Opinion
Case No. 6:03-cv-796-Orl-28KRS.
March 21, 2005
ORDER
This cause is before the Court on Lockheed Martin Corporation's ("Lockheed Martin") motion to dismiss The Boeing Company's ("Boeing") seven-count Counterclaim. (Doc. 367). Boeing alleges that Lockheed Martin made false statements to the United States Air Force ("Air Force") which resulted in the Air Force's decision to reallocate satellite launch contracts from Boeing to Lockheed Martin. According to Boeing, Lockheed Martin's false statements to the Air Force tortiously interfered with Boeing's contracts and business relations (Counts I-IV); violated the Florida Deceptive and Unfair Trade Practices Act (Count V) and the false advertising provisions of the Lanham Act (Count VI); and constituted unfair competition (Count VII).
Lockheed Martin argues that each of Boeing's claims fail because they: (1) are barred by the Noerr-Pennington doctrine; (2) are not pled with the degree of particularity required under Federal Rule of Civil Procedure 9(b); (3) constitute an impermissible collateral attack on the Air Force's reallocation decision; and (4) have not been, and cannot be, supported by allegations that Lockheed Martin's alleged statements were the cause of the Air Force's reallocation decision. Additionally, with regard to Boeing's tortious interference claims, Lockheed Martin contends that Boeing has failed to sufficiently allege that the Air Force breached its contracts with Boeing. Finally, as to Boeing's Lanham Act claim, Lockheed Martin maintains that its alleged statements were not commercial speech and, therefore, are not subject to scrutiny under the Lanham Act.
Based on the foregoing reasons, Lockheed Martin's motion to dismiss must be denied.
I. STANDARD OF REVIEW
To warrant dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). In determining whether to grant a motion to dismiss, a court must accept all the factual allegations in the complaint as true and consider all reasonable inferences derived therefrom in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994).
II. ANALYSIS
A. Noerr-PenningtonAlthough it originally arose out of the antitrust context, the Noerr-Pennington doctrine generally immunizes individuals from liability for statements which they make in the context of petitioning the government for redress. See Prof'l Real Estate Investors v. Columbia Pictures Indus., 508 U.S. 49, 51 (1993). One of the exceptions to Noerr-Pennington immunity recognized in this circuit, however, is for misrepresentations made outside the "political arena." See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 955 (11th Cir. 1986) (quoting and relying upon Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972)). This exception extends to the making of deliberately false statements to administrative agencies. St. Joseph's, 795 F.2d at 955 (no immunity for false statements made to Georgia State Health Planning Agency); see also Whelan v. Abell, 48 F.3d 1247, 1254-55 (D.C. Cir. 1995).
Although Lockheed Martin's alleged statements appear to have been made while petitioning the Air Force for redress, Boeing maintains that they were materially and intentionally false. Thus, taking Boeing's allegations as true, Lockheed Martin cannot claim immunity from suit under the Noerr-Pennington doctrine. While the Supreme Court's recent decision in City of Columbia v. Omni Outdoor Adver., 499 U.S. 365 (1991), arguably casts doubt on the continued viability of St. Joseph's, the exception for misrepresentations remains good law in this circuit until the Eleventh Circuit, sitting en banc, or the Supreme Court determine otherwise. B. Federal Rule of Civil Procedure 9(b)
Rule 9(b) requires that claims of fraud allege "the circumstances constituting fraud . . . with particularity." Fed.R.Civ.P. 9(b). This requirement is limited, however, to claims of common law and statutory fraud. See, e.g., Cal. Int'l Chem. Co. v. Neptune Pool Serv., Inc., 770 F.Supp. 1530, 1537 (M.D. 1991) (applying Rule 8(a) general pleading standard, rather than Rule 9(b) heightened pleading standard, to tortious interference claim). Thus, because Boeing's Counterclaim does not contain statutory or common law fraud claims, Lockheed Martin's Rule 9(b) argument is of no avail.
C. Collateral Attack
The Contract Disputes Act, 41 U.S.C. § 601 et. seq., ("CDA") provides that a government "contracting officer's decision on [a] claim shall be final and conclusive and not subject to review by any forum, tribunal, or government agency unless an appeal or suit is timely commenced as authorized by this chapter." Id. at § 605(b). Thus, were Boeing challenging the Air Force's reallocation decision, its claims might properly be characterized as an impermissible collateral attack. That, however, is not the case. Boeing's Counterclaim contains claims — not against the Air Force — but against Lockheed Martin. See 41 U.S.C. § 605(a) (referring to "claims by a contractor against the government"). As such, the CDA does not implicate the suitability of jurisdiction over Boeing's Counterclaim.
D. Causation
It may yet prove to be no small irony that, while claiming that it was Lockheed Martin's statements, rather than its own misconduct, that resulted in the Air Force's reallocation, Boeing accuses Lockheed Martin of "revisionism." See Doc. 506 at 2. For now, however, the only task at hand is determining whether, taking all of its factual allegations as true, Boeing has succeeded in sufficiently alleging that it suffered harm as a result of Lockheed's Martin's false statements. Boeing has managed to satisfy this minimal burden. See Doc 100 ¶¶ 61-62, 67-68, 75-76, 84-85, 89, 93-95, 96, 100.
E. Sufficiency of Tortious Interference Claims
Boeing's Counterclaim also sufficiently alleges that the Air Force breached its contracts with Boeing. While the Counterclaim does not specifically state that the Air Force "breached" the contracts, it is reasonable to infer that the Air Force's reallocation of the contracts to Lockheed Martin constituted a breach of those contracts with Boeing.
F. Lanham Act
Boeing brings its Lanham Act claim under 15 U.S.C. § 1125(a)(1), which provides:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which —
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
Lockheed Martin contends, in essence, that its alleged statements were not "commercial speech" and, therefore, are not actionable under the Lanham Act.
The Eleventh Circuit has said that "[c]ommercial speech encompasses not merely direct invitations to trade, but also communications designed to advance business interests, exclusive of beliefs and ideas." Kleiner v. First Nat'l Bank, 751 F.2d 1193, 1204 (11th Cir. 1986). Assuming the truth of Boeing's allegation that Lockheed Martin made false statements to the Air Force in order to obtain contracts which Boeing would have otherwise retained, the statements appear to fall within this broad definition of "commercial speech." Therefore, Lockheed Martin's argument for dismissal of Boeing's Lanham Act claim fails.
III. CONCLUSION
In accordance with the foregoing, Lockheed Martin's motion to dismiss Boeing's Counterclaim is DENIED. DONE and ORDERED.
The Court feels compelled to note, given the doubtful quality of Boeing's factual allegations, that some of the arguments rejected herein may well prove successful at a later stage of this litigation.