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Gold v. Metz Lewis Law Firm

February 17, 2010


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.


Presently pending in this civil action are several motions to dismiss the Plaintiff's Second Amended Complaint. This is the third time that the Plaintiff has proffered a complaint in this case and the third time that the "Moving Defendants"*fn1 have challenged the legal viability of his claims. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331. For the reasons that follow, the motions to dismiss will be granted.


This litigation arises out of a business-related dispute primarily between Plaintiff Dennis D. Gold and Defendant John Frey relative to their involvement in a limited liability corporation known as Slurry Technologies Operating, LLC ("STO"). Both Plaintiff and Frey were principal employees of STO, and the company was owned jointly by their respective spouses, with Plaintiff's wife apparently holding a controlling interest.

According to the Second Amended Complaint, Plaintiff is the owner of certain patents relating to handling equipment of industrial slurries. (Second Amended Complaint ("SAC") at ¶ 13.) Plaintiff permitted the use of his patented technology to STO and, over the course of five years in the market, he earned royalties on these patents in excess of $500,000 through his business relations with STO and other companies. (Id. at ¶¶ 13, 15.)

It is alleged that, "on or about March of 2002," following Defendant John Frey's termination of employment with STO, the Defendants "stole certain documents and other property relating to the patents from the offices of STO" for the purpose of causing the Plaintiff personal harm and destroying his royalty earning potential as well as his market position. (SAC at ¶¶ 15-16.) Further, Defendants Metz Lewis, Petrikis, Robie, Metz, Marshall, Hicks, Paquin, Weckerly, and Elaine Frey allegedly "conspired with John Frey in the theft of the document[s], through malicious actions against the [Plaintiff],*fn2 and the subsequent cover-up and influencing of investigating officers and the local district attorney." (Id. at ¶ 17.)

Plaintiff claims that "Frey and other parties transported the stolen property across state lines into Ohio, with the intent of exposing/offering them to The Phoenix Processing Company, a competitor of STO[,] and destroying [Plaintiff's] earning potential of [sic] the market place." (SAC at ¶ 18.) Finally, it is alleged that "Defendants Hicks, Paquin, Weckerly, and John and Elaine Frey each had signed confidentiality agreements regarding the stolen documents." (Id. at ¶ 19.)

Based on the foregoing allegations, the Plaintiff has asserted two causes of action in his Second Amended Complaint. Count I asserts a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C.A. §§1961 et seq. as against all Defendants. Count II asserts a state law breach of contract claim as against Defendants Metz Lewis, Hicks, Paquin, Weckerly, John Frey, and Elaine Frey.

Defendants have moved to dismiss these claims pursuant to both Fed. R. Civ. P. 12(b)(1), based on the Plaintiff's alleged lack of standing to assert his claims, and Fed. R. Civ. P. 12(b)(6), based on the alleged failure of the Second Amended Complaint to state a claim for which relief may be granted. Because I find the second basis for dismissal to be dispositive, I need not consider the first.


In determining whether the dismissal of a complaint is appropriate pursuant to Fed. R. Civ. P. 12(b)(6), we must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" LaPosta v. Borough of Roseland, 309 Fed. Appx. 598, 600, 2009 WL 274156 at **2 (3d Cir. Feb. 3, 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). See also Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002). A plaintiff must allege in his complaint "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element[s]" of a cause of action. Phillips, 515 F.3d at 234 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed. 2d 929 (2007)). See LaPosta, 309 Fed. Appx. at 600, 2009 WL 274156 at **2.

Moreover, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Bates v. Paul Kimball Hosp., No. 09-2338, 2009 WL 3041989 at *1 (3d Cir. Sept. 24, 2009) (quoting Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009)). This plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Chen v. Township Of Fairfield, No. 08-3635, 2009 WL 4298297 at *2 (3d Cir. Dec. 2, 2009) (quoting Ashcroft v. Iqbal, - U.S. at -, 129 S.Ct. at 1949). "Factual allegations must be enough to raise a right to relief above the speculative level...." Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555).

Here, the Plaintiff is proceeding pro se and his complaint is therefore held to a less stringent standard than that which applies to formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, in judging the sufficiency of his complaint, the Court must read the Plaintiff's submissions generously and construe formally imperfect filings in accordance with his substantive intent. See id; Winslow v. The Borough of Malvern Pennsylvania, Civil Action No. 08-1890, 2009 WL 4609590 at *2 (E.D. Pa. Dec. 7, 2009).


A. Plaintiff's RICO Claim

In his first count, Plaintiff asserts a claim for alleged violations of 18 U.S.C.A. §§ 1962(c) and (d), which provide that:

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a ...

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