M.D. v. Claudio

• Citation: 714 F.Supp.2d 508
• Decision Date: 14 May 2010
• Docket Number: Civil Action No. 09-1456.
• Parties: Antonio GIORDANO, M.D. v. Pier Paolo CLAUDIO, M.D., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

714 F.Supp.2d 508

Antonio GIORDANO, M.D.

v.Pier Paolo CLAUDIO, M.D., et al.

Civil Action No. 09-1456.

United States District Court,E.D. Pennsylvania.

May 14, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Richard L. Scheff, Jeffrey S. Feldman, Montgomery McCracken Walker & Rhoads LLP, Philadelphia, PA, for Plaintiff.

Jason A. Poling, Huntington, WV, Robert T. Vance, Jr., Law Offices of Robert T. Vance, Jr., Philadelphia, PA, for Defendant.

MEMORANDUM

PADOVA, District Judge.

Plaintiff Antonio Giordano, M.D. filed the instant action against Pier Paolo Claudio, M.D. and Robert Waters, Esq., alleging defamation related to a dispute over authorship credit for an academic article. In response, Claudio and Waters filed a Counterclaim and Third-Party Complaint against Giordano and Valentina Caracciolo, Ph.D, and subsequently filed an Amended Counterclaim and Third-Party Complaint, adding Marcella Macaluso, Ph.D. as a third-party defendant. We previously dismissed all claims against Caracciolo and Macaluso, and now before the Court is Counter-Defendant Giordano's Motion to Dismiss Claudio and Waters's Amended Counterclaim. For the following reasons, we grant the Motion in part and deny it in part.

I. BACKGROUND

The Amended Counterclaim alleges the following facts. ¹ Giordano is the Director for the Center of Biotechnology, College of Science and Technology at Temple University, a Professor of Biology for the College of Science and Technology at Temple University, and the Director of the Sbarro Institute for Cancer Research and Molecular Medicine in Philadelphia, Pennsylvania. (Am. Countercl. ¶ 1.) Giordano is also the Reviews Editor and Associate Editor of the Journal of Cellular Physiology (“JCP”). ( Id. ¶ 20.) Caracciolo is a post-doctoral fellow at Temple University. ( Id. ¶ 2.) During the relevant time period, Macaluso was a Research Assistant Professor in the Biology Department at Temple University. ( Id. ¶ 3.) Claudio was employed at Temple University until October 31, 2006, at which point he began employment at Marshall University in Huntington, West Virginia, where he set up a laboratory. ( Id. ¶ 13.) From 1993 to 2006, Claudio worked in close association with Giordano in Giordano's laboratory. ( Id. ¶ 4.) During that time, he performed a variety of research-related activities in association with Giordano, Caracciolo, and Macaluso. ( Id. ¶ 5.)

In September 2004, research commenced on the National Institutes of Health (“NIH”) Program Project 5P0INS036466-11 (“the Project”). ( Id. ¶ 6.) The final experiments were completed in 2006, and the Project concluded in May 2008. ( Id. ¶¶ 6, 12.) Claudio served as Co-Principal Investigator for the Project from approximately September 2004 through October 2006, during which time he also directed research for the Project and performed research-related activities. ( Id. ¶ 7.) Giordano served as Principal Investigator of the Project. ( Id. ¶ 8.)

On or about May 19, 2006, Giordano and Dr. Kamel Khalili, Director of the Project, asked Claudio to prepare a summary manuscript suitable for publication that would be submitted to the NIH as a status update. ( Id.) On approximately May 20, 2006, Caracciolo sent Claudio an email including “materials and methods” information to be included in Claudio's draft. ( Id. ¶ 9.) Claudio completed the progress report around May 22, 2006; it was subsequently submitted to the NIH. ( Id. ¶ 10.) Claudio sent updated drafts of his report to Caracciolo on or around September 21, 2006 and October 19, 2006. ( Id. ¶¶ 11, 12.) After Claudio left Temple University, he continued to communicate with Caracciolo regarding the Project, and Caracciolo used his cooperation, input, and knowledge to complete the Project. ( Id. ¶ 14.)

On or about March 26, 2007, the JCP published an article entitled “Interplay Between the Retinoblastoma Related pRb2/p130 and E2F-4 and -5 in Relation to JCV-Tag” (“the Article”). ( Id. ¶ 19.) The Article is substantially similar in text and substance to the reports Claudio prepared in 2006. ( Id.) In November 2006, Claudio had reminded Caracciolo via email of his co-authorship of the upcoming published article. ( Id. ¶ 15.) Giordano and Caracciolo had represented to Claudio that he would receive authorship credit if he contributed to and drafted significant portions of the Article. ( Id. ¶ 38.) However, before publication of the Article, Claudio's authorship credit was removed or omitted. ( Id. ¶ 22.) Instead, there was a note in the “Acknowledgments” section of the Article stating, “A special thank [sic] goes to professor Pier Paolo Claudio.” ( Id.) Claudio had not been informed that he would not receive authorship credit, and did not discover that he did not receive authorship credit until the Article was published. ( Id. ¶¶ 15, 23.)

On June 21, 2007, Claudio sent a letter to Temple University asking that the University conduct an inquiry into the reasons why he did not receive authorship credit. ( Id. ¶ 23.) ² On the same day, he contacted the JCP, and specifically Gary Stein, Ph.D, to request assistance in rectifying the authorship credit error. ( Id. ¶ 23.) Stein is the Executive Editor of the JCP and is a member of the Sbarro Institute Scientific Advisory Board. ( Id. ¶ 21.) On or about July 23, 2007, Giordano responded in a letter to Stein (“the Stein Letter”) to Claudio's communication to Stein regarding the authorship credit dispute, and stated that Claudio's contribution to the Project was not sufficient to support authorship credit in the Article, and that Stein could verify Giordano's position by communicating with Caracciolo and Macaluso. ( Id. ¶ 24.)

On or about August 9 and October 4, 2007, Claudio supplied Temple University with additional documentation demonstrating his contributions to the Project and the Article. ( Id. ¶ 25.) On or about November 28, 2007, Temple University conducted a teleconference interview with Claudio, in the presence of counsel. ( Id. ¶ 26.) At the request of Temple University personnel, Claudio submitted additional documents in support of his allegations and in response to specific questions raised by Temple University personnel on approximately December 3, 2007. ( Id. ¶ 27.) After an investigation, a subcommittee appointed by the Temple University Faculty Senate Personnel Review Committee found that Claudio merited authorship credit on the Article. ( Id. ¶ 28.) Giordano nevertheless refused to correct the authorship credit, claimed that the investigative subcommittee was biased and its findings incorrect, and instituted a lawsuit alleging defamation against Claudio and Waters. ( Id. ¶¶ 29-30.) Following Giordano's allegations of bias, Ann Weaver Hart, the President of Temple University, appointed a second committee, which conducted an investigation and obtained testimony from witnesses including Giordano and Claudio. ( Id. ¶¶ 31-32.) The second investigative committee issued a report of its findings on July 19, 2009, stating that “ ‘our Committee has unanimously determined that the scholarship and contributions to the active research by Professor Pier Paolo Claudio warrant his inclusion as a co-author on the referenced paper.’ ” ( Id. ¶¶ 32-33.) Giordano has continued not to take corrective action with respect to the authorship credit. ( Id. ¶ 34.)

The Amended Counterclaim asserts causes of action by Claudio against Giordano for fraud (Count 1); misrepresentation (Count 2); unfair competition (Count 3); conversion (Count 4); defamation (Counts 5-7); unjust enrichment, restitution, and specific performance (Count 8); and civil conspiracy (Count 10). The Amended Counterclaim also asserts a cause of action by Claudio and Waters against Giordano for abuse of process (Count 9). ³ On December 15, 2009, Giordano filed his Motion to Dismiss.

II. LEGAL STANDARD

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we look primarily at the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)). Legal conclusions, however, receive no deference, and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

A plaintiff's pleading obligation is to set forth “a short and plain statement of the claim,” Fed.R.Civ.P. 8(a)(2), which gives the defendant “ ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In the end, we will grant a Rule 12(b)(6) motion if the factual allegations in the complaint are not sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed.2004)). A complaint that offers “only ‘labels and conclusions' or ‘a formulaic...