Clinmicro Immunology Ctr., LLC v. PrimeMed, P.C., CIVIL ACTION NO. 3:CV-11-2213

CLINMICRO IMMUNOLOGY CENTER, LLC, Plaintiff,

v.PRIMEMED, P.C. and JOAN SALIJKO, Defendants.

PRIMEMED, P.C., Counterclaim and Additional-Party Plaintiff,

v.CLINMICRO IMMUNOLOGY CENTER,

LLC and HASAN NAMDARI,

Counterclaim and Additional-Party Defendants.

CIVIL ACTION NO. 3:CV-11-2213

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date July 17, 2013

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court are the motion to dismiss PrimeMed, P.C.'s ("PrimeMed") counterclaims (Doc. 57) filed by Counterclaim Defendant ClinMicro Immunology Center, LLC ("ClinMicro") and the motion to dismiss PrimeMed's additional party claims (Doc. 58) filed by Additional-Party Defendant Dr. Hasan Namdari ("Dr. Namdari"). For the reasons that follow, the motions to dismiss will be granted in part and denied in part.

I. Background

A. Factual Background

PrimeMed alleges the following:

After PrimeMed was formed in 1998, it built and staffed a radiology imaging center, a nuclear imaging center, and a physical therapy center in the Scranton region. (Doc. 52,Countercl., ¶ 6.) In 2004, PrimeMed opened a radiation oncology center for cancer treatment, which has since been sold. (Id.) By 2006, PrimeMed had an extensive network of physicians and other healthcare providers who referred patients to PrimeMed's facilities. (Id. at ¶ 7.) PrimeMed also handled the collection of samples for medical testing, which it referred out to various laboratories. (Id.)

ClinMicro was formed in 2006. (Id. at ¶ 8.) ClinMicro provides microbiology and immunology reference laboratory services, but apart from its laboratory itself, Clinmicro has no collection centers, no phlebotomists, and no infrastructure for collecting samples for testing. (Id.)

In or about 2007, PrimeMed sought to expand its medical services to include laboratory testing. (Id. at ¶ 9.) PrimeMed contacted Dr. Namdari of ClinMicro. Ultimately, a series of agreements were entered into, effective March 1, 2009. (Id.) Pursuant to these agreements, ClinMicro would relocate its microbiology laboratory to a facility leased by PrimeMed, consult in the design, staffing, and operation, at PrimeMed's expense, of a clinical laboratory for PrimeMed, and manage for a fee and staff PrimeMed's clinical laboratory. (Id.) The parties' rights and obligations were set forth in the Laboratory Management Agreement ("LMA"). Because ClinMicro did not have the funds necessary to build or equip its new laboratory, PrimeMed advanced the money to ClinMicro. (Id. at ¶¶ 11-12.) This money was repaid reluctantly and tardily by ClinMicro, and ClinMicro refused to make payments on a promissory note for two years despite enjoying the use of the laboratory constructed with PrimeMed's money. (Id. at ¶ 12.)

Under a separate Reference Laboratory Service Agreement ("LSA"), ClinMicro agreed to accept referrals from and perform microbiology/immunology tests for PrimeMed. (Id. at ¶ 13.) There was not, however, an agreement to which ClinMicro would refer clinical tests to PrimeMed's laboratory. (Id. at ¶ 14.) PrimeMed did not make any money on testsit referred to ClinMicro under the LSA. (Id. at ¶ 15.) Instead, ClinMicro billed the patients' insurance directly and retained all of the proceeds. (Id.)

The parties' relationship soured shortly after its inception. (Id. at ¶ 18.) ClinMicro failed to pay rent under its sublease, failed to reimburse PrimeMed for equipment purchased for it, and failed to repay the loan made by PrimeMed. (Id. at ¶ 19.) ClinMicro claimed that payments were not made as a result of unresolved issues relating to the development fee provided for in the LMA. (Id. at ¶ 20.) ClinMicro and Dr. Namdari attempted to surreptitiously insert an Addendum to the LMA which had never been agreed to or discussed with PrimeMed. (Id. at ¶ 21.)

In the Spring of 2009, Dr. Namdari, in his position as Medical Director of PrimeMed and employer of PrimeMed's lab manager, took action to his own benefit at PrimeMed's expense with regard to the profitable Vitamin D testing. (Id. at ¶ 25.) When the PrimeMed laboratory began operating, ClinMicro was not performing Vitamin D tests. (Id. at ¶ 27.) At the time PrimeMed commenced operations, Dr. Namdari and ClinMicro obtained pricing from Quest for referral of Vitamin D tests and other tests that ClinMicro and PrimeMed were not performing. (Id. at ¶ 28.) Dr. Namdari learned that Quest's price for Vitamin D testing when compared with the much higher insurance reimbursement rate made those tests quite profitable. (Id. at ¶¶ 29-30.) Dr. Namdari instructed Joan Salijko ("Salijko"), the lab manager, to refer Vitamin D tests to ClinMicro. (Id. at ¶¶ 31-32.) Vitamin D tests, however, are classified as chemistry tests and not microbiology tests. (Id. at ¶ 33.) When ClinMicro first began doing chemistry tests, it was not licensed to perform such tests. (Id. at ¶ 36.)

ClinMicro and Dr. Namdari never informed PrimeMed that the Vitamin D tests directed to ClinMicro were actually chemistry tests. (Id. at ¶ 39.) Nor did ClinMicro and Dr. Namdari advise PrimeMed that ClinMicro was not licensed to do Vitamin D testing. (Id. at ¶ 40.)

B. Procedural History

ClinMicro commenced this action on November 29, 2011 against PrimeMed and Salijko asserting a federal law claim for violation of the Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030, et seq., and a number of supplemental state law claims. (Doc. 1.) PrimeMed subsequently sought dismissal of a number of the state law claims in January 2012. (Doc. 10.) The motion to dismiss was granted in part and denied in part. In particular, the motion to dismiss was granted with respect to the fraudulent inducement and the duty of good faith and fair dealing claims, and the claims were dismissed with prejudice. The motion to dismiss the tortious interference with contracts claims was also granted, and the claims were dismissed without prejudice. PrimeMed's motion to dismiss was denied in all other respects.

On August 8, 2012, ClinMicro filed an Amended Complaint. PrimeMed and Salijko moved to dismiss the tortious interference claims. The motion to dismiss was denied, and Defendants were ordered to file an answer to ClinMicro's Amended Complaint.

On January 9, 2013, PrimeMed and Salijko filed their Answer and Affirmative Defenses to the Amended Complaint. On that date, PrimeMed also filed counterclaims against ClinMicro and additional party claims against Dr. Namdari. PrimeMed asserts the following claims: Fraud (First Claim); Negligent Misrepresentation and Non-Disclosure (Second Claim); Misappropriation (Third Claim); Breach of Trust/Fiduciary Duty (Fourth Claim); Tortious Interference (Fifth Claim); Breach of Covenant of Good Faith and Fair Dealing (Sixth Claim); and Unjust Enrichment (Seventh Claim). All claims except the Sixth Claim, which is set forth against ClinMicro only, are asserted against both ClinMicro and Dr. Namdari. On March 11, 2013, ClinMicro and Dr. Namdari moved to dismiss PrimeMed's counterclaims and additional party claims. Now, the motions to dismiss are fully briefed and ripe for disposition.

II. Legal Standard

"Courts use the same standard in ruling on a motion to dismiss a counterclaim under Federal Rule of Civil Procedure 12(b)(6) as they do for a complaint." PPG Indus., Inc. v. Generon IGS, Inc., 760 F. Supp. 2d 520, 524 (W.D. Pa. 2011) (citing United States v. Union Gas Co., 743 F. Supp. 1144, 1150 (E.D. Pa. 1990)).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a counterclaim plaintiff's claims, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a counterclaim plaintiff is entitled to offer evidence in support of their claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a counterclaim plaintiff will ultimately prevail. See id. A counterclaim defendant bears the burden of establishing that a counterclaim fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

"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). The statement required by Rule 8(a)(2) must "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory statements will not do; "a [counterclaim] must do more than allege the [counterclaim] plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a counterclaim must "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a [counterclaim], they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950,173 L. Ed. 2d 868 (2009). As such, "[t]he touchstone of the pleading standard is plausability." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

The inquiry at the motion to dismiss stage is "normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the [counterclaim] to strike conclusory allegations, and then (3) looking at the well-pleaded components of the [counterclaim] and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the counterclaim, a counterclaim plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Two...