The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ
Defendants North American Power Technology, Inc. ("NAPT") and Peter Lo ("Lo") have moved to dismiss this action for lack of subject matter jurisdiction. For the following reasons, defendants motion will be GRANTED.
Plaintiff, Levent Yuksel ("Yuksel"), a Pennsylvania resident, invented a product which is patent pending in both the United States Patent & Trademark Office and the United States Patent Office. See Complaint at PP 1, 3, 4. Defendants are NAPT, a Pennsylvania corporation, and Lo, apparently a Pennsylvania resident, and president of NAPT. See Complaint at PP 2, 6, 9. Lo and Yuksel are business partners in NAPT. In Count I of his complaint, Yuksel alleges that Lo had Yuksel sign an assignment form that Lo had drafted, which apparently assigned Yuksel's rights in his invention to Lo and NAPT. Yuksel further states that as he is unable to read and write English, he signed the form relying on Lo's explanation that the assignment was some other business transaction. Yuksel alleges Lo intentionally misrepresented the form, that Yuksel did not wish to assign his rights in his invention, and that Yuksel would not have signed the form had he known what it actually was. In Count II of his complaint, Yuksel alleges he received no consideration in exchange for the assignment. Finally in Count III of his complaint, Yuksel alleges Lo acted outside the scope of his fiduciary duty he had with Yuksel as president of NAPT by diluting Yuksel's interest in NAPT by diluting the company's stock. To remedy his claims, Yuksel seeks a temporary restraining order ("TRO") against both defendants to prohibit the recording of the assignment; to prohibit further production, use, or ale of the plaintiff's patent pending product; and to hold the assignment null and void. Yuksel maintains this court has jurisdiction pursuant to 28 U.S.C. § 1338. Defendants responded to the complaint with a motion to dismiss for lack of subject matter jurisdiction.
A. Rule 12(b)(1) Standard
Federal Rule of Civil Procedure 12(b)(1) requires federal courts to dismiss actions if the courts lack subject matter jurisdiction. A Rule 12(b)(1) motion may take one of two forms: "12(b)(1) motions that attack the complaint on its face [a facial attack] and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings [a factual attack]." Mortensen v. First Federal Sav. and Loan Assn., 549 F.2d 884, 891 (3d Cir. 1977). The facial attack requires the court to consider the allegations of the complaint as true. See id. Furthermore, the burden of proving jurisdiction exists rests with the party asserting jurisdiction. See United States v. Nicolet, Inc., 17 Envtl. L. Rep. 21,088 (E.D.Pa. 1987).
Here, despite the defendant's representation that its motion is a factual attack, the 12(b)(1) lotion is a facial attack since no affidavits, depositions, or other factual matters have been presented for this court consideration of this motion. See International Assn. of Machinists v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982); see also Nicolet, supra. Indeed, the only relevant papers filed in this case as of this date are the complaint and defendant's motion to dismiss. See Mortensen, supra at 891-92 & n.17 (noting a factual attack made be asserted any time from after the answer has been served and hat a factual jurisdictional proceeding cannot occur until the plaintiff's allegations have been controverted). This court, therefore, will view the allegations in the complaint as true in deciding this motion.
B. 28 U.S.C. § 1338 Standard
(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.
(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when join with a substantial and related claim under the copyright, ...