Pappalardo v. Stevins et al

Filing 23

ORDER granting 17 Defendant Samantha Stevin, Esq.'s Motion to Dismiss Amended Complaint. The above-captioned case is dismissed. The Clerk is DIRECTED to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 10/12/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL PAPPALARDO, an individual
Plaintiff,
v.

Case No: 2:17-cv-346-FtM-38CM

SAMANTHA STEVINS,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Samantha Stevins, Esq.’s
Motion to Dismiss the Amended Complaint (Doc. 17), and Plaintiff Michael Pappalardo’s
response in opposition (Doc. 18). For the following reasons, the Court grants Stevins’
motion.
BACKGROUND
This case involves a pending patent application in which Stevins allegedly induced
Pappalardo to name her as a joint inventor. About seventeen months ago, Pappalardo
met Stevins at a pharmaceutical trade show where Pappalardo told Stevins about his
concept for a product. (Doc. 11 at ¶ 8). Stevins told Pappalardo that she knew investors.
(Doc. 11 at ¶¶ 9-10). But when Pappalardo expressed concerned about keeping his

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invention confidential, Stevins recommended that he file a patent application. (Doc. 11
at ¶¶ 11-12). Stevins even offered to pay the attorney’s fees and costs for the application
if he named her as a joint inventor on the patent. Pappalardo agreed, hiring the attorney
who Stevins recommended and filing a patent application with the United States Patent
and Trademark Office (“PTO”).2 (Doc. 11 at ¶¶ 12, 14). The application – which remains
pending today – names Pappalardo and Stevins as joint inventors. (Doc. 11 at ¶ 14).
Relations soured between Pappalardo and Stevins when Stevins’ investors never
materialized. (Doc. 18 at 2). Pappalardo, in turn, filed this action against Stevins and
others for fraud, negligent misrepresentation, and a declaratory judgment. (Doc. 1). The
Court initially dismissed the original complaint for lack of subject matter jurisdiction. (Doc.
8). Pappalardo then filed an Amended Complaint against Stevins only (Doc. 11), which
she now moves to dismiss for failure to state a claim and lack of jurisdiction (Doc. 17).
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8, a plaintiff is required to provide a short
and plain statement of the claim showing entitlement to relief. Fed. R. Civ. P. 8(a)(2).
Although the complaint need not make detailed factual allegations, it must provide more
than labels, conclusions, and formulaic recitations of the elements of the cause of action.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). What is more, a plaintiff
alleging fraud, like here, must go one-step further and “state with particularity the
circumstances constitute fraud or mistake.” Fed. R. Civ. P. 9(b). A pleading thus satisfies
satisfy Rule 9(b) if it alleges

The Amended Complaint states Pappalardo filed the patent application on “September
26, 2017.” (Doc. 11 at ¶ 14). Because the Amended Complaint precedes that date, the
Court can only assume Pappalardo means the previous year.
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(1) precisely what statements were made in what documents
or oral representations or what omissions were made, and (2)
the time and place of each such statement and the person
responsible for making it (or, in the case of omission, not
making) same, and (3) the content of such statements and the
manner in which they misled the plaintiff, and (4) what the
defendants “obtained as consequence of the fraud.”
Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)
(citations omitted).
At the pleading stage, Rules 8 and 9 are read in conjunction with Federal Rule of
Civil Procedure 12(b)(6). When considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the reviewing court must accept all factual allegations in the
complaint as true and view them in a light most favorable to the plaintiff. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). But this preferential standard of review does not permit
all pleadings adorned with facts to survive to the next stage of litigation. The Supreme
Court has been clear on this point – a district court should dismiss a claim where a party
fails to plead facts that make the claim facially plausible. See Twombly, 550 U.S. at 570.
A claim is facially plausible when the court can draw a reasonable inference, based on
the facts pled, that the opposing party is liable for the alleged misconduct. Iqbal, 556 U.S.
at 678. This plausibility standard requires “more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation marks
omitted)).
DISCUSSION
Before considering Stevins’ arguments that Pappalardo has failed to state
plausible claims, the Court will decide her challenge to whether it has subject matter

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jurisdiction, i.e., federal question and/or diversity of citizenship, over this case. The Court
will start with federal question.
A district court has original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This includes
cases arising under patent laws. See id. § 1338; MDS Inc. v. Rad Source Tech., Inc.,
720 F.3d 833, 841 (11th Cir. 2013) (stating “[t]he Supreme Court has explained that
section 1338 must be interpreted in tandem with the statute that grants federal question
jurisdiction, . . . because both statutes use the term ‘arising under’” (citations omitted)).
Here, Pappalardo alleges the Court has federal question jurisdiction over Count
III3 because the claim hinges on a pending patent. In Count III, he asks the Court to
declare that (1) Stevens’ declaration of inventorship falsely labels her as an original joint
inventor (Doc. 11-3); and (2) her paying the attorney’s fees and costs for the patent
application does not make her an inventor per se. But, as the Court previously stated
(Doc. 8), it lacks the authority to make either declaration at this time. This is because the
patent is still pending before the PTO. Patent law “does not provide a private right of
action to challenge inventorship of pending patent applications.” HIF Bio Inc. v. Yung
Shin Pharm. Indus. Co., Ltd., 600 F. 3d 1347, 1355 (Fed. Cir. 2010). Only the PTO
director can modify inventorship on the pending application. Without an issued patent,
this Court thus lacks the jurisdiction to hear Count III. See 35 U.S.C. § 256 (providing
“the court . . . may order correction of the [issued] patent on notice and hearing of all
parties concerned.”).

The Amended Complaint labels the last two counts both as “Count II.” For ease of
reference, the Court will refer to the last count as “Count III.” (Doc. 11).
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Next,

Pappalardo

claims

that

Stevins

committed

fraud

and

negligent

misrepresentation, both state law claims, by telling him that she had access to investors.
And he alleges the Court has diversity of citizenship jurisdiction over these claims.
Federal courts have original jurisdiction over a matter if the amount in controversy
exceeds $75,000, exclusive of interest and costs, and there is complete diversity of
citizenship among the parties. See 28 U.S.C. § 1332(a); Morrison v. Allstate Indem. Co.,
228 F.3d 1255, 1261 (11th Cir. 2000). Here, although Pappalardo and Stevins are
citizens of different states, Pappalardo makes the conclusory statement that his damages
exceed $75,000 based on the “loss of his exclusive right” to his invention. (Doc. 18 at 3).
But such a loss hinges on whether the PTO issues the patent and names Stevins the
inventor. The damages thus are speculative at best and contingent on a matter for which
the Court lacks the authority to consider. Even setting aside this jurisdictional defect, the
Court is hard-pressed to find that Pappalardo has adequately plead damages and
causation – both elements needed to state an actionable claim for fraud and negligent
misrepresentation – with the requisite particularity. See Johnson v. Davis, 480 So. 2d
625, 628 (Fla. 1985); Lance v. Wade, 457 So.2d 1008, 1011 (Fla. 1984).
In conclusion, because the Court lacks subject matter jurisdiction, it must dismiss
this case.
Accordingly, it is now
ORDERED:
(1) Defendant Samantha Stevin, Esq.’s Motion to Dismiss Amended Complaint
(Doc. 17) is GRANTED. The above-captioned case is dismissed.

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(2) The Clerk is DIRECTED to enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida this 11th day of October 2017.

Copies: All Parties of Record

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