Pods Enterprises, Llc v. Almatis, Inc.

BRIEF in Support re Motion to Dismiss for Failure to State a Claim

W.D. Pa.August 22, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PODS ENTERPRISES, LLC, Plaintiff, v. Civil Action No. 2:16-cv-00993-RCM ALMATIS, INC., Electronically Filed Defendant. BRIEF IN SUPPORT OF PARTIAL MOTION TO DISMISS Roy W. Arnold (PA I.D. 70544) Email: rarnold@reedsmith.com Jeffrey G. Wilhelm (PA I.D. 201935) Email: jwilhelm@reedsmith.com REED SMITH LLP 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 Telephone: 412-288-3131 Facsimile: 412-288-3063 Counsel for Defendant Almatis, Inc. Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 1 of 18 i TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. PLAINTIFF’S ALLEGATIONS ........................................................................................ 2 III. THIS COURT SHOULD DISMISS COUNTS IV-VII AS WELL AS THE CLAIMS FOR ATTORNEYS’ FEES UNDER FED. R. CIV. P. 12(b)(6). ....................................... 3 A. Legal Standard under Fed. R. Civ. P. 8(a) and 12(b)(6). .................................................... 3 B. Count IV Fails Because No Cause of Action Exists Under Pennsylvania Law For Tortious Interference Directed at Plaintiff’s Performance. ................................................. 4 C. Count V Fails Because Almatis Owed No Duty to Plaintiff. ............................................. 6 D. Plaintiff Fails to Plead Fraud With Particularity. ............................................................... 8 E. Plaintiff Fails to Plead a Negligence Per Se Claim........................................................... 10 F. Plaintiff Is Not Entitled To Attorneys’ Fees. .................................................................... 11 IV. CONCLUSION ................................................................................................................. 12 Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 2 of 18 ii TABLE OF AUTHORITIES Page(s) Cases Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175 (Pa. 1978) ..........................................................................................................4 Aikens v. Baltimore & O. R. Co., 501 A.2d 277 (Pa. Super. Ct. 1985) ...........................................................................................6 Allen v. The Washington Hosp., 34 F. Supp.2d 958 (W.D. Pa. 1999) .......................................................................................5, 6 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................................3 Becker v. Borough of Schuylkill Haven, 189 A.2d 764 (Pa. Super. 1963) ...............................................................................................11 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................................................3 Bilt-Rite Contrs., Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005) ........................................................................................................6, 7 Bortz v. Noon, 729 A.2d 555 (Pa. 1999) ............................................................................................................6 Burtch v. Milberg Factors, Inc., 662 F.3d 212 (3d Cir. 2011).......................................................................................................3 Club Com, Inc. v. Captive Media, Inc., No. 02:07-cv-1462, 2009 WL 249446 (W.D. Pa. Jan. 31, 2009) ..............................................5 Excavation Tech., Inc. v. Columbia Gas Co. of Pennsylvania, 936 A.2d 111 (Pa. Super. Ct. 2007) ...........................................................................................7 Fallowfield Dev. Corp. v. Strunk, No.: 89-8644, 1990 WL 52745 (W.D. Pa. Apr. 23, 1990) ......................................................10 Gemini Physical Therapy and Rehabilitation, Inc. v. State Farm Mutual Automobile Ins. Co., 40 F.3d 63 (3d Cir. 1994) ......................................................................................................4, 5 In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410 (3d Cir. 1997).....................................................................................................9 Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 3 of 18 iii Langenberg v. Warren General Hosp., No. 1:12-CV-175-NBF, 2013 WL 6147576 (W.D. Pa. Nov. 22, 2013) ..................................11 Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 676 F.3d 318 (3d Cir. 2012).................................................................................................3, 11 McCracken v. Daimler Chrysler Motors Company LLC, No. 07-2202, 2008 WL 920344 (E.D. Pa. Apr. 3, 2008) .......................................................8, 9 Peoples Mortgage Co., Inc. v. Federal Nat’l Mortgage Ass’n., 856 F. Supp. 910 (E.D. Pa. 1994) ..............................................................................................5 Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008).......................................................................................................4 Price v. Sorrell, 784 P.2d 614 (Wyo. 1989) .........................................................................................................5 Prudential Ins. Co. of Am. v. Hewitt-Jackson, et al., No. 2:13-cv-788, 2014 WL 640260 (W.D. Pa. Feb. 19, 2014)................................................11 In re Rockefeller Center Properties, Inc. Securities Litigation, 311 F.3d 198 (3d Cir. 2002)...................................................................................................8, 9 Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476 (M.D. Pa. 2013) ......................................................................................10 Safa v. City of Philadelphia, No. 13-5007, 2014 WL 2011487 (E.D. Pa. May 16, 2014) .......................................................5 Sayler v. Skutches, 40 A.3d 135, 140 (Pa. Super. Ct. 2012) ...................................................................................11 Seville Indust. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786 (3d Cir. 1984).......................................................................................................8 Shapiro v. UJB Financial Corp., 964 F.2d 272 (3d Cir. 1992).......................................................................................................8 Fallowfield Dev. Corp. v. Strunk, No.: 89-8644, 1990 WL 52745 (W.D. Pa. Apr. 23, 1990) ......................................................10 Fallowfield Dev. Corp. v. Strunk, Civil No. 89-8644, 1991 WL 17793 (E.D. Pa. Feb.11, 1991) ................................................10 Tredennick v. Bone, 647 F. Supp. 2d 495 (W.D. Pa. 2007) ....................................................................................8, 9 Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 4 of 18 iv Wagner v. Anzon, 684 A.2d 570 (Pa. Super. Ct. 1996) .........................................................................................10 Windsor Secur., Inc. v. Hartford Life Ins. Co., 986 F.2d 655 (3d Cir. 1993).......................................................................................................5 Statutes Pennsylvania Clean Streams Law, 35 P.S. § 691.1 .......................................................................10 Pennsylvania Solid Waste Management Act, 35 P.S. § 6018.101 .................................................10 Rules FED. R. CIV. P. 8(a) ................................................................................................................2, 3, 10 FED. R. CIV. P. 9(b) ..................................................................................................................2, 8, 9 Fed. R. Civ. P. 12(b)(6)....................................................................................................................3 Other Authorities Restatement (Second) of Torts Section 766.................................................................................4, 5 Restatement (Second) of Torts Section 766A ..............................................................................5, 6 Restatement (Second) of Torts Section 766B(b) .............................................................................5 Restatement (Second) of Torts Section 552..........................................................................1,6, 7, 8 Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 5 of 18 BRIEF IN SUPPORT OF PARTIAL MOTION TO DISMISS Defendant, Almatis, Inc. (“Almatis”), by and through its counsel, Reed Smith LLP, files this Brief in Support of its Partial Motion to Dismiss, seeking to dismiss Counts IV, V, VI, and VII of the Complaint as well as Plaintiff’s request for attorneys’ fees set forth in Counts I, II, III, and IV for failing to state a claim as a matter of law. I. INTRODUCTION Almatis and Plaintiff are both tenants occupying spaces adjacent to each other in the same industrial park. No contractual relationship exists between Almatis and Plaintiff, and as a mere neighboring tenant, Almatis possesses no special relationship with Plaintiff. Rather, both Almatis and Plaintiff utilize their independent spaces within the industrial park to support their lawful, legitimate and permitted business operations. The dispute between the parties in this action centers on an alleged dust issue which Plaintiff contends it first noticed on or about September 7, 2015. In addition to private nuisance and trespass claims which Almatis will defend on the facts, Plaintiff levels a myriad of unsustainable tort claims, including tortious interference with economic and business relationships (Count IV), negligent misrepresentation (Count V), intentional misrepresentation (Count VI), and negligence per se (Count VII). None of these claims, however, has merit. Plaintiff’s claim for tortious interference fails as a matter of law because Pennsylvania does not recognize a cause of action for tortious interference where the alleged intentional conduct of Almatis is directed solely at Plaintiff’s own performance under its third-party contracts. Plaintiff’s negligent misrepresentation claim similarly fails as a matter of law because Almatis, as a mere neighboring tenant of the Plaintiff in an industrial park, owes no duty to Plaintiff under Section 552 of the Restatement (Second) of Torts. Plaintiff’s intentional misrepresentation claim does not comply with the particularity requirements of Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 6 of 18 2 FED. R. CIV. P. 9(b) to the extent there are no allegations regarding the who, what, when, where, and how of Almatis’ alleged fraud. Finally, Plaintiff did not comply with the notice pleading requirements of FED. R. CIV. P. 8(a) in pleading negligence per se because no specific local, state, or federal ordinance or statute whose provisions the conduct of Almatis purportedly violated is identified in the Complaint. Additionally, under Counts I, II, III, and IV, Plaintiff’s request for reimbursement of attorneys’ fees is impermissible, and in fact, Plaintiff has no claim for attorneys’ fees under any of its legal theories advanced in the Complaint. For these reasons, Almatis requests this Court to cull the unsustainable claims by dismissing Counts IV, V, VI, and VII of the Complaint as well as any claim for attorneys’ fees by the Plaintiff. II. PLAINTIFF’S ALLEGATIONS Plaintiff alleges that it operates a storage facility in the multi-tenant Leetsdale Industrial Park. (Compl. at ¶3). Within the facility, Plaintiff maintains portable storage containers that contain the personal items of the third-party customers with whom Plaintiff contracts. (Compl. at ¶¶3 & 4). Plaintiff’s facility is directly adjacent to Almatis’ Leetsdale facility, and Plaintiff and Almatis are both tenants of a common landlord. (Compl. at ¶6). On or about September 7, 2015, Plaintiff noticed dust accumulating in its storage facility. (Compl. at ¶5). Approximately two weeks later after noticing the dust, Plaintiff received complaints from its customers regarding dust. (Compl. at ¶7). Plaintiff contends that the customer complaints prompted Plaintiff to notify Almatis about the dust, and Almatis immediately responded by investigating. (Compl. at ¶8). Plaintiff contends that the dust was generated by an issue with a bag house at Almatis’ facility. (Compl. at ¶10). Plaintiff’s contention is based on a communication solely between two agents of the common landlord. (Compl. at ¶¶6-10). Although Plaintiff makes no specific reference to the continuation of a dust issue after September 7, 2015, Plaintiff claims that at some Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 7 of 18 3 point in either March or April of 2016 the dust issue “worsened.” (Compl. at ¶13). The alleged dust issue persisted despite unnamed Almatis personnel making multiple unidentified “representations” to unknown recipients that the dust issue was resolved. (Compl. at ¶¶13-14). Plaintiff pleads this same factual predicate in support of its claims for tortious interference (Count IV), negligent misrepresentation (Count V), intentional misrepresentation (Count VII), and negligence per se (Count VII). III. THIS COURT SHOULD DISMISS COUNTS IV-VII AS WELL AS THE CLAIMS FOR ATTORNEYS’ FEES UNDER FED. R. CIV. P. 12(b)(6). A. Legal Standard under Fed. R. Civ. P. 8(a) and 12(b)(6). A motion to dismiss tests the legal sufficiency of a complaint. In order to survive a motion to dismiss, Plaintiff must allege sufficient facts to establish a plausible basis for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Under FED. R. CIV. P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011) (citing Twombly, 550 U.S. at 555), and must “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests,” Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 676 F.3d 318, 326 (3d Cir. 2012) (citation omitted). This pleading standard “demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Indeed, one must show “more than a sheer possibility that a defendant has acted unlawfully.” Burtch, 662 F.3d at 221 (quoting Iqbal, 556 U.S. at 678). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Accordingly, dismissal for failure to state a claim is appropriate where the pleading fails to set forth factual allegations that, if taken as true, Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 8 of 18 4 suggest the existence of each required element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). B. Count IV Fails Because No Cause of Action Exists Under Pennsylvania Law For Tortious Interference Directed at Plaintiff’s Performance. Count IV (tortious interference) must fail because Pennsylvania does not recognize a tortious interference claim based on intentional conduct directed at hindering or frustrating plaintiff’s own performance under a contract. See Gemini Physical Therapy and Rehabilitation, Inc. v. State Farm Mutual Automobile Ins. Co., 40 F.3d 63, 66 (3d Cir. 1994). In Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175, 1181-83 (Pa. 1978), Pennsylvania adopted Section 766 of the Restatement (Second) of Torts. Section 766 permits a plaintiff to sue for tortious interference if a defendant tortiously induces a third-party not to perform contractual obligations owed to plaintiff. Section 766’s cause of action requires plaintiff to plead and prove that the defendant: (1) intentionally and improperly, (2) interferes with the performance of contract between a plaintiff and a third-party, (3) inducing the third party to not perform, and (4) the non performance results in pecuniary loss to the plaintiff. Id. The gravamen of a Section 766 claim is intentional conduct directed at inducing the third-party not to perform. Plaintiff, however, fails to plead any conduct of Almatis, whether intentional or unintentional, directed at Plaintiff’s customers for the purpose of inducing such customers’ non performance of contractual obligations owed to Plaintiff. Rather, Plaintiff alleges that it operates a storage facility adjacent to Almatis’ operations, and at that facility, Plaintiff performs its contractual obligations of storing portable storage containers. (Compl. at ¶3). Plaintiff further alleges that dust generated by Almatis’ operations infiltrated Plaintiff’s facility. (Compl. at ¶¶3- 5 & 9). Plaintiff contends that the infiltrating dust has hindered Plaintiff’s own performance Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 9 of 18 5 under its customer contracts, increasing Plaintiff’s costs.1 (Compl. at ¶¶7, 14, & 35-36). The alleged intentional conduct of Almatis is directed solely at the facility where Plaintiff performs its obligations to its customers. (Compl. at ¶¶3-5). Plaintiff’s tortious interference claim, therefore, does not arise under Section 766 adopted by Pennsylvania. In Gemini Physical Therapy, 40 F.3d at 66, the Third Circuit addressed a tortious interference claim based on a defendant’s intentional conduct which was directed at plaintiff’s performance under a third-party contract. Relying on its recent discussion of Sections 766 and 766A of the Restatement (Second) of Torts in Windsor Secur., Inc. v. Hartford Life Ins. Co., 986 F.2d 655 (3d Cir. 1993), the Third Circuit distinguished a Section 766 claim based on intentional conduct directed at inducing a third-party not to perform from a Section 766A of the Restatement (Second) of Torts claim based on intentional conduct directed to hinder or frustrate plaintiff’s own performance. Addressing Section 766A, the Court stated that “Section 766A is much more difficult to apply and conducive to disputes.” Gemini, 49 F.3d at 66. Reasoning that the damages based on the increased costs associated with plaintiff’s own performance was far too speculative to sustain a cause of action, the Third Circuit concluded that the Pennsylvania Supreme Court would not adopt Section 766A. Id. (citing Price v. Sorrell, 784 P.2d 614 (Wyo. 1989)). The district courts have followed Gemini Physical Therapy. See, e.g., Safa v. City of Philadelphia, No. 13-5007, 2014 WL 2011487 (E.D. Pa. May 16, 2014) (dismissing a tortious 1 The only business relationships Plaintiff pleads are its existing contractual relationships with its customers (Compl. at ¶¶5, 7, & 35), and a defendant’s intentional interference directed at plaintiff’s performance under an existing contract falls under Section 766A. Allen v. The Washington Hosp., 34 F. Supp.2d 958, 964 (W.D. Pa. 1999). Section 766B(b) of the Restatement (Second) of Torts addresses tortious interference when directed at a plaintiff in the context of a prospective business relationship. Initially, Plaintiff has not identified any existing prospective business relationship under the Complaint. See ClubCom, Inc. v. Captive Media, Inc., No. 02:07-cv-1462, 2009 WL 249446, at *11 (W.D. Pa. Jan. 31, 2009) (stating that past business relations or dealings do not meet the “objectively reasonable probability” requirement necessary to show an actionable prospective business relationship). Even if the Plaintiff properly pled a prospective business relationship, courts have found that Pennsylvania would also decline to adopt Section 766B(b). Allen, 34 F. Supp.2d at 964; see also Peoples Mortgage Co., Inc. v. Federal Nat’l Mortgage Ass’n, 856 F. Supp. 910, 933 (E.D. Pa. 1994). Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 10 of 18 6 interference claim because Pennsylvania has not adopted Section 766A); Cf. Allen, 34 F. Supp.2d at 964-65 (endorsing Gemini Physical Therapy). Accordingly, because the alleged tortious interference pled in Count IV is directed solely at Plaintiff’s performance and that claim is not cognizable under Pennsylvania law, Count IV fails as a matter of law. C. Count V Fails Because Almatis Owed No Duty to Plaintiff. Count V (negligent misrepresentation) must fail because Almatis owed Plaintiff no duty under Section 552 of the Restatement (Second) of Torts. Initially, under Pennsylvania law, to sustain a negligent misrepresentation claim, a plaintiff must plead and prove: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; (4) which results in injury to a party acting in justifiable reliance on the misrepresentation. See Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999). However, under Pennsylvania’s economic loss doctrine, a tortfeasor who interferes with a party’s contractual obligations is not liable for any economic losses said party incurs from not being able to fulfill its contract. Aikens v. Baltimore & O. R. Co., 501 A.2d 277, 278 (Pa. Super. Ct. 1985). To be liable for negligent misrepresentation under Section 552, the speaker must owe a duty to the plaintiff. In Bilt-Rite Contrs., Inc. v. The Architectural Studio, 866 A.2d 270, 287 (Pa. 2005), Pennsylvania adopted Section 552, which creates a limited exception to the economic loss doctrine when the speaker has a pecuniary interest in the transaction. As a threshold matter, Section 552 requires the speaker to have a pecuniary interest in the underlying transaction for which the representation is being made. Restatement (Second) of Torts § 552 (1977) (“One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 11 of 18 7 transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”) (emphasis added). Excavation Tech., Inc. v. Columbia Gas Co. of Pennsylvania, 936 A.2d 111, 115-16 (Pa. Super. Ct. 2007), aff’d 985 A.2d 840 (Pa. 2009), illustrates the limiting effect of Section 552’s requirement of having a pecuniary interest in the transaction at hand has on the existence of a duty. In Excavation Tech, the plaintiff was hired to perform work for a waterline extension project. Id. at 112. Under Pennsylvania’s One Call Act, plaintiff alleged that it timely requested defendant, a public utility, to mark the relevant gas lines within the vicinity of the project. Id. Defendant improperly marked some of the lines and failed to mark others. As a result, plaintiff struck eleven (11) lines, causing it pecuniary loss. Id. Plaintiff sued on a variety of theories, including negligent misrepresentation. After the trial court granted defendant’s preliminary objections, plaintiff appealed to the Pennsylvania Superior Court. Addressing the negligent misrepresentation claim, the Superior Court examined the relationship between the contractor and the public utility. Id. at 116-17. The Court concluded that a utility did not supply information under the One Call Act for pecuniary gain and the One Call Act did not create a private right of action. The court declined to extend Bilt-Rite to this relationship and affirmed the preliminary objections on the basis that defendant did not undertake a duty to plaintiff. The allegations of the Complaint establish only that Almatis and Plaintiff were both tenants in an industrial park. As a tenant in an industrial park, Almatis is not in privity with Plaintiff nor does the law recognize that Almatis has a special relationship with Plaintiff. In fact, Almatis is privileged to use its leasehold interest reasonably in furtherance of its lawful business Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 12 of 18 8 pursuits. Plaintiff posits no allegation establishing that Almatis had any pecuniary interest in Plaintiff or in the situs of Plaintiff’s operations within the industrial park or elsewhere. Thus, there is no basis to conclude that Almatis, in speaking, undertook any duty to Plaintiff under Section 552, and no basis for Plaintiff to bring claims as it has against Almatis based on pecuniary loss for negligent misrepresentation. Accordingly, in the absence of Almatis having a pecuniary interest in the transaction, Almatis owes no duty to Plaintiff under Section 552, and Count V, thus, fails as a matter of law. D. Plaintiff Fails to Plead Fraud With Particularity. Count VI (intentional misrepresentation) must fail because Plaintiff has failed to comply with the pleading requirements of FED. R. CIV. P. 9(b). Under FED. R. CIV. P. 9(b), a plaintiff seeking to recover for fraud “must, with particularity, allege all the essential elements of actionable fraud.” Tredennick v. Bone, 647 F. Supp. 2d 495, 500 (W.D. Pa. 2007). Specifically, Plaintiff must plead “(1) a specific false representation or omission of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damage.” In re Rockefeller Center Properties, Inc. Securities Litigation, 311 F.3d 198, 216 (3d Cir. 2002) (quoting Shapiro v. UJB Financial Corp., 964 F.2d 272, 284 (3d Cir. 1992)). FED. R. CIV. P. 9(b) serves the purpose of placing “‘the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral or fraudulent behavior.’” McCracken v. Daimler Chrysler Motors Company LLC, No. 07-2202, 2008 WL 920344, at *5 (E.D. Pa. Apr. 3, 2008) (quoting Seville Indust. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984)). Mere inferences of fraud are insufficient to comply with the demands of FED. R. CIV. P. 9(b). Plaintiff must “inject[] precision and some measure of substantiation” into a fraud Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 13 of 18 9 allegation. In re Rockefeller Center Properties, 311 F.3d at 216 (citation omitted). “[B]oilerplate and conclusory allegations will not suffice. Plaintiffs must accompany their legal theory with factual allegations that make their theoretically viable claim plausible.” Id. (citation omitted). “Even where a plaintiff’s allegations of fraud are based on information and belief, supporting facts on which this belief is founded must be set forth in the complaint.” Tredennick v. Bone, 647 F. Supp. 2d 495, 501 (W.D. Pa. 2007), aff’d 323 Fed. Appx. 103 (3d Cir. 2008). Therefore, Plaintiff must support its allegations of fraud “with all of the essential factual background that would accompany ‘the first paragraph of any newspaper story’ - that is, the ‘who, what, when, where and how’ of the events at issue.” In re Rockefeller Center Properties, Inc., 311 F.3d at 217 (quoting In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1422 (3d Cir. 1997)); see also McCracken, 2008 WL 920344 at *5. Plaintiff, however, fails to set forth the who, what, when, where, and how of Almatis’ alleged fraud. Count VI contains only formulaic recitations of the basic elements of fraud. (Compl. at ¶¶45-49). To the extent that Count VI incorporates the factual allegations of paragraphs 1 through 14 of the Complaint, the only allegations regarding misrepresentation are found in Paragraph 13. Paragraph 13 states “Almatis has made repeated representations that the Dust problem was resolved.” (Compl. at ¶13). Plaintiff’s allegation fails to identify the speaker, the speaker’s audience, the date of the communication, and the content of the communication. Additionally, the baldly pled fact that the dust issue allegedly “worsened” does not establish that the unidentified representations of Almatis were in fact intentionally false. (Compl. at ¶ 14). Indeed, Plaintiff’s allegations only establish that any alleged dust issue persisted despite unnamed Almatis personnel making multiple unidentified “representations” to unknown Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 14 of 18 10 recipients that the dust issue was resolved. The allegations are not sufficient to meet the pleadings requirements of FED. R. CIV. P. 9(b). Accordingly, because Plaintiff fails to comply with FED. R. CIV. P. 9(b) in pleading the elements of fraud with the requisite particularity, Count V fails as a matter of law. E. Plaintiff Fails to Plead a Negligence Per Se Claim. Count VII (negligent per se) must fail because Plaintiff does not provide Almatis notice of what various “local, state, and federal ordinances and statutes” Almatis has allegedly violated. (Compl. at ¶ 51). “In order to state a claim based on negligence per se, a plaintiff must establish that: ‘(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally; (2) The statute or regulation must clearly apply to the conduct of the defendant; (3) The defendant must violate the statute or regulation; [and] (4) The violation must be the proximate cause of the plaintiff’s injuries.’” Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476, 488 (M.D. Pa. 2013) (quoting Wagner v. Anzon, 684 A.2d 570, 574 (Pa. Super. Ct. 1996)). Importantly, [n]ot every statutory provscription, however, will serve as the foundation for a claim of negligence per se.” Fallowfield Dev. Corp. v. Strunk, No.: 89- 8644, 1990 WL 52745, at *18-19 (W.D. Pa. Apr. 23, 1990). Rather, the Court must “examine the legislation and determine whether the policy of the statutory scheme will be furthered by allowing it to serve as the basis for a claim of negligence per se.” Id. And, it is appropriate to test a statutory scheme at issue in a negligence per se claim on a motion to dismiss. Fallowfield Dev.t Corp. v. Strunk, No. 89-8644, 1991 WL 17793, at *8-9 (E.D. Pa. Feb. 11, 1991), aff’d, 96 F.3d 1432 (3d Cir. 1996) (dismissing upon reconsideration at the summary judgment stage a negligence per se claim based upon Pennsylvania Solid Waste Management Act, 35 P.S. § 6018.101); Roth, 919 F. Supp. 2d at 488 (dismissing a negligence per se claim based on the Pennsylvania Clean Streams Law, 35 P.S. § 691.1); Wagner, 684 A.2d at 575 (affirming Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 15 of 18 11 dismissal of negligence per se claim based upon the Philadelphia Air Management Code). FED. R. CIV. P. 8(a) requires a short, plain statement of the facts upon which a claim is based. Count VII fails to put Almatis on notice of the precise regulatory scheme at issue. That failure means Plaintiff has not given Almatis fair notice of what the negligence per se claim is and “the grounds upon which it rests.” Liberty Lincoln-Mercury, Inc., 676 F.3d at 326. Because a claim based on negligence per se requires the identification of a specific local, state, or federal regulatory scheme which requires Almatis’ compliance and Count VII does not comply with this requirement, Count VII fails as a matter of law. F. Plaintiff Is Not Entitled To Attorneys’ Fees. Counts I through IV of the Complaint seek legal fees. Plaintiff’s claims for legal fees must fail as a matter of law. “Under the American Rule, applicable in Pennsylvania, a litigant cannot recover counsel fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established exception.” Langenberg v. Warren General Hosp., No. 1:12-CV-175-NBF, 2013 WL 6147576, at *12 (W.D. Pa. Nov. 22, 2013) (citing Sayler v. Skutches, 40 A.3d 135, 140 (Pa. Super. Ct. 2012)). Plaintiff and Almatis are not under contact, and therefore no contractual fee shifting mechanism exists. Moreover, there is no “basis, statutory or otherwise, for an award of attorneys’ fees for common law tort actions.” Prudential Ins. Co. of Am. v. Hewitt-Jackson, et al., No. 2:13-cv-788, 2014 WL 640260, at *4 (W.D. Pa. Feb. 19, 2014) (applying Pennsylvania law) (denying attorneys’ fees in a common law fraud and unjust enrichment action); see also Becker v. Borough of Schuylkill Haven, 189 A.2d 764 (Pa. Super. Ct. 1963) (holding the same and denying attorneys’ fees in a trespass action). Accordingly, Plaintiff’s claims for attorneys’ fees under any theory of the Complaint must fail. Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 16 of 18 12 IV. CONCLUSION For the foregoing reasons, Almatis respectfully requests that this Court dismiss Counts IV, V, VI, and VII of the Complaint as well as all claims for attorneys’ fees. Dated: August 22, 2016 REED SMITH LLP By: /s/ Jeffrey G. Wilhelm Roy W. Arnold (PA I.D. 70544) Email: rarnold@reedsmith.com Jeffrey G. Wilhelm (PA I.D. 201935) Email: jwilhelm@reedsmith.com 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 Telephone: 412-288-3131 Facsimile: 412-288-3063 Counsel for Defendant Almatis, Inc. Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 17 of 18 CERTIFICATE OF SERVICE I hereby certify that on August 22, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to counsel or parties of record electronically by CM/ECF. /s/ Jeffrey G. Wilhelm Jeffrey G. Wilhelm Counsel for Defendant Almatis, Inc. Case 2:16-cv-00993-RCM Document 5 Filed 08/22/16 Page 18 of 18