McCASH v. TAMIR BIOTECHNOLOGY, INC., No. 2:2017cv02721 - Document 38 (D.N.J. 2017)
Court Description: OPINION. Signed by Chief Judge Jose L. Linares on 8/18/17. (sr, )
Download PDF
<![CDATA[
NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT Of NEW JERSEY Civil Action No.: 17-272 1 (JLL) Plaintiff, OPINION v. TAMIR BIOTECHNOLOGY, INC., Defendant. LINARES, Chief Distnct Judge. This matter comes before the Court by way of a Motion to Dismiss this action filed on behalf of Defendant Tamir Biotechnology, Inc. (“the Company”). (ECF No. 2 1-1). Plaintiff James 0. McCash has opposed the Motion. (ECF No. 30). Defendant has replied to Plaintiffs Opposition. (ECF No. 32). The Court decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 7$. for the reasons set forth below, the Court grants Defendant’s Motion to Dismiss. I. Background’ Plaintiff James 0. McCash is a resident of the State of Michigan. (ECF No. 1, Complaint, “Compi.” ¶ 1). Defendant Tarnir Biotechnology, Inc. is a Delaware corporation with its principal The facts as stated herein are taken as alleged by Plaintiff in the Complaint. (ECF No. 1). For pcirposes of this Motion to Dismiss, these allegations are accepted by the Cocirt as true. See Phillips i’. County ofAlleghenv, 515 F.3d 224, 234 (3d Cir.2008) (“The District Court. in deciding a motion [to dismiss under Rulel I 2(b)(6), was required to accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to [the plaintiff].”). Dockets.Justia.com JAMES 0. MCCASH, place of business in New Jersey (Id. Company. (Id. ¶ 2).2 Plaintiff is a former investor in and shareholder of the ¶ 6). In October 2009, Plaintiff provided financing to Defendant to initiate a Phase II trial of the drug Onconase “in relation to the treatment of patients with Non-Squamous, Non-Small Cell Lung Cancer.” (Id. 1 7). Thereafter, Defendant shifted its efforts to the development of an anti-viral use for Onconase. (Id. ‘ 8). Plaintiff alleges that this shift in focus both was contrary to the express purpose of his financing of Onconase and ultimately resulted in the cancellation of the Phase II trial in early 2011. (Id.). In the months that followed, Defendant agreed to entertain potential partners and buyers for the Onconase platform. (Id. ¶ 9). Defendant notified Plaintiff that if he was interested in buying the platform, he should submit a proposal detailing, inter ct/ia, an asset valuation. (Id.). Plaintiff alleges that, in or around March or April 2011, Defendant refused to negotiate with Plaintiff in good faith and failed to give Plaintiff the necessary information for him to provide a sufficient proposal or valuation. (Id. ¶J 10, 11). Plaintiff further alleges that during this same period, due to storage and other related costs, Defendant notified Plaintiff that it would destroy certain components of and materials related to its Onconase inventory and cease making governrnnt agency filings. (Id. ¶ 11). Plaintiff objected to the destruction of these assets, citing them as part and parcel of the Onconase platform Plaintiff sought to obtain. (Id. ¶ 12). Plaintiff further alleges that handwritten notes indicate that Defendant told Plaintiff “anything he want{ed] to hear” so that Plaintiff would continue to finance the Company. (Id. 2 ¶ 13). Plaintiff’s Complaint alleges that Defendants principal place of business is San Diego, Calilbrnia. (Compl. 2). However, the Honorable RobertJ. Jonker, U.S.D.J. of the Western District of Michigan. Southern Division, previously stated that “jijt is undisputed that Tamirs place of incorporation is Delaware and its principal place of business is in New Jersey.” (ECE No. 16 at 4). This Court sees no reason to disturb Judge Jonkers finding. 7 Against the above facts, Plaintiff fiLed a lawsuit against Defendant on June 26, 2012 in the Circuit Court of Cook County, Illinois, alleging fraud and breach of fiduciary duty (“2012 Lawsuit”). (Id. ¶ 36). Bettveen the initiation of the 2012 Lawsuit and September 18, 2012, Plaintiff and his anticipated business partner, Michael Hawotte (“Mr. Hawotte”). engaged in negotiations with Defendant through interim CEO and CFO Larry Kenyon (“Mr. Kenyon’). (Id. ¶ 17). Plaintiff alleges that the Parties ultimately reached an agreement to resolve the issues surrounding the 2012 Lawsuit. (Id.). Plaintiff alleges that the agreement between Plaintiff and Defendant is memorialized in various documents “including but not limited to the Confidential Offer executed in September2012 (attached as Exhibit A).” (Id. ¶ 19, Exhibit A). The document most salient to this case is the Confidential Offer to Acqciire the Oncology Rights to Onconase (“Confidential Offer”). which Plaintiff alleges set forth the material terms of the alleged agreement.3 (Id. ¶ 20, Exhibit A). According to the express terms of the Confidential Offer, Plaintiff was allegedly required to withdraw the 2012 Lawsuit and convert five (5) promissory notes made by Defendant into Tamir common stock. (Id. ¶J 21). Plaintiff alleges that he complied with these obligations. (Id. ¶J 25). Plaintiff further alleges that per the Confidential Offer, Defendant agreed to (1) grant Plaintiff the exclusive license for the development, manufacturing, marketing, and sale of Onconase; (2) grant Plaintiff the exclusive license to all intellectual property related to the oncological use of According to the Complaint, the details of the Confidential Offer were discussed and negotiated by Mr. Hawotte and Mr. Kenyon via email and telephone between late JLlne 2012 and September 18, 2012. (Id. ¶f 20). Ptaintiff alleges that during this time, various drafts and markups of the Confidential Offer, containing material terms of the Agreement, were exchanged. (id.) However, Plaintiff has failed to submit to the Court—by way of an additional attachment or otherwise—any documents regarding the Agreement other than the Confidential Offer. (Compi. at Exhibit A). Not\vithstanding Plaintiffs continued reference in the Complaint to a separate “Agreement’ and “Confidential Offer” (Id. V 17, 19). for purposes of clarity, the Court considers the Confidential Offer to be representative of any alleged agreement reached between Plaintiff and Defendant regarding Plaintiffs dismissal 01’ the 2012 Lawsuit. Further. for the reasons discussed below, the Cocirt finds that this Confidential Offer does not constitute a legally-binding agreement. 3 Onconase; (3) turn over to Plaintiff all finished product, a portion of both active pharmaceutical ingredient (‘API”) inventory and raw materials, all oncology regulatory files, and all oncology manufacturing files for Onconase; and (4) provide Plaintiff with a warrant to purchase 23,700,000 shares in Tarnir at a price of $0.01 per share. (Id. ¶ 22). Following Plaintiffs signing of the Confidential Offet, Plaintiff moved forward with plans to advance the Onconase platform. (Id. ¶ 28). Specifically, Plaintiff formed partnerships with third-parties to assist in the management and financing of a 60-patient trial. (Id.). Plaintiff also engaged in discussions centered around the use of Onconase and related clinical trial research opportunities with the Mayo Clinic of Rochester, Minnesota. (Id.). Plaintiff alleges that as a result of Defendant’s delay in providing the items required under the Confidential Offer, the Mayo Clinic and other third-parties abandoned efforts and discussions regarding the Onconase platform. (Id. ¶ 30). According to the Complaint, Plaintiff received inconsistent correspondence from Defendant regarding both the existence of items Plaintiff alleges he was due under the Confidential Offer, and Defendant’s alleged obligations pursuant to the Confidential Offer. (Id. ¶I 32-34). Plaintiff alleges that, on May 28, 2013, the President of the Company, Dr. Jamie Sulley (“Dr. Stilley”) confirn-ied by written correspondence the terms of the Confidential Offer. (Id. ¶ 32). Plaintiff further alleges that Dr. Sulley both confirmed the existence of the regulatory files, eggs, and canisters of API, and acknowledged Defendant’s obligation to turn them over to Plaintiff pursuant to the Confidential Offer. (Id.). On July 19, 2013, Plaintiff received correspondence from Lois B. Voelz (“Ms. Voelz”), an attorney representing Defendant, informing Plaintiff that the Investigational New Drug Application was “inactive.” (Id. ¶J 33-34). According to the Complaint, Ms. Voelz would not 4 indicate whether the regulatory files, eggs, and canisters of API still existed. (Id. ¶ 34). Ms. Voelz also asserted, in reference to a prior telephone call on June 20, 2013, that the Confidential Offer “did not properly state the terms under negotiation” and that the Parties would be required to make a “fresh start with a new and comprehensive term sheet.” (Id. ¶ 35). Plaintiff alleges that Ms. Voelz’s correspondence was vague and that Plaintiff disagreed with the statements contained therein. (Id. with Defendant. (Id. ¶ ¶ 36). Nevertheless, Plaintiff continued to negotiate 37). Plaintiff reviewed several iterations of Defendant’s proposed term sheet and continued to inquire as to whether Defendant was in possession of the items Plaintiff believed he was due under the Confidential Offer. (Id.). Plaintiff alleges that during the course of this due diligence, the question remained whether Defendant was in possession of the items Plaintiff believed he was due pursuant to the Confidential Offer. (Id. ¶ 3$). After asking Ms. Voelz whether these items were still in Defendant’s possession, Plaintiff received written correspondence from Ms. Voelz, dated August 24, 2014, indicating that ‘the Company [would] notentertain [his] extraneous demands concerning company assets.” (Id. ¶ 38-39). Against this backdrop, Plaintiff initiated the present action against Defendant in the United States District Court for the Western District of Michigan, Northern Division on December 30, 2016. (ECF No. 1). On April 19, 2017, this matter was transferred to this Court pursuant to 2$ U.S.C. § 1404(a). (ECF No. 16). Plaintiff’s Complaint contains six claims: Breach of Contract (Count I); Unjust Enrichment (Count II); “Intentional” Misrepresentation (Count III); Promissory Estoppel (Count IV); Negligent Misrepresentation (Count V); and Innocent Misrepresentation (Count VI). (Compl. ¶ 41-81). The Court construes Plaintiff’s claim for ‘intentionaI misrepresentation” as a claim for fraudulent misrepresentation. 5 Defendant moved to dismiss Plaintiffs Complaint oti May 12, 2017 for failure to state a claim upon which relief can be granted. (ECF No. 21). Defendant argues that because the Confidential Offer was made by a fictitious entity that never came into existence, Plaintiffs claims should be dismissed as Plaintiff is not a real party in interest under Federal Rule of Civil Procedure 17(a). (ECF No. 21-1 at 2, 12). Further, Defendant argues that the language of the Confidential Offer is indicative of an absence of legal significance and is reflective of the document’s non binding nature. (Id. at 10). Defendant asserts that the Confidential Offer existed as a letter of intent and that the terms contained therein required other agreements and due diligence before the Parties could reach a binding contract. (Id.). Plaintiff has opposed Defendant’s Motion (ECF No. 30), and this mailer is now II. ripe for the Courts adjudication. Le%aI standard Federal Rule of Civil Procedure 8(a) requires that a Complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The plaintiffs short and plain statement of the claim must “‘give the defendant fair notice of what the • . . claim is and the grounds upon which it rests.” Be//Atlantic Corp. v Twonth[, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted as trite, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Two,nbly, 550 U.S. at 570). In evaluating the sufficiency of a complaint, a court must “accept all well-pleaded factual aLlegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party.’ Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quotations omitted). “factual allegations must be enough to raise a right to relief above the speculative level.” 6 Thvombly, 550 U.S.at 545. Further. “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a catise of action will not do. Nor does a complaint suffice if it tenders naked assertion[s]’ devoid of ‘further factual enhancement.” Iqbctl, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557); Evctncho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005) (“[A] Court tieed not credit either ‘bald assertions’ or ‘legal conclusions’ in a complaint when deciding a motion to dismiss.”). To that end, a Court considering a motion to dismiss must take account of the elements necessary to plead the claims alleged in the complaint. III. Analysis5 A. FederalRule of Civil Procedure 17(a) Defendant moves to dismiss Plaintiffs complaint for lack of standing pursuant to Federal Rule of Civil Procedure 17(a), which provides that [a]n action rntist be prosecuted in the name of the real party in interest.” (ECF No. 21-1 at 12-13; ECF No. 32 at 2-3). Specifically, Defendant argues that Plaintiff lacks standing because the Confidential Offer was made between Defendant and a fictitious entity, ‘a Company (name TBD),” which Plaintiff has not officially formed. (Id.). Therefore, according to Defendant. only “a Company (named TED)” has standing to sue on the Confidential Offer. (ECF No. 21-1 at 12-13; ECF No. 32 at 2-3). Defendant cites a Fifth Circuit case, Schctffer v. Universctl Rundle Corp., 397 F.2d 893 (5th Cir. 1968). for “the general rule that a corporation is the proper party to bring contract and tort claims on its own behalf” (ECF No. 32 at 3). The Court is not moved by Defendant’s standing Procedure 17(a)(l) provides that “[am argument. Federal Rule of Civil action must be prosecuted in the name of the real party in interest.” Rule 17 lists parties that “may sue in their own names without joining the person for The Parties agree that New Jersey law controls all ofPlaintilis claims. (See ECE No. 21-1 at 11-12; ECE No.30 at 5). 7 whose benefit the action is brotight[.]” Fed. R. Civ. P. 1 7(a)(l). Among those parties is a party with whom or in whose name a contract has been made for another’s benefit{.]” Fed. R. Civ. P. 1 7(a)( 1 )(f). “The real party in interest ensures that under governing substantive law, the plaintiffs are entitled to enforce the claim at issue.” H3 General Corp. v. Manchester Partners, L.F., 95 F.3d 1185, 1196 (3d Cir. 1996). Advisoty Committee Notes to the 1966 Amendment of Rule 17 provides that “the modern function of the nile in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as resjudicata.” In this case, Defendant concedes that the “Company” on whose behalf the Confidential Offer was signed “remains fictitious to date and was never formed.” (ECF No. 21-1 at 12). Accordingly, this case does not present a risk that Defendant will be sued by Plaintiff and then again by a non-existent entity. Moreover, the Confidential Offer stated that the “Company (name TBD)’ is “a private and solely owned entity represented by James 0. McCash (Compi. at Exhibit A) (emphasis added). Plaintiff is James 0. McCash who also signed the Confidential Offer. (Id.). Accordingly, the Court rejects Defendant’s argument that Plaintiff lacks standing. B. Breach of Contract Defendant moves to dismiss Plaintiffs claim for breach of contract for failure to state a claim upon which relief can be granted. (ECF No. 21-1 at 13-16). Defendant argues that the Confidential Offer expressly stated that it is a non-binding letter of intent indicating an intent not to be bound thus mak[ing] clear that it has no legal significance.” (Id. at 16). Plaintiff argues that the Confidential Offer is a valid and enforceable contract because the Confidential Offer sets out all agreed upon material terms between the Parties and “only perfunctory and routine elements, 8 such as execution of subsequent ‘confidentiality agreements’ and completion of ‘satisfactory’ ‘due diligence’ remained.” (ECF No. 30 at 7). Plaintiff further argues that a letter of intent is enforceable where there is evidence that the Parties intended to be bound. (Id. at 8). “A contract arises from offer and acceptance, and must be sufficiently definite ‘that the performance to be rendered by each party can be ascertained with reasonable certainty.” Weichert Co. Realtors e. Ryan, 128 N.J. 427, 435 (1992) (quoting West Caldwellv. Caldwell, 26 N.J. 9,2425 (1958)); see also Ttibbs v. Northern Am. Title Agency, 531 fed. Appx. 262, 268-69 (3d Cir. 2013). •‘Therefore[,1 parties create an enforceable contract when they agree on its essential terms and manifest an intent that the terms bind them.” Baer v. Chase, 392 F.3d 609, 619 (3d Cir. 2004). Moreover, “[i]t is requisite that there be an unqualified acceptance to conclude the manifestation of assent.” Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 539 (1953); see also Weichert Co. Realtors, 128 N.J. at 436-37. Depending on the ultimate intentions of the parties, a letter of intent may or may not bind the parties. See Ilowite v. Diopsys, No. 04-2368, 2008 WL 305267, at *4 (D.N.J. Jan. 31, 2008) (finding that “there is ample evidence to show that the parties intended the Letter [of Intent] to constitute a contract”); Bunky, Inc. v. Hammel, No. MID-L-167-04, 2005 WL 3772487, at *5 (N.J. Super, Court. App. Div. Feb. 17, 2006) (citing Morales v. Santiago, 217 N.J. Super. 496, 501 (App. Div. 1987)). Indeed, “[i]f the parties intend to be bound by their preliminary agreement and view the later written contract as merely a memorialization of their agreement, they are bound by the preliminary agreement.” Bunicy, Inc., 2005 WL 3772487, at *5 (quoting, in full, Morales, 217 N.J. Super. at 50 1-02). Otherwise, the parties are not bound by the letter of intent. Id. Defendant argues that the Confidential Offer is nothing more than a letter of intent and as such, Plaintiff fails to state a claim upon which relief can be granted for breach of contract. (ECF 9 No. 21-1 at 13-16). Plaintiff relies onllowite v. Diopsys, No. 04-2368, 2008 WL 305267 (D.N.J. Jan. 31, 2008), for the proposition that a valid contract exists where a letter of intent sets out all “material terms establishing the rights and obligations of the parties.” (ECF No. 30 at 8). In Ilowite, the court cited language in the letter of intent indicating that the parties’ intent was for the letter to be an offer of employment. See Itowite, 2008 WL 305267, at *4.5 Indeed, the letter of intent contained explicit language that it was an offer of employment, and there was strong evidence that the parties intended to be bocind by the letter of intent because of the defendant’s subsequent conduct in naming the plaintiff as an employee listed on its website. See id. This case is distinguishable from Ilowite. Nowhere did the letter of intent in Ilowite state that it had no legally binding effect, see generally Ilowite, 2008 WL 305267, whereas here, the Confidential Offer explicitly stated that “[t]his offer is an expression of intent and nothing implied shalt have any legal binding obligation except for breach of confidentiality.” (Compi. at Exhibit A) (emphasis added). The Confidential Offer further states that “LaJll proposed terms to be agreed upon after execution of appropriate confidentiality agreements and completion of satisfactory due diligence by the undersigned and/or designated agents.” (Id.) (emphasis added). This express language demonstrates the clear intent of both Parties to not be bound by the Confidential Offer but rather to narrow negotiations for a future agreement. Moreover, Plaintiff fails to allege any facts or conduct of Defendant indicating that Defendant intended the Confidential Offer to be legally binding. As such, the Confidential Offer is not a contract beyond imposing an obligation of confidentiality. Therefore, the Court will grant Defendant’s motion to dismiss Plaintiffs claim for breach of contract, and will dismiss that claim without prejudice. C. Unjust Enrichment 10 Defendant moves to dismiss Plaintiffs claim for unjust enrichment for failure to state a claim upon which relief can be granted. (ECF No. 21-1 at 20). Defendant argues that the express language of the Confidential Offer runs contrary to any reasonable inference that Plaintiff expected any sort of remuneration from any alleged benefit conferred on Defendant. (Id. at 2 1-22). Plaintiff argues that the Confidential Offer was binding, that he fulfilled its terms, and that he expected remuneration. (ECF No. 30 at 14). “To establish unjust enrichment, a plaintiff must show both that defendant received a benefit and that retention of that benefit without payment would be unjust.” VRG Corp. v. GKAT Realty Corp., 135 N.J. 539, 554 (1994)). In addition, Plaintiff must have “expected remuneration from the defendant at the time it performed or conferred a benefit on defendant and that the failure of remuneration enriched defendant beyond its contractual rights.” Id.; see also Callctno v. Oah’ood, 91 N.J. Super. 105, 109 (App. Div. 1966). Plaintiff argues that it would be unjust to not receive restitution from Defendant after Plaintiff dropped the 2012 Lawsuit against Defendant and converted five promissory notes into Tamir common stock under the terms of the Confidential Offer. (Compi. ¶J 21, 25, 46-50). However, by the mere fact that the Confidential Offer stated that it was not legally binding (Cornpl. at Exhibit A), Plaintiff could not have expected remuneration. As such, Plaintiffs claim for unjust enrichment is dismissed without prejudice, as to allow Plaintiff an opportunity to amend his deficient pleading. B. Promissory Estoppel Defendant moves to dismiss Plaintiffs claim for promissory estoppel for failure to state a claim upon which relief can be granted. (ECF No. 21-1 at 20). Defendant argues that the Confidential Offer was a letter of intent and that Plaintiff could not have reasonable relied upon 11 an expression of a future intention because those do not constitute sufficiently definite promises. (Id. at 19-20). Plaintiff argues that the Confidential Offer “ratified the promises and representations made therein.” (ECF No. 30 at 13). As such, Plaintiff argues that he reasonably relied on the terms of the Confidential Offer. (Id.). Under New Jersey law, “[t]he elements of promissory estoppel are: ‘1) a clear and definite promise, 2) made with the expectation that the promisee will rely upon it, 3) reasonable reliance upon the promise, 4) which results in definite and substantial detriment.’” Newark Cab Association v. City ofNewark, No. 16-4681, 2017 WL 214075, at *7 (D.N.J. Jan 18, 2017) (quoting E. Orange 3d. of Ethtc. v. N.J Sc/i. Const. Corp., 405 N.J. Super. 132, 148 (App. Div. 2009)). Reasonable reliance does not exist where it is based on “a mere expression of future intention . because such expressions do not constitute a sufficiently definite promise.” Del Sontro v. Cendant Corp., Inc., 223 F. Supp 2d 563, 576 (D.N.J. 2002) (quoting In re Phi/tips Petroleum Sec. Litig., 881 F.2d 1236, 1250 (3d Cir. 1989)). Plaintiffs Complaint alleges that the Confidential Offer constituted a promise, that Defendant reasonably expected that it would induce action by Plaintiff, and that Plaintiff was reasonable to rely on it as a promise. (Compi. ¶ 60-63). However, this argument fails because the Confidential Offer stated, “[tihis offer is an expression of intent and nothing implied shall have any legal binding obligation except for breach of confidentiality.” (Compl. at Exhibit A) (emphasis added). In other words, the Confidential Offer existed as a letter of intent to negotiate future terms. Reasonable reliance does not exist when based solely on future intentions “because such expressions do not constitute a sufficiently definite promise.” Del Sontro, 223 F. Supp. 2d at 576 (quoting In re Phillips Petroleum Sec. Litig., 881 F.2d at 1250). Accordingly, Plaintiffs claim 12 for promissory estoppel is dismissed without prejudice, as to allow Plaintiff an opportunity to amend his deficient pleading. E. Fraudulent Misrepresentation Defendant moves to dismiss Plaintiffs claim for fraudulent misrepresentation for failure to state a claim upon which relief can be granted. (ECF No. 21-1 at 16-17). Defendant argues that “misrepresentation claims cannot be predicated upon statements that are promissory in nattire at the time they are made and that involve actions to be performed at a future time.” (Id. at 17). Further, Defendant argues that Plaintiff could not have reasonably relied on the Confidential Offer when it stated that it was not legally binding. (Id. at 18). In addition, Defendant maintains that any fraudulent misrepresentation claims alleged outside the Confidential Offer fail the heightened pleading requirement of federal Rule of Civil Procedure 9(b). (Id. at 18). Plaintiff, for his part, argues that fraudulent misrepresentations occurred regarding Defendant’s willingness to enter into an agreement and its ability and intent to fulfill its obligations had an agreement been reached. (ECF No. 30 at 11). Specifically, Plaintiff argues that there was a fraudulent misrepresentation when Defendant allegedly confirmed the existence of API and other materials then later refused to confirm the existence of these materials. (Id. at 12). Claims sounding in fraud must be pled under the heightened standards of Federal Rule of Civil Procedure 9(b). Byrnes v. DeBolt Transfei Inc., 741 F.2d 620, 626 (3d Cir. 1984). The Third Circuit has set forth the following requirements for pleading fraud: In order to satisfy Rule 9(b), plaintiffs mcist plead with particularity “the ‘circumstances’ of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against sptirious charges of immoral and fraudulent behavior.” Seville Inchis. Mctch. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984). Plaintiffs may satisfy this requirement by pleading the “date, place or time” of the fraud. or through “alternative means of injecting precision and some measure of substantiation into their allegations of fraud.” Id. 13 Lttm v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004). With this in mind, the Court turns to New Jersey law. In order to plead a fraud-based claim in New Jersey, a plaintiff must allege: “(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Gennctri v. Weichert Co. Realtors, 148 N.J. 582, 610 (N.J. Sup. Ct. 1997). Moreover. [t]he misrepresentation has to be one which is material to the transaction and which is a statement of fact, found to be false[.]” Id. at 607 (internal quotations omitted). Here, Plaintiff has failed to adequately plead a claim for fraudulent misrepresentation. Plaintiffs general allegation that Defendant intentionally and knowingly made material promises and representations about the ability or intent to perform does not comply with the heightened pleading standard for fraud. Fed. R. Civ. P. 9(b). Moreover, Plaintiffs claim is predicated on alleged promises and representations contained in the Confidential Offer, which stated that “[tJhis offer is an expression of intent and nothing implied shall have any legal binding obligation except for breach of confidentiality.” (Compl. at Exhibit A) (emphasis added). This clearly indicates, as stated above, that the Confidential Offer was a letter of intent and tiuts did not speak to any ‘presently existing or past fact[.J” Gennari, 148 N.J. at 610. Moreover, with respect to alleged misrepresentations made by the Defendant regarding its abitity and intent to deliver the necessary products, inventory, materials, and files to Plaintiff, Plaintiff fails to establish the most basic element of fraud. (Cornpl. ¶J 32, 55). Namely, Plaintiff fails to allege that Defendant made a material misrepresentation. See Geiznari, 148 N.J. at 610. In fact, Plaintiff fails to assert that Defendant made any false statement of fact altogether. Plaintiff appears to allege that there was a fraudulent misrepresentation when Defendant confirmed the 14 existence of API and other materials then later refused to confirm their existence. However, Plaintiff does not allege that the API and other materials do not exist. Additionally, Ms. Voelz’s failure to confirm the existence of the regulatory files, eggs, and canisters of API is not a direct assertion of fact. (Cornpl. ¶ 34). Moreover, Ms. Voelz’s failure to confirm the existence of these items is neither inconsistent with Dr. Sulley’s earlier confirmation, nor does it amount to anything that can be construed as a material misrepresentation of a presently existing or past fact. Therefore, Plaintiffs claim for fraudulent misrepresentation is dismissed without prejudice, as to allow Plaintiff an opportunity to amend his deficient pleading. F. Negligent Misrepresentation Defendant moves to dismiss Plaintiffs claim for negligent misrepresentation for failure to state a claim upon which relief can be granted. (ECF No. 21-1 at 16-17). Defendant argues that ‘misrepresentation claims cannot be predicated upon statements that are promissory in nature at the time they are made and that involve actions to be performed at a future time.” (Id. at 17). Defendant further argues that Plaintiff could not have reasonably relied on the Confidential Offer when it stated that it was not legally binding. (Id. at 18). In opposition, Plaintiff argues that Defendant negligently misrepresented its willingness to enter into an agreement, and its ability and intent to fulfill its obligations had an agreement been reached. (ECF No. 30 at 11). Specifically, Plaintiff argues that negligent misrepresentation occurred when Defendant allegedly confirmed the existence of API and other materials then later refused to confirm their existence. (Id. at 12). Under New Jersey law, a claim for negligent misrepresentation is the same as fraudulent misrepresentation, absent the requirement of scienter. See Kaufman v. i-Stctt Corp, 165 N.J. 94, II 0 (2000). “In particular, . . . negligent misrepresentation requires a showing that defendant negligently provided false information and that plaintiff incurred damages proximately caused by 15 its teliance on that information.” Highlands Ins. Co. v. Hobbs Group, LLC., 373 F.3d. 347, 351 (3d Cir. 2004) (citing Kant v. feldman, 119 N.J. 135, 146-47 (1990)). Therefore, “{t]o establish a claim for negligent misrepresentation, a plaintiff must establish that (1) a false statement, (2) was negligently made, (3) plaintiff justifiably relied on that statement, and (4) suffered economic loss or injury because of the reliance.” Eberhart v LG Electronics USA, Inc., 18$ F. Supp. 3d 401, 409 (D.N.J. 2016). Here, Plaintiffs claim for negligent misrepresentation fails for the same reasons as his claim for fraudulent misrepresentation. Plaintiff does not allege facts suggesting any false statement was made by Defendant. Indeed, the Confidential Offer was a letter of intent and thus did not speak to any fact constituting an actionable misrepresentation claim. Moreover, Plaintiff fails to allege that the API and other materials do not exist, or that Defendant inconsistently stated their existence. As such, Plaintiff fails to satisfy either of the first two elements of a claim for negligent misrepresentation under New Jersey law. Id. Accordingly, Plaintiffs claim for negligent misrepresentation is dismissed without prejudice, as to allow Plaintiff an opportunity to amend his deficient pleading. G. Innocent Misrepresentation New Jersey law “do{esJ not recognize innocent misrepresentation as an independent cause of action.” TekDoc Serv., LLC v. 3i-Infotech Inc., No. 09-6573, 2012 WL 3560794, at *11 (D.N.J. Aug. 16, 2012) (citing Commercial Cast talty Ins. Co. v. Southern Surety Co. ofDes Moines, Iowa, 100 N.J. Eq. 92, 96 (Ch. 1926)). Defendant has raised this issue in its motion, (ECF No. 21-1 at 17), and Plaintiff has conceded that he “intends to pursue only his claims for intentional and negligent misrepresentation.” (ECF No. 30 at 10). Accordingly, Plaintiffs claim for innocent misrepresentation is dismissed with prejudice. 16 IV. Conclusion for the aforementioned reasons. Defendants Motion to Dismiss is granted. Plaintiffs claims for Breach of Contract (Count I), Unjust Enrichment (Count II), lntentionaI” Misrepresentation (Count III), Promissory Estoppel (Count IV), and Negligent Misrepresentation (Count V) are dismissed without prejudice. Further, Plaintiffs claim for Innocent Misrepresentation (Count VI) is dismissed with prejudice. An appropriate Order accompanies this Opinion. IT IS SO ORDERED. DATED: August j, 2017 }6’L. LIARES %HIEf JUDGE, U.S. DISTRICT COURT 17
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
