The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
This matter is before the court on the Motion of Defendant John Wiley & Sons, Inc. for Partial Dismissal of Plaintiffs' Complaint, which motion was filed April 11, 2011. Plaintiffs' Response in Opposition to Partial Motion to Dismiss was filed May 3, 2011. The motion for partial dismissal, having been fully briefed, is ripe for disposition.
For the reason expressed below, I deny defendant Wiley's motion for partial dismissal. Specifically, I deny defendant Wiley's motion because plaintiffs' Complaint adequately pleads a claim for common-law fraud under Pennsylvania law, and because the fraud claim asserted by plaintiffs is not barred by Pennsylvania's gist-of-the-action doctrine.
JURISDICTION This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1338 and 1367.
VENUE Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) and (c)(2), and pursuant to 28 U.S.C. § 1400(a).
COMPLAINT On March 8, 2011, plaintiffs filed a three-count Complaint, which includes a demand for jury trial. Specifically, Count I is a claim for copyright infringement against defendant Wiley, in violation of 17 U.S.C. §§ 501-513. Count II is a claim for common-law fraud against defendant Wiley. Count III is a claim for copyright infringement against defendant John Doe Printers 1-10, in violation of 17 U.S.C. §§ 501-513. Plaintiffs allege that the identity of these printers is known to defendant, but unknown to plaintiffs.
Plaintiffs' prayer for relief seeks a preliminary and permanent injunction against defendants and anyone acting in concert with them. Plaintiffs seek to enjoin defendants from copying, displaying, distributing, selling or offering to sell plaintiffs' photographs, both described in the Complaint and not included in this suit. Injunctive relief is authorized by 17 U.S.C. § 502.
Plaintiffs also seek impoundment of all copies of photographs used in violation of their copyrights as well as all related records, and destruction or other reasonable disposition of the photos upon final judgment, pursuant to 17 U.S.C. § 503.
Plaintiffs additionally seek actual damages and all profits derived from unauthorized use of their photographs, or statutory damages if they so elect. Finally, plaintiffs seek reasonable attorney's fees, costs, punitive damages against defendant Wiley, and other relief as the court deems proper.
The common-law fraud claim asserted in Count II is the subject of defendant Wiley's motion for partial dismissal.
CONTENTIONS Defendant Wiley contends that Count II of plaintiffs' Complaint, which asserts a claim of fraud pursuant to Pennsylvania common law, should be dismissed for two reasons. First, defendant Wiley contends that plaintiffs failed to plead their fraud claim with sufficient particularity to satisfy Federal Rule of Civil Procedure 9(b). *fn1 Second, defendant Wiley contends that plaintiffs' fraud claim is barred by Pennsylvania's "gist-of-the-action" doctrine. *fn2
Plaintiffs contend that Count II of their Complaint should not be dismissed. First, plaintiffs contend that they plead their fraud claim with sufficient particularity to satisfy Federal Rule of Civil Procedure 9(b). *fn3 Second, plaintiffs contend that Pennsylvania's gist-of-the-action doctrine does not bar their fraud claim because the alleged fraud predates the parties' contract and induced the formation of the contract. *fn4
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 Rule 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 [for] relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn5
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 ...