United States District Court, D. Delaware
C. Ralston, Jacob R. Kirkham, POTTER ANDERSON & COROON
LLP, Wilmington, DE Attorneys for Plaintiff
A. Dorey, Adam V. Orlacchio, BLANK ROME LLP, Wilmington, DE -
attorneys for Defendant December 10, 2018 Wilmington,
NOREIKA, U.S. DISTRICT JUDGE.
before the Court is the motion of Defendant PuraCap
Laboratories, LLC ("PuraCap") to dismiss Count III
of the Complaint filed by Plaintiff Joseph William Luster
("Plaintiff) arguing Plaintiff has failed to state a
claim upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6). (D.I. 4). For the reasons set forth
below, the Court will GRANT Defendant's motion.
The Consulting Agreement
dispute in this case relates to a Consulting Agreement dated
March 31, 2016 ("the Agreement") entered into by
Plaintiff and PuraCap. (D.I. 1, Ex. A ¶¶ 1, 7).
Plaintiff alleges that, "[u]nder the terms of the
Agreement, [he] was to provide certain consulting
services" and "was to receive a fee for such
services, as well as additional performance
compensation." (Id. ¶ 7). Specifically,
Plaintiff alleges that Schedule 2 of the Agreement requires
PuraCap "to make certain payments under the 'Journey
Medical Contract' and 'Additional Government
Contracts.'" (Id. ¶¶ 8-10).
Plaintiff further alleges that the Agreement entitles him to
inspect "the relevant books and records of [PuraCap] as
may be reasonably necessary to determine and/or verify the
amount of the applicable Performance Compensation Payment
due." (Id. ¶ 14).
The Current Dispute
alleges that, on November 30, 2017, he "requested via
letter that he, and his external accounting firm, be provided
access to the relevant books and records in order to
determine the amount of the Performance Compensation Payment
due to him" and, further, that he followed up on that
request in December 2017. (D.I. 1 ¶ 15). He alleges that
despite his requests, "[t]o date, although PuraCap has
provided limited books and records in the form of summary
spreadsheets to Luster, it has not provided all books and
records 'reasonably necessary to determine and/or verify
the amount of the applicable Performance Compensation Payment
due ....'" (Id. ¶ 16). Plaintiff does
not specify the additional materials that he seeks. Plaintiff
also alleges that PuraCap has failed to pay him the
Performance Compensation owed and has improperly restricted
his access to PuraCap's facilities due to a dispute
between PuraCap and two of Plaintiff s companies.
(Id. ¶¶ 13, 17).
March 13, 2018, Plaintiff sued Defendant in the Delaware
Court of Chancery, alleging the following three claims: (1)
specific performance compelling PuraCap to provide Plaintiff
with books and records related to the calculation of his
Performance Compensation; (2) breach of contract for failure
to pay Plaintiff the Performance Compensation purportedly
owed; and (3) breach of the implied covenant of good faith
and fair dealing based on PuraCap: (a) improperly including
certain of PuraCap's expenses in its calculation of
"Net Profits," adversely impacting Plaintiffs
Performance Compensation and (b) restricting Plaintiffs
access to PuraCap's facilities. (Id.
April 4, 2018, PuraCap removed the action to this Court. On
April 11, 2018, PuraCap filed the instant motion to dismiss.
(D.I. 4). On April 25, 2018, Plaintiff responded to the
motion. (D.I. 8). The Court has considered the Complaint,
with attachments, and the parties briefing in connection with
Motion to Dismiss
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the
Court conducts a two-part analysis. Fowler v. UPMC
Shadyside,578 F.3d 203, 210 (3d Cir. 2009). First, the
Court separates the factual and legal elements of a claim,
accepting "all of the complaint's well-pleaded facts
as true, but [disregarding] any legal conclusions."
Id. at 210-11. Second, the Court determines
"whether the facts alleged in the complaint are
sufficient to show... a 'plausible claim for relief"
Id. at 211 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)). "The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims."
In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1420 (3d Cir. 1997) (quoting Scheuer v.
Rhodes,416 U.S. 232, 236 (1974)). The Court may grant a
motion to ...