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Tes Franchising, LLC, et al v. J. Eric Dombach

December 9, 2010

TES FRANCHISING, LLC, ET AL., PLAINTIFFS,
v.
J. ERIC DOMBACH, ET AL., DEFENDANTS,
v.
TERRY POWELL, ET AL., ADDITIONAL DEFENDANTS.



The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge

MEMORANDUM

Presently before the Court is the Motion to Dismiss the Amended Joinder Complaint filed by Additional Defendants Decor & You, Inc. ("D&Y") and Terry Powell ("Mr. Powell") on April 30, 2010 (Document No. 51). The Amended Joinder Complaint subject to the instant Motion includes the following claims: (1) Infringement of Copyright in Violation of the Copyright Act, 17 U.S.C. § 101 et seq. against D&Y and Does 1 through 500 (Count I); (2) Breach of Contract against Mr. Powell (Count II), (3) Violation of the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.1, et seq. against Mr. Powell (Count III); and (4) Promissory Estoppel against Mr. Powell (Count IV). For the following reasons, the Motion to Dismiss will be denied without prejudice.

I. PROCEDURAL BACKGROUND.

On March 10, 2010 original Defendant/Joinder Plaintiff J. Eric Dombach ("Mr. Dombach") filed a Joinder Complaint seeking injunctive, compensatory and punitive damages and other relief against Mr. Powell, D&Y and John Does 1 through 500. See Document No. 40. On April 19, 2010, Mr. Dombach filed an Amended Joinder Complaint against Mr. Powell, D&Y and John Does 1 through 500. See Document No. 48. On April 30, 2010, D&Y and Mr. Powell filed the instant Motion to Dismiss the Amended Joinder Complaint of J. Eric Dombach challenging jurisdiction and the legal sufficiency of the claims against them. See Document No. 51. On May 17, 2010, Mr. Dombach filed his Response to the Motion to Dismiss. See Document No. 55.

II. STANDARD OF REVIEW.

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2).

A defendant has the initial burden of raising the defense of lack of personal jurisdiction. Potts v. Harrah's Atl. City Hotel & Casino, No. CIV.A. 06-5422, 2007 WL 1866750, *1 (E.D. Pa. June 28, 2007)(citing Fed. R. Civ. P. 12(h)(1) and Walsh v. Alarm Sec. Grp, Inc., 157 F. Supp.2d 501, 504 (E.D. Pa. 2001)). Once the defendant raises the jurisdictional defense, the plaintiff bears the burden of demonstrating personal jurisdiction over the defendants. Miller v. Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004)(citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). If a jurisdictional defense is raised and neither discovery nor an evidentiary hearing has been held, a plaintiff need only make a prima facie showing of personal jurisdiction and courts must construe all facts in the light most favorable to the non-moving party. Id. Plaintiffs cannot rely on general averments in the complaint or unsupported statements in their response, but must instead provide jurisdictional facts supported by affidavits or competent evidence to sustain their burden. Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). Plaintiffs' burden is met "by establishing with reasonable particularity sufficient contacts between the defendant and the forum state." Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)(citations and quotations omitted). Generally, a plaintiff must submit "sworn affidavits or other competent evidence" to meet this burden. Potts, 2007 WL 1866750, at *1 (citing North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d Cir. 1990)(citation omitted)).

B. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6).

A motion to dismiss under Rule 12 (b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The motion to dismiss standard has been the subject of recent examination, culminating with the United States Supreme Court opinion Ashcroft v. Iqbal, 129 S.Ct. 1927 (2009). Following Iqbal, "threadbare recitals of the elements of a cause of action supported by mere conclusory statements do not suffice" to defeat a Rule 12 (b)(6) motion to dismiss. Id. at 1949; see also Bell Atl. v. Twombly, 550 U.S. 544 (2007). The Third Circuit Court of Appeals applied the principles of Iqbal in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), and articulated a two-part analysis that district courts in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12 (b)(6) motion to dismiss.

First, the factual and legal elements of a claim should be separated, meaning "a District Court must accept all of the complaint's well-pleaded facts as true, but may disregard legal conclusions." Id. at 210-11. Second, the Court must determine whether the facts alleged in the complaint demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211. A complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'shown' that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950; Jones v. ABN Amro Mortg. Grp, Inc., 606 F.3d 119, 123 (3d Cir. 2010). The Supreme Court explained that deciding whether a "complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

When faced with a motion to dismiss for failure to state a claim, courts may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir. 2004). A district court may also consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

The Court of Appeals and several district courts have noted that the pleading standards set forth in Twombly and Iqbal apply with equal force to crossclaims, counterclaims and third party complaints. SEPTA v. AECOM, USA, Inc., No. 10-117, slip op. (E.D. Pa. Nov. 18, 2010)(O'Neill, J.)(citing Travelers Indem. Co. v. Dammann & Co., Inc., 594 F.3d 238, 256 n.13 (3d Cir. 2010)(applying the Iqbal pleading standard to crossclaims); Rocheux Intern. of N.J., Inc. v. U.S. Merch. Fin. Gr., Inc., - F. Supp. 2d -, 2010 WL 3833733, at *6 (D. N.J. Sep. 29, 2010) (noting that Iqbal and Twombly apply to counterclaims); Simon Prop. Gr., Inc. v. Palombaro, 682 F. Supp. 2d 508, 511 (W.D. Pa. 2010) (same); Miami Valley Fair Housing Ctr. v. Steiner & Assocs., Inc., No. 08-00150, 2010 WL 2631110, at *7 (May 13, 2010) (applying Twombly and Iqbal to third party complaint); Colon v. Blades, - F.R.D.-, 2010 WL 1731666, at *2 (D.P.R. Apr. 29, 2010) (same); Mottley v. Maxim Crane Works, L.P., No. 06-78, 2010 WL 1284433, at *2 (D.V.I. Mar 26, 2010) (Bartle, C.J.) (same); Source One Global Partners, LLC v. KGK Synergize, Inc., No. 08-7403, 2009 WL 2192791, at *2 (N.D. Ill. July 21, 2009) (same)).

III. DISCUSSION.

A. Whether D&Y and Mr. Powell Waived Personal ...


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