The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
This is an action for wrongful termination of franchise agreements. Plaintiff, Patrick Hopkins ("Hopkins"), was a General Nutrition Center ("GNC") franchisee who operated five GNC stores located in Florida, Georgia and North Carolina. Upon his default under the franchise agreements, GNC terminated his five franchises.
On October 28, 2005, Hopkins filed a civil complaint and motion for temporary restraining order ("TRO")/preliminary injunction before this Court at Civil Action No. 05-1510 (hereinafter referred to as "Hopkins I"). United States Magistrate Judge Francis X. Caiazza conducted a hearing on the motion for TRO/preliminary injunction and issued a Report and Recommendation in which he recommended that said motion be denied. On December 9, 2005, this Court issued an Order adopting the Report and Recommendation as the opinion of the Court. GNC then filed a motion to dismiss the underlying complaint in Hopkins I contending that plaintiff's five count complaint alleging (1) violation of a class action settlement, (2) common law fraud, (3) violation of the Florida Deceptive Trade Practices Act, (4) breach of implied covenant of good faith and fair dealing, and (5) tortious inference, failed to state a claim under Fed. R. Civ. P. 12(b)(6).
On January 13, 2006, this Court issued a Memorandum Opinion and Order granting said motion to dismiss in its entirety and closing the case. (see Hopkins I, doc. nos. 26 and 27). Specifically, in its January 13, 2006 Order, this Court dismissed counts one through four with prejudice, and dismissed count five (tortious inference) without prejudice.
Instead of properly filing: a motion to amend the complaint (which is commonly done when any claim in a motion to dismiss is granted without prejudice); a motion for reconsideration; or, an appeal of said Order, plaintiff waited approximately two months (until March 8, 2006) to file the instant civil action (hereinafter referred to as "Hopkins II").*fn1
On April 28, 2006, GNC filed a motion to dismiss Hopkins II. At the initial status conference, this Court asked the parties for additional briefing on the issue of whether plaintiff's instant suit should be dismissed on the basis of claim preclusion.*fn2
After careful consideration of GNC's motion to dismiss (doc. no. 9), plaintiff's response, GNC's reply, and plaintiff's sur-reply thereto, said motion will be GRANTED.
In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court accepts the well-pleaded factual allegations of the complaint as true, and draws all reasonable inferences therefrom in favor of the plaintiff. Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hospital, 185 F.3d 154, 155 (3d. Cir. 1999). A claim should not be dismissed for failure to state a claim unless it appears beyond a doubt that the non-moving party can prove no set of facts in support of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Marshall-Silver Construction Co. v. Mendel, 894 F.2d 593, 595 (3d. Cir. 1990).
In making this determination, the court must construe the pleading in the light most favorable to the non-moving party. Budinsky v. Pennsylvania Dept. of Environmental Resources, 819 F.2d 418, 421 (3d. Cir. 1987). Further, the Federal Rules of Civil Procedure require notice pleading, not fact pleading, so to withstand a Rule 12(b)(6) motion, the plaintiff "need only make out a claim upon which relief can be granted. If more facts are necessary to resolve or clarify the disputed issues, the parties may avail themselves of the civil discovery mechanisms under the Federal Rules." Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004), quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002) ("This simplified notice pleading standard relies on liberal discovery rules . . . to define facts and issues and to dispose of unmeritorious claims.").
In support of its motion to dismiss, GNC argues that the complaint in Hopkins II should be dismissed with prejudice on the basis of: the doctrine of claim preclusion; failure to raise all claims at one time (claim splitting); and ...