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United States District Court, Western District of Pennsylvania

September 5, 2003


The opinion of the court was delivered by: Francis Caiazza, Chief Magistrate Judge



For the reasons stated below, it is respectfully recommended that the Defendants' "Motion to Dismiss, Or, In the Alternative, For a More Definite Statement" (Doc. 5) be denied as consistent with the discussions below.



The Plaintiff ASIRobican Inc., formerly known as Robicon Corporation ("the Plaintiff" or "Robicon"), is a Pennsylvania corporation in the business of "manufacturing power controllers and variable speed drives." See generally Compl. at ¶¶ 1, 5. It brings suit in diversity against the English limited liability companies Rolls-Royce plc and Rolls-Royce Power Engineering plc (collectively, "the Defendants" or "Rolls-Royce"). See generally Page 2 id. at ¶ 3; Defs.' Br. (Doc. 6) at 3. Certain other corporate entities, although not named as parties, also are identified in the Complaint: Robicon's "sister corporation," Anasaldo Sistemi Industriali SpA, headquartered in Milan, Italy (hereinafter "ASIRobicon Italy");*fn1 Hill Graham Controls ("Hill Graham"), a subsidiary of ASIRobicon Italy based in England and "principally overseen by Robicon"; Peter Rogers ("Mr. Rogers"), the former managing director of Hill Graham; and Alstom Power Controls ("Alstom"), an apparently unrelated company the Plaintiff and/or ASIRobicon Italy sought to acquire. See generally Compl. at ¶¶ 6, 7, 13, 27, 28.*fn2

Robicon's claims stem from a proposed partnership or "business cooperation" between the above-listed entities. See generally id. at ¶¶ 13, 15. The Complaint alleges that, in May 2001, Rolls Royce approached ASIRobicon Italy and Hill Graham regarding: their proposed "supply [of] complete electrical systems for Rolls-Royce's marine business"; a contemplated "partnership in the development of electronic equipment"; and Page 3 Rolls-Royce's "purchase of a portion of [the] power conversion business . . . ASIRobicon was seeking to acquire" from Alstom. See id. at ¶ 13.

As a result of Rolls-Royce's inquiry, representatives of the Defendants, Robicon, and ASIRobicon Italy met in May and June 2001 to discuss their potential business cooperation. See id. at ¶ 15. These meetings took place in London, England and in New Kensington, Pennsylvania, the Plaintiff's principal place of business. See id.; see also generally id. at ¶ 1.

The Complaint alleges that, "[a]fter the discussion progressed beyond initial inquiries," Rolls-Royce, ASIRobicon Italy and the Plaintiff entered into a written confidentiality agreement on March 19, 2002 ("the Confidentiality Agreement" or "the Agreement"). See id. at ¶ 17; see also Confid. Agreement (attached as Ex. A to Defs.' Br.).*fn3 The Agreement contemplated that the parties would disclose confidential information in Page 4 "evaluating and negotiating" their potential business cooperation, and they agreed that such information would be "used solely for [that] purpose." See Compl. at ¶ 18; see also Confid. Agreement at ¶ 1. The Agreement also forbade the parties from initiating discussions with each others' "director[s], officer[s] or employee[s]" for the purposes of soliciting their employment. See Compl. at ¶ 21; Confid. Agreement at ¶ 6.

The Plaintiff alleges that, between April and November 2002, ASIRobicon Italy, Hill Graham and Robicon disclosed to Rolls-Royce "confidential and unpublished information, proprietary information, and trade secrets regarding [their] business operation[s] and future plans." See Compl. at ¶ 22. The Complaint alleges that such information was disclosed, among other places, at Robicon's facility in New Kensington, Pennsylvania. See id. at ¶ 25.

As the parties' negotiations progressed, the Plaintiff's participation in the proposed business cooperation became more clear. Cf. generally id. at ¶ 27. Among other things, it was contemplated that Robicon "would become a regular supplier" of Rolls-Royce's "electric drive needs," the two companies would "cooperate in current and future product development," and Robicon would sell to Rolls-Royce a portion of Alstom's operations and/or stock if the company was acquired. See id. Page 5 Through the course of the negotiations, the Defendants became acquainted with Hill Graham's managing director Mr. Rogers. See id. at 28. The Plaintiff alleges that Mr. Rogers "was intimately involved with, had access to, and was exposed to" the confidential information of ASIRobicon Italy, Hill Graham and Robicon. See generally id. at ¶ 29; cf. also generally id. at ¶ 12 ("[b]eing part of the same group of companies, Robicon, ASIRobicon [Italy] and Hill Graham share[d] the same database of technical and commercial information").
The negotiations "proceed[ed] toward a conclusion," with the parties having "exchanged draft agreements outlining the cooperation" described above. See id. at ¶ 35. On November 8, 2002, however, Rolls-Royce "suddenly announced that it was withdrawing from the proposed cooperation." See id. at ¶ 36. Although the Defendants remained interested in "the total acquisition of Hill Graham," Robicon and ASIRobicon Italy declined said proposal. See id.

The Plaintiff alleges that, after the proposed business deal fell through, Rolls-Royce "decided that it would . . . ease its entry into [the marine electrical products and systems] market by improperly utilizing the [c]onfidential [i]nformation that was disclosed . . . during the prior confidential negotiations and by improperly soliciting" Mr. Rogers' employment. Page 6 See generally id. at ¶ 39. Mr. Rogers has since accepted employment with Rolls-Royce, and the Plaintiff "believe[s] and therefore aver[s]" that the Defendants have or will use his services "to trade upon Robicon's goodwill" and draw upon its confidential information. See generally id. at ¶¶ 44-48.

Based on these and other allegations, the Plaintiff asserts five causes of action against the Defendants: "Misappropriation of Trade Secrets and Confidential Information" (Count I); "Breach of Duty of Confidentiality" (Count II); "Civil Conspiracy" (Count III); "Unfair Competition" (Count IV); and "Tortious Interference with Prospective Economic Advantage" (Count V). In its Prayer for Relief, the Plaintiff requests an award of "actual and compensatory damages," a disgorging of wrongfully obtained profits, and interest and attorneys' fees. See id.

In their Motion to Dismiss, the Defendants argue: (a) the court lacks personal jurisdiction over Rolls-Royce; (b) venue does not lie in this judicial district; and (c) the Plaintiff's claims fail under Federal Rule 12(b)(6). See generally Defs.' Br. In the alternative, Defense counsel requests that the Plaintiff be ordered to make a more definite statement. See id.

The briefing on the Defendants' Motion has come to a close, and it is now ripe for adjudication.


A. The Plaintiff Has Proffered Sufficient Facts to Defeat the Defendants' Challenge to Personal Jurisdiction.

In determining whether personal jurisdiction exists over a defendant, "a federal court sitting in diversity must undertake a two-step inquiry[:] [f]irst, the court must apply the relevant state long-arm statute to see if it permits the exercise of personal jurisdiction; then, the court must apply the precepts of the Due Process Clause of the Constitution." See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 258-59 (3d Cir. 1998) (emphasis added). Because the parties fail to address Pennsylvania's long-arm statute, the court should presume that they correctly realize the statute presents no impediment here. See Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 & n. 1 (3d Cir. 1998) (holding, as should District Court, that defendants qualified under both "[the] `tort out/harm in' provision[,] which extends personal jurisdiction to anyone who [c]aus[es] harm or tortious injury in th[e] Commonwealth by an act or omission outside th[e] Commonwealth," and section stating "that jurisdiction extends . . . to the fullest extent allowed under the Constitution of the United States") (citations and most internal quotations omitted). Thus, the proper inquiry is whether the exercise of personal jurisdiction is constitutional. See generally id. at 200 (citations omitted).

The District Court's inquiry further may be narrowed to whether Page 8 "specific jurisdiction" exists over Rolls-Royce.*fn4 Specific jurisdiction "stands in contrast to `general jurisdiction,' which [requires] a defendant's contacts with the forum [to be] continuous and systematic." See Pinker v. Roche Holdings Ltd., 292 F.3d 361, 369 n. 1 (3d Cir. 2002) (citations and some internal quotations omitted, emphasis added). Defense counsel has shown, and the Plaintiff has failed to meaningfully refute, that Rolls-Royce's contacts with Pennsylvania fall short of the continuous and systematic activity required for general jurisdiction. See Defs.' Br. at 6 (Rolls-Royce is not licensed to do business in Pennsylvania, and has no offices, employees, property or bank accounts therein). General jurisdiction is lacking, so the court may restrict its inquiry to specific jurisdiction.

The specific jurisdiction analysis focuses on "the relationship among the defendant[s], the forum, and the litigation." See Pinker, 292 F.3d at 368 (citation omitted). The relevant inquiry is the degree to which "the plaintiff's cause of action is related to or arises out of the defendant's contacts with the forum." See id. (citations omitted). Specific Page 9 jurisdiction will be found "only if the plaintiff's cause of action arises out of [the] defendant's forum-related activities, such that the defendant should reasonably anticipate being haled into court in that forum." See Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (citations and internal quotations omitted, emphasis added). Once a defendant challenges the exercise of personal jurisdiction, the plaintiff bears the burden of demonstrating facts to establish the same. See generally Pinker, 292 F.3d at 368 (citation omitted). In reviewing those facts, however, the court "must accept [them] . . . as true and construe [those that are] disputed . . . in favor of the plaintiff." See id. (citation and internal quotations omitted).

Robicon has identified sufficient facts to defeat the Defendants' jurisdictional challenge. As seen above, all of the Plaintiff's claims arise out of a proposed business cooperation between Rolls-Royce and a family of corporations affiliated with Robicon. See generally discussion supra. The Plaintiff was involved in the negotiations, and it was expected to directly participate in the cooperative effort. See id. Thus, Rolls-Royce knowingly negotiated, and anticipated doing business with, a corporation formed under the laws of Pennsylvania. See id.

In addition, the Plaintiff has submitted a sworn affidavit stating that several Rolls-Royce executives made multiple visits Page 10 to Robicon's facility in New Kensington, Pennsylvania to discuss and negotiate the prospective business arrangement. See Affid. of A. Aleithe (Doc. 10) at ¶¶ 8, 9, 14, 15, 16. Not only did Rolls-Royce's agents negotiate in Pennsylvania, they also allegedly were made privy to Robicon and its affiliates' confidential information during their visits. See id. at ¶¶ 8, 9 (discussing "early meetings" in May and June 2001 in New Kensington, and meeting on June 21, 2001 "to discuss the possible [business] corporation") and id. at ¶¶ 14, 15, 16 (Rolls-Royce agents received confidential information during visit to Robicon's New Kensington facility in September 2002, in Pittsburgh and New Kensington on Sept. 4 and 5, 2002, and in Pittsburgh on Oct. 14 and 15, 2002).*fn5

The precedent confirms that such contacts are sufficient under the law. Rolls-Royce had substantial "physical contacts with the forum," having numerous times sent its executives to Pennsylvania to discuss the proposed business arrangement. See generally General Elec. Co. v. Deutz Ag, 270 F.3d 144, 150 (3d Cir. 2001) ("[s]pecific jurisdiction frequently depends on Page 11 physical contacts with the forum," and "[a]ctual presence during pre-contractual negotiations" supports finding of jurisdiction) (citation omitted).

Likewise, while a contractual relationship alone "does not automatically establish sufficient minimum contacts," courts will "look to [the parties'] prior negotiations and contemplated future consequences." See generally Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir. 1993) (citation and internal quotations omitted, emphasis added). As just seen, substantial negotiations occurred in Pennsylvania and the parties clearly "contemplated future consequences" that would touch upon this forum. See discussion supra (Pennsylvania-based Robicon "would become a regular supplier" of Rolls-Royce, the companies would "cooperate in current and future product development," and Robicon would sell ownership interests to Rolls-Royce). Based on the foregoing, it is quite fair to say that Rolls-Royce knowingly and voluntarily "reach[ed] out beyond [its home] state [intending to] create continuing relationships and obligations with [a] citizen[] of another state." See generally Mellon Bank (East) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1222 (3d Cir. 1992) (citation and internal quotations omitted). Thus, Rolls-Royce may be held accountable here Page 12 "for the consequences of [its] activities." See id.*fn6

The Defendants' arguments to the contrary are unpersuasive. Counsel takes a narrow view of the conduct potentially giving rise to personal jurisdiction, focusing on the "core factual allegations" giving rise to the Plaintiff's claims, i.e., Rolls-Royce's purported use of Robicon's confidential information and its improper solicitation of Mr. Rogers. See Defs.' Br. at 7. Defense counsel urges that "[t]he availability of specific jurisdiction hinges upon whether these claims relate to Rolls-Royce's contacts with Pennsylvania." See id.

The Defendants' approach is consistent with neither reality nor the law. As seen above, all of the Plaintiff's claims arise out of the failed business proposals of the parties. In these regards, Rolls-Royce negotiated with a Pennsylvania corporation, in Pennsylvania, with the intent of creating ongoing business relationships with a resident of the Commonwealth. See generally discussion supra. In ignoring these facts and instead focusing narrowly on the Plaintiff's specific allegations of wrongdoing, Page 13 Defense counsel loses sight of the "highly realistic approach" endorsed by the Third Circuit and Supreme Courts alike. See BP Chemicals, 229 F.3d at 260; see also, e.g., Dayhoff, 86 F.3d at 1302 (district court "took too narrow a view of the subject of [the] litigation" in concluding that sale of business was immaterial to jurisdictional analysis; litigation was "concerned intimately with [the] sale," which "precipitated" acts giving rise to plaintiff's claims).

Even if the court were to adopt the Defendants' narrow approach, moreover, the Plaintiff has proffered evidence that Rolls-Royce was made privy to confidential information in Pennsylvania. See Affid. of A. Aleithe at ¶¶ 14, 15, 16. And though Defense counsel questions whether the information disseminated in Pennsylvania forms a sufficient basis for Robicon's claims, any disputes in this regard are construed in favor of the Plaintiff. Compare, e.g., Defs.' Br. at 8 (complaining that pleadings do not specify whether Rolls-Royce used confidential information provided in Pennsylvania) with Pl.'s Opp'n Br. (Doc. 11) at 10 (Plaintiff's "principal technology" was revealed to Rolls-Royce in Pennsylvania, forming "a substantial part of Robicon's claims"); see also generally Pinker, 292 F.3d at 368 (jurisdictional facts are assumed true Page 14 and construed in favor of plaintiff).*fn7

For all of the reasons stated above, the Plaintiff has sufficiently shown that the Defendants had "minimum contacts [with] the forum state." See generally Grand Entertainment, 988 F.2d at 481 (citations and internal quotations omitted). The only matter that remains is whether "the assertion of personal jurisdiction would comport with fair play and substantial justice." See id.

"Once the plaintiff has made out a prima facie case of minimum contacts, . . . the defendant must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." See id. (citations and internal quotations omitted, emphasis added). The burden on the Defendants is "heavy," and they have failed to meet it.

Defense counsel argues: (1) that litigating this action in Page 15 Pennsylvania will unduly burden Rolls-Royce; (2) that, in light of the foreign corporations involved, relevant "witnesses and documents are likely to be located overseas"; and (3) the Confidentiality Agreement, which specifies that its provisions are governed by English law, will require this tribunal to interpret and apply foreign jurisprudence. See generally Defs.' Br. at 9-10.

The second and third considerations warrant little attention. Regarding the convenience of securing witnesses and documents, this issue would arise regardless of where the matter is litigated. As seen above, the business negotiations in question involved companies headquartered in Pennsylvania, Italy, and the United Kingdom. Under the circumstances, the relative convenience of any given location should not be viewed as rising to a constitutional level.

As to the Confidentiality Agreement's being governed by English law, the Plaintiff has deliberately foregone any claims it may have for breach of contract. See generally discussion infra. Robicon's claims sound in tort, and the court has no reason to believe it will be called upon to apply English law.

Thus, the Defendants are left with their claim of undue burden. As evidenced by Rolls-Royce agents' multiple visits to Pennsylvania, however, the Defendants have "shown [their] ability Page 16 to conduct business in the United States"; "[t]his is not a case where a party without a significant presence or ability to act in the United States is drawn into litigation as a result of acts outside the forum." See Grand Entertainment, 988 F.2d at 483 (citation omitted). Last, any hardship suffered by Rolls-Royce does not outweigh "Pennsylvania['s] . . . interest in protecting its residents from the kind of conduct" alleged. See id. (citations omitted).

The Plaintiff has successfully refuted the Defendants' jurisdictional challenge, and their request for dismissal on this basis should be denied.

B. Venue Lies in this District Under 28 U.S.C. § 1391.

In large part, the Defendants' venue arguments parallel their arguments against the exercise of personal jurisdiction. See generally Defs.' Br. at 10-11. They fail for the following reasons.

Under the federal venue statute, a diversity case may be brought in "a judicial district where any defendant resides, if all defendants reside in the same State." See 28 U.S.C. § 1391(a)(1). The statute further provides that, "[f]or purposes of venue, . . . a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction." See 28 U.S.C. § 1391(c). Page 17

Having concluded that the Defendants are subject to personal jurisdiction here, they are deemed residents of this District and venue is proper under Section 1391(a)(1). See, e.g., Financial Trust Co., Inc. v. Citibank N.A., ___ F. Supp.2d ___, 2003 WL 21462346, *6 (D. V.I. Jun. 19, 2003) and Cornell & Co., Inc. v. Home Ins. Cos., 1995 WL 46618, *6 (E.D. Pa. Feb. 6, 1995) (both holding same).

Venue also is proper under Section 1391(a)(2), which permits suit where "a substantial part of the events or omissions giving rise to the claim occurred." See id. Taking as true the Plaintiff's allegations and evidence, Robicon has made a sufficient showing to satisfy this standard. Cf. generally discussion supra regarding personal jurisdiction. Page 18

C. The Defendants' Request for Dismissal Under Rule 12(b)(6)

In their opening brief, the Defendants construed the Plaintiff's claims as sounding in contract and sought their dismissal on related grounds. See generally Defs.' Br. at 12-15. Plaintiff's counsel responded, and the allegations of the Complaint confirm, that Robicon purports to assert a series of tort claims. See generally Pl.'s Opp'n Br. at 1. In reply, the Defendants take a different tack, arguing for the first time that Robicon's tort claims are precluded under Pennsylvania's "gist of the action" test. See Defs.' Reply Br. 5-8. Counsel's reliance on this doctrine is misplaced.

As the Court of Appeals for the Third Circuit has explained, Pennsylvania's "gist of the action" test is used "to determine whether tort claims that accompany contract claims should be allowed as freestanding causes of action or rejected as illegitimate attempts to procure additional damages for a breach of contract." See Bohler-Uddeholm Amer., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 103 (3d Cir. 2001) (emphasis added), cert. denied, 534 U.S. 1162 (2002). The doctrine has no application here, as Robicon has eschewed any claims it may have for breach of the Confidentiality Agreement. See generally discussion supra. Page 19

Robicon's right to bring claims in tort rather than in contract is consistent with, if not compelled by, the longstanding principle that a plaintiff is the master of its own complaint. See generally, e.g., In re Enron Corp. Sec., Derivative & ERISA Litig., 258 F. Supp.2d 576, 611 n. 32 (S.D. Tex. Mar. 12, 2003) (as master of complaint, plaintiff "may assert or not assert claims against its defendants as it chooses"); Morris v. Administrators of Tulane Educ. Fund, 1995 WL 368491, *1 (E.D. La. Jun. 20, 1995) (plaintiff has "the power to raise the claims that [it] wishes to pursue and omit those that [it] does not wish to pursue"). Accordingly, Robicon "may choose [its] specific theories of recovery," so long as it "can demonstrate the elements of the cause[s] of action" alleged. See generally Huff v. Nationwide Ins. Co., 167 B.R. 53, 58 (W.D. Pa. 1992) (citation omitted), aff'd, 989 F.2d 487 (3d Cir. 1993).

In response to the Defendants' Motion to Dismiss, the Plaintiff has shown that certain of its theories are viable and sufficiently pled. See generally discussion infra. Other of its causes of action, however, do not enjoy such support. See id.

Count I asserts claim(s) for "Misappropriation of Trade Secrets and Confidential Information." See Compl. The prima facie elements of this claim are: (1) the existence of trade secrets; (2) communication of the trade secrets pursuant to a Page 20 confidential relationship; (3) use of the trade secrets in violation of that confidence; and (4) harm to the plaintiff. See generally Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003) (interpreting Pennsylvania law, citations omitted). The Plaintiff's pleadings satisfy these elements, and Robicon may even rely on the Confidentiality Agreement as "evidence of the existence of a confidential relationship." See Den-Tal-Ez, Inc. v. Siemens Capital Corp., 566 A.2d 1214, 1224 (Pa. Super. 1989) (citation omitted); see also id. ("the existence of a confidentiality agreement [does not] preclude[] a common law trade secrets" claim).

Count II purports to state a claim for "Breach of Duty of Confidentiality." See Compl. The case cited in support of this theory, however, addresses a misappropriation of trade secrets claim. See Pl.'s Opp'n Br. at 17-18 (citing Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002)); see also Grace Consulting, 307 F.3d at 218 (discussing "misappropriation of trade secrets claim . . . based on . . . breach of duty of trust and confidentiality"), cert. denied, 123 S.Ct. 2075 (2003). Under the very decision relied upon Plaintiff's counsel, the purported Breach of Duty of Confidentiality claim is redundant of the Misappropriation of Trade Secrets claim. Otherwise, Plaintiff's counsel has failed Page 21 to show that a distinct and viable claim exists, let alone that its elements have been satisfied.

Next,*fn8 Count IV identifies a claim for "Unfair Competition." See Compl. The decision cited by Plaintiff's counsel addresses matters not even remotely implicated here, namely "[c]ommon law liability for . . . trademark infringement" and/or the creation of customer confusion. See Pennsylvania State Univ. v. University Orthopedics, Ltd., 706 A.2d 863, 870-71 (Pa. Super. 1998) (citations omitted); see also Pl.'s Opp'n Br. at 18 (citing same). Again, the Plaintiff has failed to demonstrate the viability of an unfair competition claim.

Last is Count V, alleging "Tortious Interference with Prospective Economic Advantage." See Compl. The case cited by Plaintiff's counsel identifies the following elements: "(1) a prospective contractual relationship; (2) a purpose or intent to harm the plaintiff by preventing the relationship from occurring; (3) the absence of privilege or justification; and (4) actual damage resulting from defendant's conduct." See Zions First Page 22 Nat'l. Bank, N.A. v. United Health Club, Inc., 704 F.2d 120, 125 (3d Cir. 1983) (applying Pennsylvania law); see also Pl.'s Opp'n Br. at 18 (citing same).

Perhaps explaining the Plaintiff's reliance on Zions First National, that decision fails to mention the implicit requirement that the "prospective contractual relationship" must be between the plaintiff and a third party. See SDK Inv., Inc. v. Ott, 1996 WL 69402, *12 (E.D. Pa. Feb. 15, 1996) (intentional interference with prospective contractual relationship requires showing that "a prospective contract with a third party existed") (citation omitted, emphasis added); 16 Causes of Action 569, Causes of Action for Interference with Prospective Business Advantage (2003) ("[t]o establish a prima facie case . . . for tortious interference with a prospective business advantage, the plaintiff must plead and prove that . . . it had a business relationship with a bona fide third party, i.e., a party independent of the defendant") (citations omitted, emphasis added); see also Allen v. Washington Hosp., 34 F. Supp.2d 958, 965 (W.D. Pa. 1999) (Ambrose, J.) (Pennsylvania courts "would declare noncognizable . . . a claim for intentional interference with existing or prospective contracts . . . where the interference was directed toward the plaintiff, rather than toward a third party") (emphasis added); Nix v. Temple Univ. of Commw. Sys. of Page 23 Higher Educ., 596 A.2d 1132, 378-79 (Pa. Super. 1991) ("[e]ssential to the right of recovery" under analogous theory of tortious interference with existing contract "is the [presence] of a contractual relationship between the plaintiff and a party other than the defendant"; an entity "cannot tortuously interfere with a contract to which it is a party") (emphasis added).

Here, the only "prospective contractual relationship" alleged is the one between Robicon (and its related corporations) and Rolls-Royce.*fn9 The law makes abundantly clear that Rolls-Royce "cannot tortuously interfere with [its own] contract." See generally discussion supra. There appears no basis in law for the Plaintiff's tortious interference claim.

In sum, Robicon's inability to survive under Rule 12(b)(6) regarding Counts II, IV, V and portions of Count III stem not from an application of the "gist of the action" test, but from the Plaintiff's failure thus far to identify legal authority Page 24 demonstrating the validity of its claims. See generally discussion supra. Because the analyses above are based on matters not raised in the Defendants' moving papers, however, the undersigned finds it appropriate to afford the Plaintiff one last opportunity to respond before its claims are dismissed.

Accordingly, the Defendants' 12(b)(6) Motion will be denied for failing to identify grounds upon which dismissal is warranted. The Plaintiff, however, is hereby ordered to show cause in its objections to this Report why Counts II, IV, V and portions of Count III should not be dismissed under Rule 12(b)(6) (or otherwise to stipulate to the dismissal of one or more of said Counts). The Defendants may present any arguments in opposition in their responses to objections, and no further briefing will be considered. Once the parties have submitted additional briefing on the subject claims, the District Court will be in a better position to determine whether one or more of them may survive scrutiny under Rule 12(b)(6).*fn10 Page 25

One final matter remains, namely the Defendants' general argument that the Plaintiff has failed to allege "present injury." See generally Def.'s Reply at 8. The Complaint does contain its share of fuzzy language regarding the degree of present, actual injury. See, e.g., Compl. at ¶ 44 ("[i]t is believed . . . that . . . Rolls-Royce will improperly use Mr. Rogers to trade upon Robicon's goodwill") and id. at ¶ 45 ("in his position with Rolls-Royce, . . . Mr. Rogers will inevitably disclose . . . [c]onfidential [i]nformation") (emphasis added). Other portions of the Plaintiff's pleadings, however, sufficiently articulate present harm. See, e.g., id. at ¶¶ 60, 64, 67, and 70 (each alleging that "Robicon has been injured . . . by Rolls-Royce's conduct") (emphasis added). As noted above, the court is required to take these factual averments as true, and the Defendants' argument is without merit.


For the reasons stated above, the Defendants' "Motion to Dismiss, Or, In the Alternative, For a More Definite Statement" (Doc. 5) should be denied, as consistent with the analyses and instructions above. Page 26

Under the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, objections to this Report and Recommendation would be due by September 22, 2003. In light of the order requiring the Plaintiff to show cause, however, the deadline for the parties' objections is hereby extended to September 26, 2003. Responses shall be filed on or before October 15, 2003.

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