United States District Court, D. Delaware
DR. LAKSHMI ARUNACHALAM, Plaintiff,
GEORGE PAZUNIAK, et al., Defendants.
Lakshmi Arunachalam, Menlo Park, California. Pro Se
Pazuniak, Esquire, Pazuniak Law Office LLC, Wilmington,
Delaware. Counsel for Defendants George Pazuniak and Pazuniak
Law Office LLC.
T. O'Kelly, Esquire, and Ryan M. Ernst, Esquire,
O'Kelly Ernst & Joyce, LLC, Wilmington, Delaware.
Counsel for Defendant O'Kelly, Ernst & Bielli, LLC.
ANDREWS, U.S. DISTRICT JUDGE
Dr. Lakshmi Arunachalam, who appears pro se and has
paid the filing fee, filed this action on November 14, 2014,
in the United States District Court for the Northern District
of California. (D.I. 1). The matter was transferred to this
Court on March 25, 2015. (D.I. 99, 100). On February 24,
2016, the Court granted in part and denied in part
Defendants' motions to dismiss the First Amended
Complaint and on September 11, 2017, granted in part and
denied in part Defendants' motion dismiss the Second
Amended Complaint. (D.I. 125, 186). Plaintiff was given
limited leave to amend. (D.I. 186 at ¶ 3). The Fourth
Amended Complaint (D.I. 189) asserts jurisdiction pursuant to:
(1) 28 U.S.C. § 1331 by reason of a federal question;
(2) 28 U.S.C. § 1337(a) by reason of a federal statute
regulating commerce; (3) 28 U.S.C. § 1338 by reason of
patents, copyrights, and trademarks; and (4) 28 U.S.C. §
1332 by reason of diversity of citizenship. (D.I. 189 at
¶ 10). Defendants George Pazuniak, Pazuniak Law Office
LLC, and O'Kelly Ernst & Joyce, LLC, formerly OKelly
Ernst & Bielli, LLC,  jointly move for dismissal pursuant to
Fed.R.Civ.P. 12(b)(6). (D.I. 190). Plaintiff opposes.
Briefing on the matter has been completed. (D.I. 191, 192,
195, 196, 197, 198, 199).
a California resident, is an inventor and assignee of a
portfolio of dozens of patents. (D.I. 189 at¶¶ 3,
11). She founded three start-up companies in Silicon Valley:
Pi-Net International Inc., WebXchange, Inc., and e-point,
Inc. (Id. at¶ 11). George
Pazuniak is an attorney licensed to practice law in
Delaware with an office in Wilmington, Delaware, and George
Pazuniak Law Office, LLC, "was a law firm duly organized
and existing under the laws of the State of Delaware with its
principal place of business in Wilmington,
DE." (Id. at ¶¶ 4-5).
O'Kelly Ernst & Joyce, LLC is "a law firm duly
organized and existing under the laws of the State of
Delaware with its principal place of business in . . .
Wilmington, DE and in Philadelphia, PA." (Id.
at ¶ 6). Plaintiff hired Pazuniak "for her patent
cases . . . against many infringers in 2011, 2012 and 2013,
based upon his representation that he is a 'Patent
Litigator' and would provide 'Competent Counsel'
to competently conduct [her] patent cases."
(Id. at ¶ 12). Plaintiff alleges that Pazuniak
"(as Agent) joined Counsel's Principal during the
course of patent litigation [Contrary to the
'Agreement'] by not informing Client; de facto, and
Counsel and Counsel's Principal became Client's
attorneys in her patent cases, as evidenced by Counsel's
signature on each of the briefs filed that Counsel was from
Counsel's Principal." (Id. at ¶ 12).
With the assistance of Defendants, Plaintiff sued a number of
corporations for patent infringement. The claims in this
action all arise out of Defendants' representation in
those patent infringement proceedings.
Court's ruling on Defendants' motion to dismiss the
Second Amended Complaint, the allegations of intentional
infliction of emotional distress survived the motion, and
Plaintiff was given one final opportunity to file a motion to
amend the legal malpractice and tortious interference with
contract claims. (D.I. 186). Plaintiff filed a motion to
amend on October 13, 2017, and attached the Fourth Amended
Complaint and a red-line version of the Fourth Amended
Complaint to it. (D.I. 189 & 189-1).
Fourth Amended Complaint contains three counts. Count One,
against Counsel, Counsel's Law Firm, and Counsel's
Principal for tortious interference with a contract (D.I. 189
at ¶¶ 20-44, 140-44); Count Two, against Pazuniak
and Defendants for intentional infliction of emotional
distress (the claim that survived dismissal in the Second
Amended Complaint) (id. at ¶¶ 45-48,
145-47); and Count Three, against Counsel and Defendants for
legal malpractice/negligence/failure to provide competent
representation/failure to follow client
instructions/professional misconduct (id. at
¶¶ 49- 56, 148-51). In addition, the Fourth Amended
Complaint contains two sections that are not specifically
directed to the three counts and that are found after Count
Three. The two sections are the More Facts Chronological
Synopsis (D.I. 189 at ¶¶ 57-82) and the Statement
(and Significance) of this Case (id. at ¶¶
83-139). Much of the information in these two sections is
devoted to the parties' litigation in Delaware Superior
move for dismissal pursuant to Rule 12(b)(6) for failure to
state claims upon which relief may be granted. (D.I. 190,
D.I. 191). Defendants refer to Plaintiff's failed
attempts to state a claim and contend that: (1) Plaintiff
filed a new complaint, but ignored the Court's prior
rulings and instructions; (2) Plaintiff failed to plead any
cause of action; (3) Plaintiff removed from the Fourth
Amended Complaint all allegations upon which the Court relied
in allowing the intentional infliction of emotional distress
claim to proceed; and (4) no claims are stated against the
O'Kelly Law Firm.
responds, "The Complaint itself states the causes of
action and remedy warranting in no uncertain terms, namely:
a) Infliction of emotional distress, b) Legal malpractice, c)
Intentional interference with contract." (D.I. 195 at
seek dismissal pursuant 12(b)(6) of the Federal Rules of
Civil Procedure and have submitted matters of public record
as well as documents referred to in the Fourth Amended
Complaint in support of their motion.
In deciding motions to dismiss pursuant to Rule 12(b)(6),
courts generally consider only the allegations in the
complaint, exhibits attached to the complaint, matters of
public record, and documents that form the basis of a claim.
A document forms the basis of a claim if the document is
'integral to or explicitly relied upon in the
complaint.' The purpose of this rule is to avoid the
situation where a plaintiff with a legally deficient claim
that is based on a particular document can avoid dismissal of
that claim by failing to attach the relied upon document.
Further, considering such a document is not unfair to a
plaintiff because, by relying on the document, the plaintiff
is on notice that the document will be considered.
Lum v. Bank of Am., 361 F.3d 217, 221-22 n.3 (3d
Cir. 2004) (internal citations omitted).
documents submitted to the Court that are matters of public
record and that are referred to by Plaintiff in the Fourth
Amended Complaint may properly be considered in ruling on
Defendants' motion to dismiss.
reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the
court must accept all factual allegations in a complaint as
true and take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Because Plaintiff proceeds pro se, her pleading is
liberally construed and her Fourth Amended Complaint,
"however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers." Erickson, 551 U.S. at 94.
requires a complainant to provide "a short and plain
statement of the claim showing that the pleader is entitled
to relief. . . ." Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6)
allows the accused party to bring a motion to dismiss the
claim for failing to meet this standard. A Rule 12(b)(6)
motion may be granted only if, accepting the well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the complainant, a court concludes
that those allegations "could not raise a claim of
entitlement to relief." Bell Ml. Corp. v.
Twombly, 550 U.S. 544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Metn'l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroft v. Iqbal,556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context-specific