8, 2010 Order at 4:4–7.)

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early stage in these proceedings, resolve this question, because it must “accept as true all material allegations in the complaint[.]” Balistreri, 901 F.2d at 699. The factual problems raised by Defendants may very well be true, but at this point the Court has no information to resolve this factual dispute. Moreover, these fact-specific inquiries are properly addressed at a later stage in these proceedings, after sufficient discovery has been conducted. Defendants present no other challenge to Claim 1 and their Motion to dismiss allegations related to this claim is DENIED.

B. Claim 14

Claim 14 of the ‘464 patent is similarly for “[a] method for allowing a user to automatically access one of a plurality of network service providers which require information specific to the user and/or the network service provider to be accessed[.]” (SAC ¶ 3.) The two accused systems—Paywave and PayPass—allegedly “embody methods that allow a user to automatically access one of a plurality of network service providers which require information specific to the user and/or the network service provider to be accessed.” (Id.) Defendants contend that this count is insufficiently pled because it fails to identify a network service provider. Defendants’ argument is that because the system at issue contains multiple components—a data card, a data card reader, a network, and a designated network provider—the omission of one of these is contrary to the Court’s prior Order. The Court disagrees. Both Claim 1 and Claim 1 4 identify a “plurality” of networks that the products at issue could employ to function according to their purpose. The fact that Plaintiff happened to name the network in Claim 1, but not in 14, is not fatal to their SAC. Accordingly, the Motion to Dismiss the Claim 14 allegations is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss Second Amended Complaint (docket no. 22) is DENIED.

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IT IS SO ORDERED
Dated: September 16, 2010	/s/ JACQUELINE H. NGUYEN
	JACQUELINE H. NGUYEN, JUDGE
	UNITED STATES DISTRICT COURT

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EX-99.2

Exhibit 99.2

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SmartMetric Inc.,	)	2:10-cv-01864-JHN-FMOx
	)
Plaintiff(s)	)
	)	SCHEDULING ORDER FOR
v.	)	RULE 26 JOINT REPORT
	)	DEADLINE
MasterCard Incorporated et al.,	)
	)
Defendant(s).	)
	)	Deadline to File Joint Report:
	)	October 15, 2010

READ THIS ORDER CAREFULLY. IT DIFFERS IN SOME RESPECTS

FROM THE LOCAL RULES.

This case has been assigned to Judge Jacqueline H. Nguyen. For initial case management in accordance with Rule 16(b) and Rule 26 of the Federal Rules of Civil Procedure, Judge Nguyen will review the Joint Report filed by counsel in accordance with Rule 26(f) and will issue a Trial Order thereafter. Generally, no scheduling conference hearing is set, but counsel will be notified if the Court deems a scheduling conference hearing is necessary.

If plaintiff has not already served the operative complaint on all defendants, plaintiff shall promptly do so and shall file proofs of service within three days

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thereafter. Defendants also shall timely serve and file their responsive pleadings and file proofs of service within three days thereafter. For record-keeping purposes, the Court will dismiss all remaining fictitiously-named defendants (i.e., those who have not been named) in the trial order issued. The Court will also set a date by which motions to amend the pleadings or add parties must be heard.

The parties are reminded of their obligations under Rule 26(a)(1) to disclose information (without awaiting a discovery request), and under Rule 26(f) to confer on a discovery plan and to file a “Joint Rule 26(f) Report” with the Court not later than the deadline set by the Court. Failure to comply with the following requirements or to cooperate in the preparation of the Joint Rule 26(f) Report may lead to the imposition of sanctions.

Counsel should begin to conduct discovery actively prior to the due date for the Report, and at the very least, the parties shall comply fully with the letter and spirit of Rule 26(a) and thereby obtain and produce most of what would be produced in the early stage of discovery, because with its Trial Order, the Court will impose deadlines to complete discovery.

This Court does not exempt parties appearing in propria persona from compliance with any of the Local Rules, including Local Rule 16. “Counsel,” as used in this order, includes parties appearing in propria persona.

1. Joint Rule 26(f) Report

The Joint Rule 26(f) Report, which shall be filed by the deadline set on the caption of this order, shall be drafted by plaintiff (unless the parties agree otherwise), but shall be submitted and signed jointly. “Jointly” contemplates a single report, regardless of how many separately-represented parties there are. The Joint Rule 26(f) Report shall report on all matters described below, which include those required to be discussed by Rule 26(f) and Local Rule 26:

a.  Statement of the case: a short synopsis (not to exceed two pages) of the main claims, counterclaims, and affirmative defenses.

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b.	Subject matter jurisdiction: a statement of the specific basis of federal jurisdiction, including supplemental jurisdiction.
c.	Legal issues: a brief description of the key legal issues, including any unusual substantive, procedural, or evidentiary issues.
d.	Parties, evidence, etc.: a list of parties, percipient witnesses, and key documents on the main issues in the case. For conflict purposes, corporate parties must identify all subsidiaries, parents, and affiliates.
e.	Damages: the realistic range of provable damages.
f.	Insurance: whether there is insurance coverage, the extent of coverage, and whether there is a reservation of rights.
g.	Motions: a statement of the likelihood of motions seeking to add other parties or claims, file amended pleadings, transfer venue, etc.
h.	Manual for Complex Litigation: whether all or part of the procedures of the Manual for Complex Litigation should be utilized.
i.	Status of Discovery: a discussion of the present state of discovery, including a summary of completed discovery.
j.	Discovery Plan: a detailed discovery plan, as contemplated by Rule 26(f), including the identity of all anticipated deponents and dates by which their depositions are to be completed (if possible), anticipated written discovery requests, including requests for admission, document requests, and interrogatories, and a schedule for completion of all discovery. State what, if any, changes in the disclosures under Rule 26(a) should be made, the subjects on which discovery may be needed and whether discovery should be conducted in phases or otherwise be limited, whether applicable limitations should be changed or other limitations imposed, and whether the Court should enter other orders. A statement that discovery will be conducted as to all claims and defenses, or other vague description, is not acceptable.

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k.	Discovery cut-off: a proposed discovery cut-off date. This means the final day for completion of discovery, including resolution of all discovery motions.
l.	Expert discovery: proposed dates for expert witness disclosures (initial and rebuttal) and expert discovery cut-off under Rule 26(a)(2).
m.	Dispositive motions: a description of the issues or claims that any party believes may be determined by motion for summary judgment or motion in limine.
n.	Settlement: a statement of what settlement discussions or written communications have occurred (excluding any statement of the terms discussed) and a statement pursuant to Local Rule 16-15.4 selecting a settlement mechanism under that Rule. Note: If a case is selected for the ADR Pilot Program, the parties may choose private mediation (at their own expense) instead. The parties may not choose a settlement conference before the magistrate judge. No case will proceed to trial unless all parties, including the principals of all corporate parties, have appeared personally at a settlement conference.
o.	Trial estimate: a realistic estimate of the time required for trial and whether trial will be by jury or by court. Each side should specify (by number, not by name) how many witnesses it contemplates calling. If the time estimate for trial given in the Joint Rule 26(f) Report exceeds four court days, counsel shall be prepared to discuss in detail the estimate.
p.	Trial counsel: the name(s) of the attorney(s) who will try the case.
q.	Independent Expert or Master: whether this is a case where the Court should consider appointing a master pursuant to Rule 53 or an independent scientific expert. (The appointment of a master may be especially appropriate if there are likely to be substantial discovery disputes, numerous claims to be construed in connection with a summary judgment motion, a lengthy Daubert hearing, a resolution of a difficult computation of damages, etc.)
r.	Timetable: complete the Schedule of Pretrial and Trial Dates form attached as Exhibit A to this Order and attach it to the Joint Rule 26(f) Report. The entries in the “Weeks Before Trial” column reflect what the Court believes are generally appropriate for most cases and will allow the Court to rule on potentially dispositive motions sufficiently in advance of the pretrial conference. The form is designed to enable counsel to ask the Court to set different dates by which the key requirements must be completed. Each side should write in the month, day, and year it requests for each event. E.g., for the expert discovery cut-off it might be “1/11/10” for plaintiff and “1/25/10” for defendant, if they cannot agree. Each entry proposing Court dates shall fall on a Monday, except the trial date, which is a Tuesday. Cou nsel should ensure that requested dates do not fall on a holiday. The discovery cut-off date is the last day by which all depositions must be completed, responses to previously-served written discovery must be provided, and motions concerning discovery disputes must be heard. The cut-off date for motions is the last date on which motions may be heard, not filed.
s.	Other issues: a statement of any other issues affecting the status or management of the case (e.g., unusually complicated technical or technological issues, disputes over protective orders, extraordinarily voluminous document production, non-English speaking witnesses, ADA-related issues, discovery in foreign jurisdictions, etc.) and any proposals concerning severance, bifurcation, or other ordering of proof.

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The Joint Rule 26(f) Report should set forth the above-described information under section headings corresponding to those in this Order.

2. Notice to be Provided by Counsel

Plaintiff’s counsel or, if plaintiff is appearing pro se, defendant’s counsel, shall provide this Order to any parties who first appear after the date of this Order and to parties who are known to exist but have not yet entered appearances.

3. Disclosures to Clients

Counsel are ordered to deliver to their respective clients a copy of this Order and of the Court’s trial order, which will contain the schedule that the Court sets at the scheduling conference.

4. Court’s Website

Copies of this and all other orders of this Court that may become applicable to this case are available on the Central District of California website, at www.cacd.uscourts.gov, under “Judge’s Procedures and Schedules.” Copies of the Local Rules are available on the website.

The Court thanks the parties and their counsel for their anticipated cooperation in complying with these requirements.

IT IS SO ORDERED
Dated: September 16, 2010	/s/ JACQUELINE H. NGUYEN
	JACQUELINE H. NGUYEN,
	UNITED STATES DISTRICT JUDGE

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SCHEDULE OF PRETRIAL AND TRIAL DATES

CASE NAME:

CASE NO:

Matter	Time	Weeks before trial	Plaintiff(s) Request	Defendant(s) Request	Court Order
Trial (jury)(court) (length ___days) (Tuesday)	9:00 am
For Court Trial		3
Lodge Findings of Fact and Conclusions of Law, LR 52, and Summaries of Direct Testimony
Pretrial Conference, LR 16; Hearing on Motions in Limine	10:30 am	4
For Jury Trial		6
Lodge Pretrial Conference Order, LR 16-7; File Agreed Set of Jury Instructions and Verdict Forms; File Statement Regarding Disputed Instructions, Verdicts, etc.; File Oppositions to Motions in Limine
For Jury Trial		7
File Memo of Contentions of Fact and Law, LR 16-4; Exhibit & Witness Lists, LR 16-5,6; File Status Report Regarding Settlement; File Motions in Limine
Last date to conduct Settlement Conf., LR 16-15		12
Last day for hearing motions, LR 7		14
Non-expert Discovery Cut-off
Expert Disclosure (initial)
Expert Disclosure (rebuttal)
Expert Discovery Cut-off
Last Date to Amend Pleadings or Add Parties

LR 16-15 Settlement Choice:	o	1. USMJ (not available for cases in ADR Pilot Program)	o	3. Outside ADR
	o	2. Attorney Settlement Panel

Exhibit A

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