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Giordano v. Claudio

May 13, 2010


The opinion of the court was delivered by: Padova, J.


Plaintiff Antonio Giordano, M.D. filed the instant action against Pier Paolo Claudio, M.D. and Robert Waters, Esq., alleging defamation related to a dispute over authorship credit for an academic article. In response, Claudio and Waters filed a Counterclaim and Third-Party Complaint against Giordano and Valentina Caracciolo, Ph.D, and subsequently filed an Amended Counterclaim and Third-Party Complaint, adding Marcella Macaluso, Ph.D as a third-party defendant. We previously dismissed all claims against Caracciolo and Macaluso, and now before the Court is Counter-Defendant Giordano's Motion to Dismiss Claudio and Waters's Amended Counterclaim. For the following reasons, we grant the Motion in part and deny it in part.


The Amended Counterclaim alleges the following facts.*fn1 Giordano is the Director for the Center of Biotechnology, College of Science and Technology at Temple University, a Professor of Biology for the College of Science and Technology at Temple University, and the Director of the Sbarro Institute for Cancer Research and Molecular Medicine in Philadelphia, Pennsylvania. (Am. Countercl. ¶ 1.) Giordano is also the Reviews Editor and Associate Editor of the Journal of Cellular Physiology ("JCP"). (Id. ¶ 20.) Caracciolo is a post-doctoral fellow at Temple University. (Id. ¶ 2.) During the relevant time period, Macaluso was a Research Assistant Professor in the Biology Department at Temple University. (Id. ¶ 3.) Claudio was employed at Temple University until October 31, 2006, at which point he began employment at Marshall University in Huntington, West Virginia, where he set up a laboratory. (Id. ¶ 13.) From 1993 to 2006, Claudio worked in close association with Giordano in Giordano's laboratory. (Id. ¶ 4.) During that time, he performed a variety of research-related activities in association with Giordano, Caracciolo, and Macaluso. (Id. ¶ 5.)

In September 2004, research commenced on the National Institutes of Health ("NIH") Program Project 5P0INS036466-11 ("the Project"). (Id. ¶ 6.) The final experiments were completed in 2006, and the Project concluded in May 2008. (Id. ¶¶ 6, 12.) Claudio served as Co-Principal Investigator for the Project from approximately September 2004 through October 2006, during which time he also directed research for the Project and performed research-related activities. (Id. ¶ 7.) Giordano served as Principal Investigator of the Project. (Id. ¶ 8.)

On or about May 19, 2006, Giordano and Dr. Kamel Khalili, Director of the Project, asked Claudio to prepare a summary manuscript suitable for publication that would be submitted to the NIH as a status update. (Id.) On approximately May 20, 2006, Caracciolo sent Claudio an email including "materials and methods" information to be included in Claudio's draft. (Id. ¶ 9.) Claudio completed the progress report around May 22, 2006; it was subsequently submitted to the NIH. (Id. ¶ 10.) Claudio sent updated drafts of his report to Caracciolo on or around September 21, 2006 and October 19, 2006. (Id. ¶¶ 11, 12.) After Claudio left Temple University, he continued to communicate with Caracciolo regarding the Project, and Caracciolo used his cooperation, input, and knowledge to complete the Project. (Id. ¶ 14.)

On or about March 26, 2007, the JCP published an article entitled "Interplay Between the Retinoblastoma Related pRb2/p130 and E2F-4 and -5 in Relation to JCV-Tag" ("the Article"). (Id. ¶ 19.) The Article is substantially similar in text and substance to the reports Claudio prepared in 2006. (Id.) In November 2006, Claudio had reminded Caracciolo via email of his co-authorship of the upcoming published article. (Id. ¶ 15.) Giordano and Caracciolo had represented to Claudio that he would receive authorship credit if he contributed to and drafted significant portions of the Article. (Id. ¶ 38.) However, before publication of the Article, Claudio's authorship credit was removed or omitted. (Id. ¶ 22.) Instead, there was a note in the "Acknowledgments" section of the Article stating, "A special thank [sic] goes to professor Pier Paolo Claudio." (Id.) Claudio had not been informed that he would not receive authorship credit, and did not discover that he did not receive authorship credit until the Article was published. (Id. ¶¶ 15, 23.)

On June 21, 2007, Claudio sent a letter to Temple University asking that the University conduct an inquiry into the reasons why he did not receive authorship credit. (Id. ¶ 23.)*fn2 On the same day, he contacted the JCP, and specifically Gary Stein, Ph.D, to request assistance in rectifying the authorship credit error. (Id. ¶ 23.) Stein is the Executive Editor of the JCP and is a member of the Sbarro Institute Scientific Advisory Board. (Id. ¶ 21.) On or about July 23, 2007, Giordano responded in a letter to Stein ("the Stein Letter") to Claudio's communication to Stein regarding the authorship credit dispute, and stated that Claudio's contribution to the Project was not sufficient to support authorship credit in the Article, and that Stein could verify Giordano's position by communicating with Caracciolo and Macaluso. (Id. ¶ 24.)

On or about August 9 and October 4, 2007, Claudio supplied Temple University with additional documentation demonstrating his contributions to the Project and the Article. (Id. ¶ 25.) On or about November 28, 2007, Temple University conducted a teleconference interview with Claudio, in the presence of counsel. (Id. ¶ 26.) At the request of Temple University personnel, Claudio submitted additional documents in support of his allegations and in response to specific questions raised by Temple University personnel on approximately December 3, 2007. (Id. ¶ 27.) After an investigation, a subcommittee appointed by the Temple University Faculty Senate Personnel Review Committee found that Claudio merited authorship credit on the Article. (Id. ¶ 28.) Giordano nevertheless refused to correct the authorship credit, claimed that the investigative subcommittee was biased and its findings incorrect, and instituted a lawsuit alleging defamation against Claudio and Waters. (Id. ¶¶ 29-30.) Following Giordano's allegations of bias, Ann Weaver Hart, the President of Temple University, appointed a second committee, which conducted an investigation and obtained testimony from witnesses including Giordano and Claudio. (Id. ¶¶ 31-32.) The second investigative committee issued a report of its findings on July 19, 2009, stating that "'our Committee has unanimously determined that the scholarship and contributions to the active research by Professor Pier Paolo Claudio warrant his inclusion as a co-author on the referenced paper.'" (Id. ¶¶ 32-33.) Giordano has continued not to take corrective action with respect to the authorship credit. (Id. ¶ 34.)

The Amended Counterclaim asserts causes of action by Claudio against Giordano for fraud (Count 1); misrepresentation (Count 2); unfair competition (Count 3); conversion (Count 4); defamation (Counts 5-7); unjust enrichment, restitution, and specific performance (Count 8); and civil conspiracy (Count 10). The Amended Counterclaim also asserts a cause of action by Claudio and Waters against Giordano for abuse of process (Count 9).*fn3 On December 15, 2009, Giordano filed his Motion to Dismiss.


When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we look primarily at the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), which gives the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). In the end, we will grant a Rule 12(b)(6) motion if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004)). A complaint that offers "only 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action,'" or that merely "allege[s] the plaintiff's entitlement to relief," is insufficient. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (quoting Twombly, 550 U.S. at 555). Rather, a complaint must show the plaintiff's entitlement to relief with its facts. Id. at 211 (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)).


A. Counts One and Two: Fraud and Misrepresentation Count One of the Amended Counterclaim asserts a claim of fraud on behalf of Claudio. It alleges that Giordano knowingly and deliberately misrepresented to Claudio that he would receive authorship credit if he made sufficient contributions to the Article. (Am. Countercl. ¶¶ 38-39.) It further alleges that, in doing so, Giordano intended to induce Claudio to contribute to and draft significant portions of the Article. (Id. ¶ 40.) It also alleges that Claudio was unaware that Giordano intended to omit his name as an author when he submitted the Article to the JCP. (Id. ¶ 42.) The Counterclaim further alleges that Claudio justifiably relied on Giordano's representations regarding authorship credit in making a significant contribution to the Article. (Id. ¶¶ 41, 44.)

Count Two of the Amended Counterclaim asserts a claim of misrepresentation on behalf of Claudio. Claudio's misrepresentation claim makes essentially the same allegations as his fraud claim. In his Response in Opposition to the Motion to Dismiss, Claudio clarifies that Count Two asserts a claim for fraudulent or intentional misrepresentation, not negligent misrepresentation. (Resp. at 14.) The Pennsylvania courts, however, do not distinguish between causes of action for fraud and intentional misrepresentation. See Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994) (citing W. Page Keaton, Prosser & Keaton on the Law of Torts § 105 (5th ed. 1984); and Restatement (Second) of Torts § 525 (1977)). Counts One and Two thus assert identical claims for fraud against Giordano. Accordingly, we dismiss Count Two of the Amended Counterclaim as duplicative of Count One.

Giordano argues that Count One must be dismissed for failure to state a claim upon which relief may be granted because (1) it is not alleged with sufficient particularity, especially with respect to the nature of Giordano's alleged promise; (2) it is based upon a promise to do something in the future, not the misrepresentation of a past or present material fact; and (3) it is barred by Pennsylvania's "gist of the action" doctrine, which provides that a plaintiff may not recover in tort for claims that actually sound in contract.*fn4 Under Pennsylvania common law, a fraud or intentional misrepresentation claim must allege the following elements: "(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance." Id. For fraud claims, Rule 9(b) requires a party to "state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). In order to satisfy Rule 9(b), a plaintiff "must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the 'precise conduct with which [it is] charged.'" Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (alteration in original) (quoting Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004)). A plaintiff can meet this requirement "by pleading the 'date, place or time' of the fraud, or through 'alternative means of injecting precision and some measure of substantiation into [his] allegations of fraud.'" Lum, 361 F.3d at 224 (quoting Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984)).

Count One of the Amended Counterclaim provides sufficient detail to put Giordano on notice of the allegations leveled against him -- that is, that he misrepresented to Claudio in 2006 that he would receive authorship credit if he made sufficient contributions to the Article. Although the Amended Counterclaim does not plead the exact date, place, or time of the alleged fraud, it is sufficiently precise to show that Claudio alleges that he was injured by contributing to the Article in reliance upon Giordano's alleged misrepresentation with respect to the authorship credit and subsequently receiving no authorship credit. Additionally, the Amended Counterclaim as a whole contains sufficiently detailed allegations with respect to the nature of Claudio's injury. Therefore, we conclude that the Amended Counterclaim satisfies Rule 9(b)'s heightened pleading requirement with respect to Count One.

Giordano also argues that Claudio's fraud claims must be dismissed because they allege the misrepresentation of a future promise. "It is well-established that a cause of action for fraud must allege a misrepresentation of a past or present material fact." Krause v. Great Lakes Holdings, Inc., 563 A.2d 1182, 1187 (Pa. Super. Ct. 1989) (citing Nissenbaum v. Farley, 110 A.2d 230 (Pa. 1955); Laughlin v. McConnel, 191 A.2d 921 (Pa. Super. Ct. 1963); and Blose v. Martens, 95 A.2d 340 (Pa. Super. Ct. 1953)). In contrast, the breach of a promise to do something in the future does not constitute fraud. Id. (citations omitted). However, an expressed intention to take future action that "does not actually comport with one's true state of mind at that time . . . is a misrepresentation of existing fact" and may serve as the basis for a fraud claim. Phoenix Techs., Inc. v. TRW, Inc., 834 F. Supp. 148, 152 (E.D. Pa. 1993) (citations omitted); see also Mellon Bank Corp. v. First Union Real Estate Equity and Mortgage Invs., 951 F.2d 1399, 1410-11 (3d Cir. 1991) (noting that "[a] statement of present intention which is false when uttered may constitute a fraudulent misrepresentation of fact," but adding that "[s]tatements of intention made at the time of contracting are not fraudulent simply because of a later change of mind" (citations and internal quotations omitted)).

Although the Amended Counterclaim identifies the relevant misrepresentation as Giordano's future promise that Claudio "would be credited as an author of the Article" (Am. Countercl. ¶ 38) (emphasis added), it also alleges that when Giordano made the future promise to Claudio of authorship credit, he did so knowing that he intended to omit Claudio's name as an author when he submitted the Article for publication. The determination of whether Giordano honestly intended to name Claudio as an author at the time of the alleged misrepresentation or planned to deceive him entails questions of fact, and we may not now rule as a matter of law that Giordano did not intend to omit Claudio's name from the authorship line. See Rosen v. Commc'n Servs. Group, Inc., 155 F. Supp. 2d 310, 321 (E.D. Pa. 2001) (citing Fox's Foods, Inc. v. Kmart Corp., 870 F. Supp. 599, 608 n.11 (M.D. Pa. 1994); and Phoenix Techs., 834 F. Supp. at 152). Since the Amended Counterclaim alleges that Giordano expressed an intention to grant Claudio authorship credit at the same time that he did not intend to grant such credit, we find that it alleges the misrepresentation of a present fact.

Finally, Giordano argues that Claudio's fraud claim is barred by the gist of the action doctrine. The gist of the action doctrine prevents plaintiffs from recovering in tort for claims that sound in contract by barring tort claims (1) that arise solely from the contractual relationship between the parties; (2) where "the duties allegedly breached were created and grounded in the contract itself;" (3) where "liability stems from the contract;" and (4) "where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent" on the success of the breach of contract claim.*fn5 eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 19 (Pa. Super. Ct. 2002) (internal quotations omitted). The purpose of the doctrine is "to maintain the conceptual distinction between the theories of breach of contract and tort by preventing a plaintiff from recasting ordinary breach of contract claims as tort claims." ...

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