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Solomon v. Khoury

United States District Court, D. Massachusetts

February 13, 2017

DENNIS SOLOMON, Plaintiff,
v.
PHILIP KHOURY, DOUGLAS WOLF DAVID GESNER, VINCENT LECLERC, LEIGH-ELLEN LOUIE, PEPSICO., INC., ESKI, INC., AND DAVID PARENT, Defendants.

          MEMORANDUM AND ORDER

          DENISE J. CASPER, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff Dennis Solomon (“Solomon”), proceeding pro se, has filed this lawsuit against Defendants Philip Khoury, Douglas Wolf, David Gesner, Vincent LeClerc, Leigh-Ellen Louie, PepsiCo, Inc., Eski, Inc., and David Parent (the “Defendants”). Solomon filed his complaint on February 5, 2016, alleging causes of action relating to an alleged conspiracy by the Defendants to steal, among other things, trade secrets from him. D. 1. Specifically, Solomon asserts that various Defendants have engaged in inequitable conduct in their filing of a patent application that purportedly infringed on Plaintiff's patent (Counts I and II), commercially disparaged him (Count III), violated Section 43(a) of the Lanham Act through false advertising (Counts IV and V), intentionally interfered with his various business relations (Counts VI, VII, and VIII), and schemed to obtain his trade secrets (Count IX).[1] D. 1 at 8-17. Defendants Gesner and Wolf have moved to dismiss Counts I, II, VI, VII, VIII, and IX. D. 13. Defendants Eski, LeClerc, and Parent moved to join Gesner and Wolf's motion to dismiss (D. 20), which the Court allowed, D. 30, and also moved to dismiss Counts III, IV and V. For the reasons stated below, the Court ALLOWS the motions and DISMISSES the complaint pursuant to Fed.R.Civ.P. 8(a) and 12(b)(6).

         II. Standard of Review

         Rule 8 of the Federal Rules of Civil Procedure provides, in relevant part, that “[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 . . . .” Fed.R.Civ.P. 8(a)(2). The statement must “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Phelps v. Local 0222, No. 09-cv-11218, 2010 WL 3342031, at *5 (D. Mass. Aug. 20, 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quotations and citations omitted)). If a plaintiff's complaint fails to comply with the “short and plain statement” requirement, a district court may dismiss it. Kuehl v. Fed. Deposit Ins. Co., 8 F.3d 905, 908 (1st Cir. 1993). “Dismissal [for noncompliance with Rule 8] is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Miranda v. United States, 105 F. App'x 280, 281 (1st Cir. 2004) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)) (alteration in original) (internal quotation marks omitted).

         Under Fed.R.Civ.P. 12(b)(6), the Court will dismiss a pleading that fails to include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).). In reviewing the sufficiency of a complaint, the Court conducts a two-step, context-specific inquiry. See García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the complaint “as a whole” to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. The Court must accept the factual allegations as true. Id. Conclusory legal assertions may be disregarded. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (internal quotation marks and citation omitted).

         III. Factual Background

         As can best be gleaned from the factual allegations in the complaint, which the Court must accept as true for the purposes of deciding the motions to dismiss, Solomon's claims revolve around a patent prosecuted by Solomon which concerned audience effects technology. D. 1 ¶ 38. In 2000, Solomon consulted with Defendant Wolf, an attorney, regarding the audience effects technology at issue. See id. ¶¶ 37-39. Solomon's complaint does not mention any significant event occurring between this consultation in 2000 and 2006, the year that Solomon eventually filed his patent application with the U.S. Patent Office. Id. ¶ 40. Specifically, there is no allegation that Solomon and Wolf maintained an attorney-client relationship at any point after the initial consultation in 2000 and there is no indication Wolf assisted Solomon in the eventual filing of the application in 2006. In 2012, the U.S. Patent Office approved Solomon's patent application, and the patent issued as U.S. Patent 8, 194, 188 (the “‘188 patent”). Id.

         As alleged, at some point between 2000 and 2013, Wolf was retained by LeClerc, the Chief Technology Officer of Eski, Inc., to assist in the filing of a separate and distinct patent application from the one filed by Solomon. See id. ¶ 41. In 2013, on behalf of his client, Wolf filed LeClerc's patent application with the U.S. Patent Office. Id. This patent application covered a data and image projector. Id. ¶ 42. According to Solomon's allegations, the patent application filed on behalf of LeClerc disclosed an invention identical to the invention covered by his patent, the ‘188 Patent. Id. In March 2014, Solomon sent Parent, the President of Eski, Inc., a letter informing him that LeClerc's patent application covered similar technology to the ‘118 patent. Id. ¶ 45. In response, Gesner-a different attorney at Wolf's firm-filed a Request for Continued Examination (“RCE”) and an Information Disclosure Statement (“IDS”) with the U.S. Patent Office, which listed many of Solomon's U.S. patents. Id. ¶¶ 45-46. This gave notice to the patent examiner that the ‘118 patent would need to be considered before the issuance of LeClerc's patent. On April 29, 2014, the patent examiner indicated that he had considered the ‘118 patent in his evaluation of LeClerc's patent application, but that the ‘118 Patent failed to set forth what was claimed by the LeClerc patent application. D. 15-4 at 2. As such, in May 2014, the U.S. Patent Office allowed the claims present in LeClerc's patent application. D. 1-6. On June 3, 2014, LeClerc's patent issued as U.S. Patent 8, 740, 391. D. 1 ¶ 47.

         IV. Procedural History

         Solomon first filed suit against Defendants in September 2015, but the case was dismissed without prejudice after Solomon failed to pay the required administrative filing fees or, alternatively, file a motion for leave to proceed in forma pauperis. Solomon v. Wolf, 15-CV- 13393-DJC, D. 8. On February 5, 2016, Solomon instituted this action. D. 1. Defendants Gesner and Wolf have now moved to dismiss Counts I, II, VI, VII, VIII, and IX. D. 13. Defendants Eski, Inc., LeClerc, and Parent moved to join co-defendants motion to dismiss (D. 20) and filed their own motion to dismiss Counts III, IV, and V. D. 21. The Court heard the parties on the pending motions and took these matters under advisement. D. 30.

         V. Discussion

         A. The Complaint Fails to Satisfy Fed.R.Civ.P. 8(a)(2)

         As the Defendants point out in their motions to dismiss, many of the allegations in the complaint appear to have nothing to do with Solomon's causes of action. See, e.g., D. 1 ¶ 89 (alleging that the former Chief Justice of the United States, William Rehnquist, participated in “anti-Semitic Lutheran liturgy”); D. 1 ¶ 91 (alleging an organization called the “Atlantis Cartel” used an Israeli man named Al Schwimmer as a scapegoat in the Iran/Contra Scandal); D. 1 ¶ 34 (alleging the mother of a guitarist from the band PHISH, Marge Minkin, was consulted by some of the defendants in furtherance of an unidentified “scheme” against Solomon); and D. 1 ¶ 87 (alleging that assistants to President Ronald Regan provided high quality cocaine to patrons of Studio 54, businessmen on Wall Street, visitors to the Hamptons, and members at various New England yacht clubs). Indeed, the allegations presented by Solomon are so disjointed and disorganized that the complaint, “falls into the category of ‘[c]omplaints which ramble, which needlessly speculate, accuse and condemn, and which contain circuitous ...


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