The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Before the Court is Defendant's Motion to Dismiss the Plaintiff's Amended Complaint pursuant to Fed.R.Civ. P. 12(b)(1), 12(b)(6), and 12(b)(7). Plaintiff, Premier Comp Solutions, LLC, brought this action against Defendant, WorkWell Physical Medicine, Inc., and in its Amended Complaint alleged Defendant violated the Lanham Act (Count I), engaged in business libel (Count II), engaged in unfair competition practices (Count III), and tortiously interfered with prospective business relationships (Count IV). See doc. no. 21.
Defendant contends that Plaintiff, in anticipation of Defendant filing a lawsuit against Thomas Mannering (a current employee of Plaintiff and a former employee of Defendant), Plaintiff filed this federal court lawsuit erroneously alleging violations of the Lanham Act solely to impose Federal Court jurisdiction. Defendant argues that Plaintiff has no viable Lanham Act claim, and because all of Plaintiff's other claims are pendant claims, the matter in its entirety must be dismissed for lack of subject matter jurisdiction. Alternatively, Defendant argues that the matter must be dismissed for failure to join an indispensable party, namely, Mr. Mannering. Finally, Defendant claims this matter is parallel to an action filed in the Court of Common Pleas of Allegheny County (filed thirteen days after this case was filed), and thus, urges this Court to abstain from hearing this case.
For the reasons that follow, this Court will deny in part and grant in part Defendant's Motion to Dismiss.
The following facts are accepted as true for solely for the purposes of this Motion to Dismiss.
Plaintiff and Defendant are business competitors -- both parties supply workers' compensation cost containment services to employers, but each business utilizes a different business model to deliver those services. Doc. no. 21, ¶¶ 7, 11, 14. One of the key distinctions between the businesses' models is that Defendant owns, operates, and /or manages clinics of medical services providers while Plaintiff does not. Doc. no. 21, ¶ 29. Plaintiff offers its customers the ability to use its network of providers in lieu of having to pay a PPO network, thereby giving its clients a unique cost savings. Doc. no. 21 ¶ 27.
In order to obtain new customers, Plaintiff makes presentations and offers proposals to prospective or ―potential‖ clients. Doc. no. 21, ¶¶ 33-34. On May 10, 2010, Plaintiff hired Thomas Mannering, who last worked for Defendant in November of 2008, to work as an account executive and make presentations and offer proposals to prospective clients. Doc. no. 21, ¶ 35; Doc. no. 23, p. 1.
On August 2, 2010, Defendant sent a letter to approximately 131 companies located in Pennsylvania and around the country, and in the letter stated in relevant part:
. . . I am writing to protect your interests and avoid confusion being created by a disgruntled former WorkWell employee. This individual, Tom Mannering, is contacting organizations currently working with WorkWell and identifying himself as a former employee of [WorkWell]. He is falsely claiming to provide the same services provided by WorkWell on behalf of a new organization. The information being used by Mannering and by proxy, his current employer, was obtained in violation of state trade secret protection laws. WorkWell is currently pursuing action to eliminate this misuse of our confidential and proprietary information to prevent the confusion that may be caused by Mannering's spurious claims.
Doc no. 21, ¶¶ 37-40; doc. no. 21-2 (emphasis added).
Plaintiff alleges that these statements are false or misleading descriptions or representations of fact, which are likely to: (1) cause confusion, (2) cause mistake, or (3) to deceive the reader with respect to: (a) the affiliation, connection or association of Defendant with Plaintiff and/or Mannering, or (b) the origin, sponsorship, or approval of Plaintiff's or Mannering's services or Plaintiff's commercial activities. Doc no. 21, ¶¶ 41-52.
When a court considers a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the first question is whether defendant is making a facial or factual jurisdictional attack. CNA v. U.S., 535 F.3d 132, 139 (3d Cir. 2008). In a facial jurisdictional attack, where defendant asserts that the allegations of the complaint are insufficient to establish jurisdiction, the court may only consider the allegations of the complaint, and must do so in the light most favorable to plaintiff. U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 513 (3d Cir. 2007). In a factual jurisdictional attack, where defendant argues that the court lacks jurisdiction based on evidence outside of the pleadings, the court may ―consider and weigh evidence outside the pleadings . . .‖. Id. at 514. The burden of proof is on the plaintiff to establish jurisdiction. Id. Thus, when presented with a factual 12(b)(1) motion, the court need only accept the plaintiffs' uncontroverted allegations as true, Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993)(citing Gibbs v. Buck, 307 U.S. 66, 72 (1939) and 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure " 1350, 1363, at 219- 20, 457 (2d ed. 1990)). In short, a facial attack concerns an ―alleged pleading deficiency.‖ CNA, 535 F.3d at 139 (citation and internal quotation omitted). A factual attack, however, concerns ―the actual failure of a plaintiff=s claims to comport factually with the jurisdictional prerequisites.‖ Id. (citation and internal quotation omitted).
Based on the allegations set forth in the Defendant's Motion to Dismiss and Brief in Suppport, Defendant has made a factual attack under Fed. R. Civ. P. 12(b)(1), and thus, this Court is free to consider and weigh evidence outside the pleadings. It is on this standard that the Court has carefully ...