Superior Court of Massachusetts, Suffolk, Business Litigation Session
Alfred R. GENIS
Martin CAMPBELL et al.
Date: February 26, 2019
MEMORANDUM AND ORDER ON PLAINTIFFâS MOTION TO FOR
LEAVE TO AMEND COMPLAINT
Kenneth W. Salinger, Justice of the Superior Court
Genis filed suit in June 2017 claiming that Martin Campbell,
David Campbell, their company Pure Crystal, LLC, and up to
ten unidentified "John Doe" plaintiffs had
allegedly misappropriated trade secrets. By statute, an
unknown defendant may be sued in a civil action "by a
fictitious name"; doing so "shall not be grounds
for dismissal" so long as the actual defendant is
identified in an amended complaint and served with process in
a timely manner. See G.L.c. 223, Â§ 19.
now seeks leave to amend his complaint to substitute Campbell
Technological Resources, Inc. ("CTR"), Fraunhofer
USA, Inc., Fraunhofer-Gesellschaft, and Thomas Schuelke for
the prior fictitious defendants.
Fraunhofer USA and Schuelke oppose the motion to amend.
Neither CTR, nor the existing Defendants, nor Fraunhofer
Gesellschaft (which is not represented by the same counsel as
Fraunhofer USA and Schuelke) has opposed the motion.
Court concludes that it would be futile to amend the
complaint to assert claims against Fraunhofer USA and
Schuelke because those claims could not survive a motion to
dismiss. The Court will therefore deny the motion to amend in
part to the extent that Genis seeks to assert claims against
Fraunhofer USA and Schuelke, but will allow the motion in
part to the extent it seeks to assert claims against CTR and
are not required to grant motions to amend prior complaints
where âthe proposed amendment ... is futile.â"
Johnston v. Box, 453 Mass. 569, 583 (2009), quoting
All Seasons Servs., Inc. v. Commissioner of Health &
Hosps. of Boston, 416 Mass. 269, 272 (1993); accord
Thermo Electron Corp. v. Waste Mgmt. Holdings, Inc.,
63 Mass.App.Ct. 194, 203 (2005) (affirming denial of motion
for leave to assert counterclaim that would have been
proposed amendment that would add new claims to a complaint
is futile if the new claims could not survive a motion to
dismiss. Mancuso v. Kinchla, 60 Mass.App.Ct. 558,
572 (2004) (affirming denial of motion to amend).
survive a motion to dismiss under Rule 12(b)(6), and thus to
avoid being futile under Rule 15, a complaint must allege
facts that, if true, would "plausibly suggest[ ] ... an
entitlement to relief." Lopez v. Commonwealth,
463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford
Motor Co., 451 Mass. 623, 636 (2008), and Bell A.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). For the
purpose of deciding whether the proposed claims against
Fraunhofer USA and Schuelke could survive a motion to
dismiss, the Court must assume that the factual allegations
in the proposed amended complaint and any reasonable
inferences that may be drawn in Genisâs favor from those
allegations are true. See Golchin v. Liberty Mut. Ins.
Co., 460 Mass. 222, 223 (2011). In so doing, however, it
must "look beyond the conclusory allegations in the
complaint and focus on whether the factual allegations
plausibly suggest an entitlement to relief." Maling
v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP,
473 Mass. 336, 339 (2015), quoting Curtis v. Herb
Chambers I- 95, Inc., 458 Mass. 674, 676 (2011).
Futility of Proposed New Claims Against Fraunhofer USA and
Trade Secret Claim
I of the proposed amended complaint would assert a claim for
misappropriation of trade secrets against Fraunhofer USA and
Schuelke. "The essence of an action for the wrongful use
of trade secrets is the breach of the duty not to disclose or
to use without permission confidential information acquired
from another." Jet Spray Cooler, Inc. v.
Crampton, 377 Mass. 159, 165 (1979).
typical case (as with the claims against the Campbells and
Pure Crystal), to state a claim for misappropriation of trade
secrets a plaintiff must allege facts plausibly suggesting
that: "1) the information is a trade secret; 2) the
plaintiff took reasonable steps to preserve the secrecy of
the information; and 3) the defendant used improper means, in
breach of a confidential relationship, to acquire and use the
trade secret." See Protege Software Servs., Inc. v.
Colameta, Middlesex civ. action 09-03168, 30
Mass.L.Rptr. 127, 2012 WL 3030268, at *11 (Mass.Super. July
16, 2012) (Kirpalani, J.), quoting Incase, Inc. v. Timex
Corp.,488 F.3d 46, 52 (1st Cir. 2007) (applying