ROBSON FORENSIC, INC. v. HEIBERG

Filing 6

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 5/31/2016. 6/1/2016 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBSON FORENSIC, INC.,
Plaintiff,
v.
ERIC HEIBERG, P.E.,
Defendant.

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CIVIL ACTION

NO. 16-1703

MEMORANDUM
Stengel, J.

May 31, 2016

The Plaintiff, Robson Forensic, Inc. (“Robson”) brings this suit against its former
employee, Defendant Eric Heiberg (“Heiberg”), to recover damages allegedly suffered as
a result of the Defendant’s post-employment competition. The Defendant has now
moved to dismiss two of the five counts contained in the complaint, arguing that the
Plaintiff’s claims for intentional interference with contractual relations and unfair
competition should be dismissed pursuant to the gist of the action doctrine. In the
alternative, he argues that the Plaintiff has failed to plead adequately these two causes of
action.
Although I find that the claims are not precluded by the gist of the action doctrine,
because the Plaintiff has not pleaded an adequate factual basis for its two tort claims, as
explained below, I will dismiss Counts IV and V of the complaint without prejudice.

I.

BACKGROUND
Robson is a Pennsylvania corporation that provides forensic expert services both

throughout the United States and internationally. Compl. ¶¶1-2. On August 13, 2006,
Robson hired Heiberg as a full-time forensic expert. Id. at ¶ 7. Around that time,
Heiberg signed an employment agreement, which provided that either party could
terminate it after thirty days’ notice. Id. at ¶ 13; Doc. No. 1 at 28 ¶ 26. The agreement
also contained the following provisions that governed Heiberg’s ability to compete with
Robson both during and after his employment:
28. You may not carry out any forensic consulting work in
your own name or for any other firm. You may carry out nonforensic consulting work to a limited extent. However, this is
not encouraged, as we want you to pursue development of our
practice on a full-time basis. Any non-forensic consulting
work that you carry out will not be conducted in the name of,
or associated with, RF. You will keep abreast of any
significant non-forensic work and the time commitment
expected.
30. In the event that you decide to terminate your association
with Robson Forensic, you will pay Robson Forensic 15% of
all proceeds (gross funds received) from any forensic practice
of your own, in areas (roughly two and one half hour radius)
where Robson Forensic has established offices, for a period
of 3 years after you terminate. Payments will be made
monthly on the proceeds as you receive them.
Id. at 28 ¶¶ 28, 30.
On February 10, 2014, Heiberg resigned, effective February 13, 2014. Compl. ¶
19. After leaving Robson’s employ, Heiberg began his own forensic expert practice and
has since been providing services in direct competition with Robson. Id. at ¶ 22. To
date, however, Heiberg has not made any payments pursuant to Paragraph 30 of the

employment agreement, despite providing services within areas that would trigger his
obligation to do so. Id. at ¶¶ 22-25.
Robson’s Complaint contains the following five counts: (I) breach of contract; (II)
declaratory judgment; (III) equitable accounting; (IV) unfair competition; and (V)
intentional interference with contractual relations. 1 See generally Compl. The Defendant
now moves to dismiss Counts IV and V of the Complaint.
II.

STANDARD
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

for failure to state a claim upon which relief can be granted examines the legal
sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual
allegations must be sufficient to make the claim for relief more than just speculative.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to
grant a motion to dismiss, a federal court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in favor of the plaintiff. Id.; see also
D.P. Enters. v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
A plaintiff need not, however, plead in detail all of the facts upon which he bases
his claim. Conley, 355 U.S. at 47. Rather, the Rules require a “short and plain statement”
of the claim that will give the defendant fair notice of the plaintiff’s claim and the
grounds upon which it rests. Id. The “complaint must allege facts suggestive of [the
proscribed] conduct.” Twombly, 550 U.S. at 564. Neither “bald assertions” nor “vague
1

The Plaintiff originally filed suit in the Lancaster County Court of Common Pleas. On April 8, 2016,
the Defendant removed the case to federal court. I am satisfied that pursuant to 28 U.S.C. § 1332, I have
jurisdiction over the matter.

and conclusory allegations” are accepted as true. See Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Se. Pa. Transp. Auth., 897 F. Supp. 893
(E.D. Pa. 1995). Instead, the claim must contain enough factual matters to suggest the
required elements of the claim or to “raise a reasonable expectation that discovery will
reveal evidence of” those elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). A court “may dismiss a complaint
only if it is clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations.” Brown v. Card Serv. Ctr., 464 F.3d 450, 456 (3d
Cir. 2006)(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
III.

DISCUSSION

The Defendant argues that the gist of the action doctrine precludes the Plaintiff’s
claims for intentional interference with contractual relations and unfair competition. In
the alternative, he argues that the Plaintiff’s claims should be dismissed as it has failed to
state a claim pursuant to Rule 12(b)(6). While I hold that the gist of the action doctrine
does not bar the Plaintiff’s claims, for the following reasons I will grant the Defendant’s
Motion to Dismiss, as the Plaintiff has not adequately pleaded its two tort claims.
a. Gist of the Action Doctrine
Pennsylvania’s “gist of the action” doctrine precludes a plaintiff from “recasting
ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Advert.,
Inc., 2002 PA Super 347, ¶¶ 13-14, 811 A.2d 10, 14 (2002). The doctrine bars tort
claims

(1) arising solely from a contract between the parties; (2)
where the duties allegedly breached were created and
grounded in the contract itself; (3) where the liability stems
from a contract; or (4) where the tort claim essentially
duplicates a breach of contract claim or the success of which
is wholly dependent on the terms of a contract.
Reed v. Dupuis, 2007 PA Super 68, 920 A.2d 861, 864 (Pa.Super.Ct.2007) (internal
citations omitted).
I find that neither the Plaintiff’s unfair competition claim nor its intentional
interference with contractual relation claim is barred by the gist of the action doctrine.
Under Pennsylvania law, there are four elements of a tortious interference with
contractual relations claim:
(1) the existence of a contractual, or a prospective contractual
relation between the complainant and a third party; (2)
purposeful action on the part of the defendant, specifically
intended to harm the existing relation, or to prevent a
prospective relation from occurring; (3) the absence of a
privilege or justification on the part of the defendant; and (4)
the occasioning of actual legal damage as a result of the
defendant's conduct.
Crivelli v. Gen. Motors Corp., 215 F.3d 386, 394 (3d Cir. 2000) (quoting Strickland v.
Univ. of Scranton, 700 A.2d 979, 985 (Pa. Super. Ct. 1997)); see also Mumma v.
Wachovia Bank, N.A., No. CV 09-4765, 2016 WL 874782, at *4 (E.D. Pa. Mar. 2, 2016).
Further, “Pennsylvania common law traditionally defines unfair competition as the
“passing off” of a rival's goods as one's own, creating confusion between one's own
goods and the goods of one's rival.” Giordano v. Claudio, 714 F. Supp. 2d 508, 521
(E.D. Pa. 2010) (citing Scanvec Amiable Ltd. v. Chang, 80 Fed.Appx. 171, 180 (3d
Cir.2003)). Courts also have “recognized a cause of action for the common law tort of

unfair competition where there is evidence of, among other things, trademark, trade
name, and patent rights infringement, misrepresentation, tortious interference with
contract, improper inducement of another's employees, and unlawful use of confidential
information.” Synthes (U.S.A.) v. Globus Med., Inc., Civ. A. No. 04–1235, 2005 WL
2233441, at *8 (E.D. Pa. Sept. 14, 2005) (citations omitted).
Here, the employment agreement between the parties did not forbid the Defendant
from engaging in post-employment competition. Rather, it stated,
30. In the event that you decide to terminate you association
with Robson Forensic, you will pay Robson Forensic 15% of
all proceeds (gross funds received) from any forensic practice
of your own, in areas (roughly two and one half hour radius)
where Robson Forensic has established offices, for a period
of 3 years after you terminate. Payments will be made
monthly on the proceeds as you receive them.
Doc. No. 1 at 28 ¶ 30. Because the agreement did not prohibit post-employment
competition, the Plaintiff’s claims for intentional interference and unfair competition do
not arise from the parties’ contract. Therefore, I hold that the gist of the action doctrine
does not bar the Plaintiff from bringing these two tort claims against the Defendant.
b. Failure to State a Claim
Nonetheless, I will grant the Defendant’s Motion, without prejudice, as the
Plaintiff has not pleaded sufficient facts to support these claims. While the Plaintiff has
provided an adequate factual basis for its breach of contract claim, it has not pleaded a
sufficient factual basis for its two tort claims. Rather, it has provided what Twombly
prohibits—a “formulaic recitation of the elements” that is not sufficient to withstand a
12(b)(6) motion to dismiss. Twombly, 550 U.S. at 555. Therefore, I will grant the

Defendant’s Motion to Dismiss and dismiss Counts IV and V of the Plaintiff’s
Complaint. I will do so, however, without prejudice, and grant the Plaintiff leave to
amend its complaint within twenty days.
IV.

CONCLUSION
Although I find that the Plaintiff’s claims for intentional interference with

contractual relations and unfair competition are not barred by the gist of the action
doctrine, for the foregoing reasons I will grant the Defendant’s Motion to Dismiss as the
Plaintiff has not pleaded sufficient facts to sustain its claims. I will do so, however,
without prejudice and the Plaintiff shall have twenty days to amend its complaint.
An appropriate Order follows.