Opinion
NO. 4:01-CV-0498-A
October 16, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, Lockheed Martin Corporation, ("Lockheed") for judgment on the pleadings. The court, having considered the motion, the response of plaintiff, Boyd Bushman, the reply, the record, and applicable authorities, finds that the motion should be granted, at least in part, but that it must be denied at this time.
Lockheed Martin Corporation is the sole remaining defendant in this action. The motion was also brought on behalf of Joe W. Stout, but the claims against him have been dismissed by separate order and final judgment.
I. Status of the Proceedings
On April 27, 2001, plaintiff filed his original petition in the 342nd Judicial District Court of Tarrant County, Texas. On June 8, 2001, defendants filed their original answer in state court. They specifically denied that "Lockheed Martin Tactical Aircraft Systems, Inc. d/b/a Lockheed Martin Aeronautics Company, Fort Worth" was a legal entity capable of being sued. On June 15, 2001, movants filed their notice of removal, bringing the action before this court.
Pursuant to Rule 81(c) of the Federal Rules of Civil Procedure, repleading is not required after a case is removed unless the court so orders. The court has not so ordered, and the pleadings are closed. See FED. R. Civ. P. 7(a). Burns v. Lawther, 53 F.3d 1237, 1241 n. 6 (11th Cir. 1995). The fact that the court has set a deadline for the filing of motions for leave to amend has no bearing on the status of the pleadings. Cf. Carlson v. Reed, 249 F.3d 876, 878 n. 1 (9th Cir. 2001) (interrogatories are not pleadings under Rule 7(a)).
Lockheed objects to the untimeliness of plaintiff's response to the motion. The court recognizes that the response was untimely, but will, nevertheless, consider it. Lockheed has filed its reply and will not be harmed by the court's consideration of the response.
II. Plaintiff's Claims
For the purpose of the motion, the court accepts as true all factual allegations in plaintiff's original petition. Plaintiff alleges:
Plaintiff began his career in the aviation industry in 1963 when he was employed as a scientist by Lockheed's predecessor, General Dynamics. Lockheed acquired General Dynamics in March of 1993 and thereafter plaintiff worked for Lockheed. In 1986, plaintiff entered into "invention agreements," comprised of an invention agreement, an agreement relating to atomic energy work, and an agreement regarding property rights in inventions under contracts with the National Aeronautics and Space Administration. The invention agreement controls the property rights of the parties regarding plaintiff's "inventions and improvements made, developed, perfected, devised, or conceived by [plaintiff] . . . relating to the business, developments, products, or activities of [Lockheed] or its subsidiaries. . . ." The agreement requires that all patents issued to plaintiff be assigned to Lockheed. The agreement requires Lockheed to pay certain cash awards to plaintiff in addition to his salary. Lockheed agreed to pay plaintiff $300 for each patent application submitted by plaintiff; to pay plaintiff $150 for each patent obtained; and
to pay [plaintiff] for each of [plaintiff's] inventions additional compensation consisting of a percentage of any income derived by [Lockheed] from any sale of rights in such invention or part thereof, or from any royalties which [Lockheed] may collect from licenses to others, for the use of such inventions, except the sale or license of any invention, or part thereof, for use outside the United States of America, on a sliding scale, as follows:
Of the first $1,000 or part thereof . . . 30%
Of the next $1,000 or part thereof . . . 25%
Of any further sums in excess of $2,000 . . . 20%
The payment obligations are not contingent on plaintiff's continued employment.
Plaintiff obtained a security clearance from the United States Department of Defense so that he could fully discharge his job duties. After obtaining the security clearance, Lockheed gave plaintiff access to sensitive and classified government documents and he began developing technologies with the goal of securing patents. Plaintiff was the named inventor for more than twenty-six patents. Since the inception of the invention agreement, Lockheed has made some, but very few, payments to plaintiff. Lockheed has incorporated plaintiff's technologies into its products and sold those products for billions of dollars.
In 1996, Lockheed learned that a patent developed by plaintiff was being infringed by competitors of Lockheed. Lockheed hired an attorney to pursue the matter and calculated its damages if litigation were pursued to be as high as $100,000,000. Lockheed briefed plaintiff about the potential litigation, but did not go forward with the proposed infringement suit. Plaintiff "believes that Lockheed settled or entered into a license with the infringers," but plaintiff "has not been paid any money if that is the case." Original Pet. at 6.
In early summer 1998, Joe W. Stout, head of Lockheed's public relations department, contacted plaintiff to advise him that he would be giving an interview to the editor of
Janes Defence Weekly ("Janes"), a military armament and weapon news reporting company located in England. Lockheed was anxious for plaintiff to give the interview and he did so. Plaintiff gave a second interview to Janes in April 1999. In allowing plaintiff to participate in the interviews, Lockheed failed to follow procedures that had been established in Department of Defense security guidelines. In December 1999, after receiving a draft of a Janes article concerning plaintiff's interview, the Department of Defense informed plaintiff that it was restricting his special access to classified and other government information. Lockheed refused to support plaintiff in his attempts to regain his special access clearance. After being told that he would be laid off as of May 1, 2000, plaintiff agreed to take early retirement.
Plaintiff asserts as causes of action breach of contract (Count 1), unjust enrichment (Count 2), accounting (Count 3), permanent injunction (Count 4), negligence (Count 5), and exemplary damages (Count 6).
III. Standard of Review
Rule 12(c) provides, in pertinent part, that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." The motion is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts. Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990). The court may consider as part of the pleadings any documents referred to in the plaintiff's complaint that are central to the plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).
The standard for reviewing a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994); Allstate Ins. Co. v. Mauldin, 869 F. Supp. 478, 479 (W.D. Tex. 1994). To withstand a motion for judgment on the pleadings
the complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial. [A] statement of facts that merely creates a suspicion that the pleader might have a right of action is insufficient. Dismissal is proper is the complaint lacks an allegation regarding a required element necessary to obtain relief. The court is not required to conjure up unpled allegations or construe elaborately arcane scripts to save a complaint. Further, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion [for judgment on the pleadings].Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (internal citations quotations omitted).
IV. Other Pertinent Authority
As stated at the outset, the court is satisfied that movant's motion should be granted, at least in part. First, plaintiff has apparently abandoned his requests for an accounting and a permanent injunction. Second, plaintiff alleges that he is entitled to compensation if Lockheed sold products that incorporated any of his inventions. The court is not aware of any authority that would support such a proposition. Plaintiff additionally alleges in his original petition, on information and belief, that Lockheed sold or licensed plaintiff's technologies to others without making the required payments to him. He admits in his response to the motion for judgment, however, that he has no facts to support this breach of contract claim. If plaintiff is going to assert a breach of contract claim, he must plead all of the elements of such claim. Third, plaintiff has not pleaded facts to support his unjust enrichment claim.The court is satisfied that plaintiff has stated a negligence cause of action, although his petition is not very artfully pleaded. It would seem that if Lockheed caused or facilitated the loss of plaintiff's special access clearance and then forced him to retire for that reason, plaintiff may have a claim for negligence. Although plaintiff was an at-will employee and Lockheed could have fired him for any reason, it did so as a result of the loss of plaintiff's security clearance. Plaintiff alleges that he has not been able to gain other employment as a scientist as a result of Lockheed's actions. Thus, he has been damaged by Lockheed's conduct.
The foregoing notwithstanding, the court has found authority to support plaintiff's proposition that he must be allowed to amend his complaint before dispositive action is taken. Hines v. Wainwright, 539 F.2d 433, 434 (5th Cir. 1976). Therefore, despite plaintiff's lack of diligence and failure to cite pertinent authority, the court finds that it must give plaintiff an opportunity to replead. In repleading, plaintiff must bear in mind his obligations under Rule 11 of the Federal Rules of Civil Procedure.
V. ORDER
For the reasons discussed herein,
The court ORDERS that defendant's motion for judgment on the pleadings be, and is hereby, denied without prejudice.
The court further ORDERS that, by 4:30 p.m. on October 19, 2001, plaintiff file an amended complaint stating specifically his claims in this action.