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Thomas Davidson v. Patricia Schneider

March 11, 2011

THOMAS DAVIDSON, PLAINTIFF,
v.
PATRICIA SCHNEIDER, AN INDIVIDUAL; CONDITIONED OCULAR ENHANCEMENT, INC., AN ILLINOIS CORPORATION; DRIVE PERFORMANCE CORP., AN ILLINOIS CORPORATION, F/K/A FASTTRACK BASEBALL CORP. INC., NATIONAL BASEBALL AND SOFTBALL ACADEMY, INC., D/B/A ITRAC VISION TRAINING; AND DRIVE PERFORMANCE WHEELING, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Thomas Davidson, the owner of High Tech Vision Training, has brought suit against Patricia Schneider, Conditioned Ocular Enhancement, Inc. ("COE"), Drive Performance Corp., and Drive Performance Wheeling, LLC ("Drive Performance Wheeling") (collectively, "defendants"),*fn1 claiming breach of a settlement agreement; non-infringement, misuse, and invalidity of U.S. Patent No. 6,440,405 ("the '408 patent"); and tortious interference with prospective economic advantage. Before the court is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) and motion to strike pursuant to Rule 12(f).*fn2 For the reasons set forth below, defendants' motion [#15] is granted in part and denied in part.

BACKGROUND

The following facts are alleged in the complaint and are presumed true for the purpose of resolving the pending motion: Davidson is the owner of a business, High Tech Vision Training, which provides ocular vision training to baseball and softball players. Davidson has trained major league, minor league, and collegiate baseball teams and individual players in ocular vision training.

COE, Drive Performance Corp., and Drive Performance Wheeling are related business entities having the same web page and the same place of business. Like Davidson's business, they provide ocular vision training. Schneider is the sole manager of Drive Performance Wheeling, the president of COE, and the principal of Drive Performance Corp. COE is the assignee of the '408 patent.

COE, Schneider, and Davidson were previously engaged in litigation in this district. See Conditioned Ocular Enhancement, Inc. v. Bonaventura, No. 05 CV 2153.*fn3 In 2008, they entered a Confidential Settlement and Release Agreement to resolve the case. As part of the settlement agreement, Schneider and COE granted Davidson a paid up royalty free license to the '408 patent. Schneider and COE also agreed that they would not disparage Davidson or his business activities in any way. All successors and assigns, affiliated entities, shareholders, officers, directors, employees, agents, and related companies of COE and Schneider are bound by the agreement, including Drive Performance Wheeling and Drive Performance Corp.

Despite the terms of the settlement agreement, the defendants have, through their agent Eric Maleski, disparaged Davidson and accused Davidson of patent infringement in conversations with at least Michelle Thiry and Michael Hill, potential customers of Davidson's and Schneider's businesses. Maleski has stated that Davidson is not "allowed to be legally engaged in performing vision training of any kind," that Davidson is infringing the '408 patent, and that doing business with Davidson "might cause litigation." Compl. ¶¶ 28, 31. He also represented that Davidson's techniques do not work to improve vision training.

ANALYSIS

I. Motion to Strike

Before reaching defendants' challenges to Davidson's individual claims, the court must consider their request to strike the declarations and affidavits attached to Davidson's complaint. A motion to strike material from a pleading may be granted as to matter that is redundant, immaterial, impertinent, or scandalous. Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored and a court "ordinarily will not strike a pleading unless the court can confidently conclude that it is prejudicial to the objecting party." McDowell v. Morgan Stanley & Co., 645 F. Supp. 2d 690, 693 (N.D. Ill. 2009). Some exhibits are appended as factual support for Davidson's allegations. Others contain more detail than the allegations in the body of the complaint and occasionally repeat what is directly stated in the body of the complaint. While a complaint need not plead evidence, defendants have not pointed to any harm that arises from maintaining the affidavits and declarations as part of the pleadings. The exhibits will be considered in addressing the remainder of defendants' arguments. See Marks v. CDW Computer Ctrs., Inc., 901 F. Supp. 1302, 1309 (N.D. Ill. 1995) (considering exhibits to complaint in analyzing motion to dismiss).

Insofar as the motion to dismiss is denied, however, defendants will be obligated to answer the allegations of the complaint. Defendants are correct that the complaint fails to comply with the short and plain statement of the facts pleading rule, making it unduly burdensome to answer. The paragraphs consist of several sentences and often express more than one concept. Some paragraphs include references to testimony contained in attached declarations and affidavits of witnesses. Numerous evidentiary documents are attached as exhibits. This is unnecessary surplusage. Before the court will direct the defendants to answer, plaintiff must file an amended complaint. The amended complaint shall consist of numbered sentences (rather than paragraphs). Each allegation shall be directed at the elements of proof such that surplus evidentiary information is omitted. Evidentiary exhibits and declarations other than the referenced settlement agreement shall not be attached.

II. Motion to Dismiss for Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a motion to dismiss, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences in the plaintiff's favor. Nixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). In order to survive a 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of the claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The allegations in the complaint must be "enough to raise a ...


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