The opinion of the court was delivered by: James Knoll Gardner United States District Judge
This matter is before the court on Plaintiff's Motion to Dismiss Count IV of Defendant's Amended Counterclaim Pursuant to Fed.R.Civ.P. 12(b)(6), which motion was filed by plaintiff Protica, Inc. *fn1 on June 30, 2011.
For the following reasons, I grant Protica's motion to dismiss and dismiss Count IV of iSatori's Amended Counterclaim.
Specifically, I grant Protica's motion and dismiss Count IV of iSatori's Amended Counterclaim for two reasons. First, iSatori's Amended Counterclaim fails to state a claim for fraudulent concealment because, although it asserts that Protica had a non-contractual duty to disclose information to iSatori, it fails to plead any non-contractual basis of Protica's alleged duty to disclose. Second, I grant Protica's motion to dismiss and dismiss Count IV of the Amended Counterclaim because iSatori's claim of fraudulent concealment is barred by Pennslyvania's economic loss doctrine.
Jurisdiction in this case is based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because a substantial part of the events giving rise to Protica's claims and iSatori's counterclaims allegedly occurred within this judicial district.
Protica initiated this civil action by filing a Complaint against iSatori on February 15, 2011. On April 1, 2011, pursuant to a stipulation of the parties, iSatori filed an Answer. The Answer of iSatori contained Affirmative Defenses and a Counterclaim. *fn2
On May 20, 2011 Protica filed Plaintiff's Motion to Dismiss Count IV and Count V of Defendant's Counterclaim Pursuant to Fed.R.Civ.P. 12(b)(6). A stipulation approved by Order dated June 10, 2011 and filed June 13, 2011, gave iSatori until June 20, 2011 to respond to Protica's motion to dismiss Counts IV and V of the Counterclaim.
On June 20, 2011 iSatori filed its Amended Answer. The Amended Answer also included Affirmative Defenses and a Counterclaim ("Amended Counterclaim"). *fn3 By Order dated June 23 and filed June 24, 2011, I dismissed Protica's motion to dismiss Counts IV and V of iSatori's Counterclaim as moot because iSatori filed an Amended Counterclaim.
On June 30, 2011, Protica filed Plaintiff's Motion to Dismiss Count IV of Defendant's Amended Counterclaim Pursuant to Fed.R.Civ.P. 12(b)(6). *fn4 On July 25, 2011, iSatori Technologies, LLC's Response to Plaintiff's Motion to Dismiss Count IV of the Counterclaim was filed. *fn5
On August 3, 2011 Protica filed Plaintiff's Memorandum of Law in Reply to Defendant's Opposition to Plaintiff's Motion to Dismiss with leave of court. On August 15, 2011 defendant filed iSatori Technologies, LLC's Surreply in Support of Its Opposition to Plaintiff's Motion to Dismiss Count IV of the Counterclaim, also with leave of court.
Having been fully briefed, Plaintiff's Motion to Dismiss Count IV of Defendant's Amended Counterclaim Pursuant to Fed.R.Civ.P. 12(b)(6) is ripe for disposition. Hence this Opinion.
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d. Cir. 2008).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn6
In determining whether a plaintiff's complaint is sufficient, the court 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, the plaintiff may be entitled to relief." Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Although "conclusory or bare-bones allegations will [not] survive a motion to dismiss," Fowler, 578 F.3d at 210, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded.
Id. at 210-211. Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 ...