TRIMAN INDUSTRIES, INC. v. PENTAGON 2000 SOFTWARE, INC.
MEMORANDUM OPINION & ORDER denying 6 Motion to Dismiss Pentagon's counterclaims. Signed by Judge Noel L. Hillman on 4/30/2015. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRIMAN INDUSTRIES, INC.,
Civil No. 14-5842 (NLH/AMD)
OPINION & ORDER
PENTAGON 2000 SOFTWARE, INC.,
DENNIS P. MCCOOE
WILL JONATHAN ROSENZWEIG
BLANK ROME LLP
ONE LOGAN SQUARE
PHILADELPHIA, PA 19103
On behalf of plaintiff
FREDRIC PAUL GALLIN
METHFESSEL & WERBEL, PC
3 ETHEL ROAD
PO BOX 3012
EDISON, NJ 08818-3012
On behalf of defendants
HILLMAN, District Judge
This matter having come before the Court on the motion of
plaintiff/counterdefendant, Triman Industries, Inc., to dismiss
the counterclaims lodged against it by defendant/counterclaimant,
Pentagon 2000 Software, Inc.; and
According to Triman’s complaint, 1 Triman is full-service
Pentagon removed Triman’s case to this Court pursuant to 28
U.S.C. §§ 1441 and 1446, stating that this Court’s subject
matter jurisdiction over the matter is pursuant to 28 U.S.C. §
distributor and worldwide provider of Military, Aerospace, and
In 2012 and 2013, Triman identified
Pentagon as a software company that could provide software and
customer services that would complement the products and
services Triman licensed from American Logistics
Information Corp. (“ALI”), a company with which Triman has
enjoyed a long-standing and critical business relationship.
January 8, 2014, Triman and Pentagon entered into a
Computer Software Program License Agreement (the “License
Triman alleges that Pentagon’s subsequent purchase
of SOS, a competitor to ALI, caused ALI to terminate its
business dealings with Triman and Pentagon, and that Pentagon
knew or should have known that termination would result from
such a purchase.
Triman alleges that Pentagon’s actions were in
violation of Section 1.2.1 of the License Agreement, which
provides that Pentagon’s license to Triman was “for purposes of
serving [Triman’s] business,” rather than to disrupt Triman’s
existing business operations.
Triman alleges that Pentagon’s
purchase of SOS was incompatible with providing its software to
Triman for purposes of serving Triman’s business, and that
1332, because the matter in controversy exceeds the sum or value
of $75,000.00, exclusive of interest and costs, and it is
between citizens of different states. Triman is a New Jersey
corporation, with its principal place of business in West
Berlin, New Jersey, and Pentagon is a New York corporation, with
its principal place of business in New York, New York.
therefore Pentagon had materially breached the License Agreement
and acted in violation of the covenant of good faith and fair
Triman having asserted claims against Pentagon for breach
of the License Agreement, breach of the covenant of good faith
and fair dealing, and for rescission of the License Agreement
under the frustration of purpose doctrine; and
Pentagon having answered Triman’s complaint, and having
filed two counterclaims against Triman; and
Pentagon alleging in its first counterclaim:
1. Pentagon expended time and resources in providing
services to Triman.
2. The purposes of same was to enter into a license
agreement which was to run for 5 years.
3. Triman has ceased making required payments pursuant
to the license agreement.
4. Triman continues to use and/or have access to
Pentagon’s work product.
5. Triman is in breach of its obligations to
Pentagon in an amount to be determined at trial.
(Docket Entry 3 at 7-8); and
Pentagon alleging in its second counterclaim:
1. Defendant repeats and reiterates the response to
the preliminary paragraphs as if same were set forth at
length herein as to paragraph 1 of this counterclaim.
2. By continuing to possess, use and/or have access to
the Pentagon software, Triman has been unjustly enriched in
an amount to be determined at trial.
(Docket Entry 3 at 8); and
Triman having moved to dismiss Pentagon’s counterclaims for
insufficient pleading; and
Triman arguing that Pentagon’s counterclaims are too vague,
conclusory, and fail to comply with the federal pleading
Pentagon arguing that its counterclaims are sufficiently
pleaded because they incorporate and respond to the allegations
contained in Triman’s complaint, and that it does not need to
restate in its counterclaims the undisputed elements of Pentagon
and Triman’s contract and business relationship; and
The Court noting that when considering a motion to dismiss
for failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations as true and view them
in the light most favorable to the plaintiff.
Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled
that a pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to
Fed. R. Civ. P. 8(a)(2).
Under the liberal federal
pleading rules, it is not necessary to plead evidence, and it is
not necessary to plead all the facts that serve as a basis for
Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d
However, “[a]lthough the Federal Rules of Civil
Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quotation and citation omitted); and
The Court further noting that a district court, in weighing
a motion to dismiss, asks “‘not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claim.’”
Bell Atlantic v. Twombly, 550
U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S.
232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684
(2009) (“Our decision in Twombly expounded the pleading standard
for ‘all civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final
nail-in-the-coffin for the ‘no set of facts’ standard that
applied to federal complaints before Twombly.”); and
The Court finding that even though Pentagon’s counterclaims
are brief, unelaborate, and untitled, they satisfy the Rule 8
Pentagon’s first counterclaim contains “a
short and plain statement” that Pentagon and Triman entered into
a 5-year license agreement, Pentagon performed work for Triman,
Triman stopped making payments to Pentagon even though Triman
still uses Pentagon’s work product, and Triman is therefore in
breach of that license agreement.
See Fed. R. Civ. P. 8(a)(2)
(“A pleading that states a claim for relief must contain: . . .
a short and plain statement of the claim showing that the
pleader is entitled to relief.”).
counterclaim also contains “a short and plain statement” that
Triman has been unjustly enriched by continuing to use
Pentagon’s software, for which Triman has ceased paying.
Pentagon demands damages in an amount to be determined at
See Fed. R. Civ. P. 8(a)(3) (“A pleading that states a
claim for relief must contain: . . . a demand for the relief
sought, which may include relief in the alternative or different
types of relief.”); and
The Court also finding that Pentagon’s counterclaims
satisfy Twombly/Iqbal by providing enough facts to raise a
reasonable expectation that discovery will reveal evidence of
whether Triman breached the parties’ licensing agreement or has
been unjustly enriched by using Pentagon’s software without
See Phillips v. Cnty. of Allegheny, 515 F.3d 224,
234 (3d Cir. 2008) (stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element”); and
The Court further finding that it is perfectly acceptable
that Pentagon has pleaded alternative theories of recovery, and
that it has not specifically titled its counterclaims.
R. Civ. P. 8(d)(1), (2), (3) (“Each allegation must be simple,
concise, and direct. No technical form is required.”), (“A party
may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is
sufficient.”), (“A party may state as many separate claims or
defenses as it has, regardless of consistency.”); see also
Marina District Development Co., LLC v. Ivey, --- F. Supp. 3d --,
2015 WL 1137859, 12 (D.N.J. 2015) (citing Illinois Nat. Ins.
Co. v. Wyndham Worldwide Operations, Inc., ––– F. Supp. 3d ––––,
2015 WL 381038, *9 (D.N.J. 2015) (citing Fed. R. Civ. P.
8(d)(2)) (“[A] party may plead in the alternative and prevail on
one of its two theories.”)); and
The Court observing that the definition of “counterclaim,”
and what can be construed as Pentagon’s “compulsory”
counterclaims, supports the notion that Pentagon does not need
to restate the factual averments contained in Triman’s complaint
in order for its counterclaims to be sufficiently pleaded
because compulsory counterclaims must be advanced if they
“arise out of the transaction or occurrence that is the
subject matter of the opposing party's claim.”
Fed. R. Civ. P.
13(a)(1)(a); see also Wheaton Glass Co., a Div. of Wheaton
Industries v. Pharmex, Inc., 548 F. Supp. 1242, 1246 (D.N.J.
1982) (citing Moore v. New York Cotton Exchange, 270 U.S. 593,
610 (1926)) (“If there is a ‘logical relationship’ between the
counterclaim and the main action, the counterclaim may be
considered to have arisen out of the same ‘transaction or
occurrence,’ as the one upon which the initial complaint was
based and, therefore, may be deemed to be a compulsory
counterclaim under Rule 13(a).”); and
The Court finding it clear that Triman has been adequately
placed on notice as to the nature of Pentagon’s counterclaims;
IT IS on this
ORDERED that Triman’s motion to dismiss Pentagon’s
counterclaims  be, and same hereby is, DENIED.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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