The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE DEFENDANT'S RENEWED MOTION TO DISMISS; GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO LATE FILE DEFINITE STATEMENT
Today the court considers whether the pro se plaintiff, Robert McQueen, has, with the particularity necessary to survive a motion to dismiss in accordance with Federal Rule of Civil Procedure 9(b), adequately pleaded fraudulent misrepresentation against the defendant, Woodstream Corporation. In its last order, the court concluded that the plaintiff had not, but afforded him an opportunity to cure this deficiency by specifying what technology the defendant allegedly misappropriated and which of the defendant's commercial products allegedly incorporate his technology. In its renewed motion to dismiss, the defendant fatally faults the plaintiff for, first, failing to file a timely amendment to his complaint, and, second, for again failing to specify the technology that the defendant allegedly misappropriated and the products that exhibit it. As to the first grievance, while the untimeliness of the plaintiff's amendment is inexcusable, it is not -- considering the lenity owed to pro se plaintiffs -- inherently fatal to his case. The court, therefore, grants the plaintiff's motion to late file his definite statement. As to the second, the court concludes that the defendant's amended complaint does, even if just barely, overleap the hurdle of Rule 9(b). The court, therefore, denies the defendant's renewed motion to dismiss.
The pro se plaintiff is the majority owner and President of Robin Services, Inc., a corporation based in Washington, D.C. that develops and markets products for catching insects and pests. Pl.'s Brief on Venue ("Pl.'s Brief"), Ex. 3 ("Jenkins Aff."). The defendant, Woodstream Corporation, is a pest control company based in Lititz, Pennsylvania. Id. at 2.
Shortly before January 21, 1992, employees for the defendant initiated a series of contacts with the plaintiff's company to pursue a potential joint business venture. Id. at 1-2. First, an employee of the defendant's holding company called the plaintiff's representative in his Washington, D.C. office to discuss potential business opportunities between the defendant and the plaintiff's company. Id. Soon after, a Woodstream vice president called the plaintiff's representative, again at his Washington, D.C. office, to discuss the plaintiff's product and to invite the representative to Woodstream's Pennsylvania office for a demonstration. Id. at 2. On January 21, 1992, and again on February 14, 1992, the vice president sent follow-up letters to the plaintiff's representative at his Washington, D.C. office to confirm various aspects of the ongoing negotiations. Pl.'s Brief, Ex. 1 & 2. In furtherance of this potential venture -- and at the invitation of the defendant -- a representative of the plaintiff's company traveled to the defendant's Pennsylvania office to demonstrate the plaintiff's product. Id. at 2. The representative later sent samples of the product to the office for evaluation. Id.
Communications between the parties came to an end later that year, after the defendant repeatedly informed the plaintiff that no decision had been made and that it was still assessing the product. Am. Compl. ¶ 10. That product, as described by the plaintiff, is "an enclosed, harborage trap, with disposable glue panels, to catch small crawling insects and mice." Id. ¶ 7. The plaintiff allegedly learned that the defendant was selling a product that incorporated the plaintiff's technology "sometime in 2003" when reading an advertisement in the August 2003 edition of Pest Control Technology magazine. Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") at 3; Pl.'s Supp. Statement in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Supp."), Ex. 4.
On October 21, 2005, the plaintiff filed a complaint alleging that the defendant misappropriated his technology.*fn1 Compl. ¶¶ 12-14. On November 16, 2006, the plaintiff filed an amended complaint that abandoned his allegations of patent infringement and added common law causes of action for fraudulent misrepresentation and breach of implied contract. Am. Compl. ¶¶ 13-16. The defendant filed a motion to dismiss arguing, inter alia, that the applicable statutes of limitations bar the plaintiff's claims. Def.'s Mot. to Dismiss ("Def.'s Mot.") at 6-7. The defendant also moved for a more definite statement with respect to "certain portions of the amended complaint that are ambiguous or unclear." Id. at 13.
On August 10, 2007, the court issued a memorandum opinion and order resolving the motion. Mem. Op. (Aug. 10, 2007). The court held that the plaintiff's fraudulent misrepresentation claim was not barred by the statute of limitations. Id. at 8. Additionally, the court determined that because the defendant failed to explain why the plaintiff's discovery of the alleged misappropriation occurred past the deadline of a reasonable inquiry, the fraud claim related back to the date of the original complaint.*fn2 Id. at 8-11. Finally, while the court granted the defendant's motion for a more definite statement -- providing the plaintiff leave to amend his fraud claim to cure its deficiencies and meet the heightened pleading standards of Rule 9(b), id. at 15 -- the court dismissed the plaintiff's breach of contract claim as barred by the statute of limitations. Id. at 18.
On December 14, 2007, over four months after the court's order granting the plaintiff leave to amend, the defendant filed a renewed motion to dismiss the plaintiff's fraud claim for failure to comply with the court's order. Def.'s Renewed Mot. to Dismiss ¶¶ 5-6. The defendant observed that the plaintiff failed to file his more definite statement within 10 days of the court's order, as required by Federal Rule of Civil Procedure 12(e). Id. ¶ 4. On December 20, 2006, the plaintiff filed an opposition, requesting leave to file as late a more definite statement. Pl.'s Opp'n at 1, Ex. 1. The plaintiff claims that he was unable to meet the requirements of the court's order ...