The opinion of the court was delivered by: GREENAWAY
GREENAWAY, JR., District Judge.
This matter comes before the Court on the motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 9(b) of defendants Roussel Corporation ("Roussel Corp.").; Roussel-Uclaf Holdings Corporation ("RU Holdings"); Hoechst Marion Roussel, Inc. (erroneously named in the Complaint as Hoechst Marion Roussel North America); and The Rugby Group, Inc. and Rugby Laboratories, Inc. (collectively "Rugby"). Defendants Roussel-Uclaf, S.A. ("Roussel-France") and Biochimica Opos, S.P.A. ("Opos")
have moved to dismiss for insufficiency of service of process or, in the alternative, for failure to state a claim. Defendants American Home Products Corporation and its subsidiary, American Cyanamid Company (collectively "AHP"), and defendants Zenith Goldline Pharmaceuticals, Inc. and its subsidiary, Zenith Laboratories, Inc. (collectively "Zenith"), have moved to dismiss the counts against them (counts III, IV, X and XI) pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff Eli Lilly ("Lilly"), a pharmaceutical company, filed the instant action on April 18, 1997 against its competitors, Opos and the Roussel Defendants.
Lilly alleges that Opos and the Roussel Defendants fraudulently obtained approval from the Federal Drug Administration ("FDA") to sell bulk cefaclor
(an antibiotic) to drug manufacturers in the United States. Lilly has also named as defendants other pharmaceutical companies (AHP, Zenith and Rugby) that purchased bulk cefaclor from Opos and manufactured retail dosage units. Lilly alleges that Opos and the Roussel Defendants violated the Lanham Act, 15 U.S.C. § 1126(b), (h) and (i); the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962; and the New Jersey Anti-Racketeering Act, N.J. Stat. Ann. § 2C:41-1, et seq. Lilly also alleges that Opos and Roussel Defendants committed common law fraud; negligent misrepresentation; common law conspiracy; and tortious interference with business relationships. Lilly also alleges violations of the Lanham Act, 15 U.S.C. § 1125(a), the New Jersey Unfair Competition Act, N.J. Stat. Ann. § 56:4-1; common law unfair competition; and unjust enrichment against all the defendants.
This Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a) and (b), as well as supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. This Court also has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(3).
Defendants Opos and Roussel-France have moved to dismiss for insufficiency of service of process or, in the alternative, for failure to state a claim. The remaining defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the Court shall deny Opos' and Roussel-France's motion to dismiss for insufficiency of service of process but shall grant the motion to dismiss the Complaint for failure to state a claim as to Counts I through XIII. Defendants' motion to dismiss Count XIV is denied. Defendants' motion to dismiss Count XV is granted based on the Court's ruling on Count XIV.
Since 1979, Lilly has manufactured and sold the antibiotic drug cefaclor under the brand name "CECLOR". For many years Lilly was the only manufacturer of cefaclor approved by the FDA. Lilly holds a number of process patents that relate to methods of manufacturing cefaclor. Lilly also owned a patent on the cefaclor compound which expired in 1992.
In 1990 or 1991, the Roussel Defendants, through Roussel Corp., Roussel-France and RU Holdings, solicited Lilly to purchase bulk cefaclor from Opos. Opos is an Italian chemical company that manufactures bulk pharmaceutical chemicals for generic drug companies. Lilly visited the Opos manufacturing facility in Milan, Italy, where the Roussel Defendants represented that Opos would be producing the bulk cefaclor. The Roussel Defendants represented to Lilly that their manufacturing process would not infringe upon Lilly's patents. However, Lilly declined to purchase bulk cefaclor from the Roussel Defendants.
In March 1991, Roussel Corp. and Opos requested that Lilly identify all process patents it owned which might be infringed if the Roussel Defendants imported or sold cefaclor in the United States.
By letter dated May 15, 1991, Lilly identified its process patents that covered its cefaclor manufacturing process. On August 26, 1991, Roussel Corp. represented to Lilly that it had reviewed Lilly's process patents and that the manufacturing process of cefaclor that Opos planned to use would not infringe upon any of Lilly's patents.
In 1992, defendant Opos sought FDA approval to sell bulk cefaclor in the United States.
Opos submitted the required Abbreviated Antibiotic Drug Application ("AADA") to the FDA's offices in Maryland by mail or wire. The FDA approved Opos' AADA in April 1995. On April 27, 1995, Lilly commenced a patent infringement action against Opos, AHP and Zenith in the United States District Court for the Southern District of Indiana ("Indiana Action") which is still pending.
From April 1995 until late 1996, Opos manufactured and sold bulk cefaclor monohydrate, the active ingredient in cefaclor finished products, in the United States.
In 1994 or early 1995, AHP and Zenith entered into agreements with Opos and the Roussel Defendants pursuant to which Opos and the Roussel Defendants would provide AHP's and Zenith's anticipated commercial requirements for bulk cefaclor. On April 27, 1995, defendants AHP and Zenith obtained authorization from the FDA to manufacture and sell retail dosage units of generic cefaclor made from Opos' cefaclor.
Zenith entered into an agreement with Rugby to provide it with retail dosage units of cefaclor. AHP, Zenith and Rugby marketed, distributed and sold generic cefaclor in competition with Lilly's cefaclor products.
In April 1995, as part of a proceeding initiated in Italy to challenge Opos' manufacturing of cefaclor ("Italian Action"), Lilly inspected Opos' manufacturing facility in Milan, Italy and obtained copies of two manufacturing tickets.
However, when Lilly attempted to reproduce the cefaclor manufacturing process reflected in the Opos manufacturing tickets, it discovered that "the purported cefaclor manufacturing process reflected in the Opos documents was not used to manufacture Opos Cefaclor." Complaint P 59. The manufacturing process reflected in Opos' documents "was not capable of producing sufficient quantities of certain necessary intermediate compounds to constitute a viable production process for cefaclor." Id.
In 1995, the FDA received several complaints about generic cefaclor formulated from Opos' bulk cefaclor including reports of adverse reactions to the drug. As a result thereof, in 1996, the FDA investigated Opos' AADA and its facility in Milan, Italy. The FDA discovered that the Opos cefaclor marketed and sold in the United States was not manufactured by Opos, was not manufactured in commercial quantities at the Opos plant in Milan and was not manufactured according to the process represented in the AADA.
On December 12, 1996, the FDA informed Opos that it had found that its AADA contained false and misleading information. In a letter to Mr. E. Fontana, the President of Opos, the FDA stated:
The Center for Drug Evaluation and Research has found that your firm submitted false and misleading information in applications filed with this Agency. This finding is based upon information provided to us by officials of your parent firm regarding the manufacturing process of the bulk drug Cefaclor USP in approved Abbreviated Antibiotic Drug Application 64-072 and in the Drug Master File
for this product and in two other Abbreviated Antibiotic Drug Applications. Evidence of manufacturing discrepancies was found in the May 1996 FDA inspection of your facility. Such a finding poses a significant question with regard to the reliability of the data and information contained in the applications that your firm has filed with this Agency.
On October 7, 1996, prior to the FDA's announcement that it had found false and misleading statements in the Opos AADA, defendant Roussel Corp. wrote a letter to its customers of bulk cefaclor, including AHP and Zenith. The letter stated that due to documentation and record-keeping issues in the chemical production process of Opos, Roussel Corp. had temporarily ceased all shipments of bulk cefaclor in the United States. On November 7, 1996, Roussel Corp. announced that it was withdrawing the AADA for Opos bulk cefaclor.
Roussel Corp. further advised its customers that it would voluntarily recall all unprocessed lots of bulk cefaclor, but this recall would not affect mid-process or finished cefaclor products.
The following day, November 8, 1996 (before the FDA's letter), Roussel-France publicly stated that the recall of Opos cefaclor was voluntary and that the recall was necessary due to some "incompleteness" in Opos's submissions to the FDA. Roussel-France further announced that the description of the production process in the Opos AADA was "not as detailed as the FDA requires" and that the "incompleteness" of the FDA submissions was "purely an administrative issue" and "there is no quality problem." Complaint P 72. On February 6, 1997, Roussel-France issued a statement announcing that the FDA was concerned about the irregularities in the documentation provided by Opos and therefore, recommended that finished dosage forms of cefaclor be recalled at the wholesale level. Id. P 74.
AHP and Zenith continued to market and sell retail dosage units of cefaclor made from Opos' bulk cefaclor until February 1997. At that time, they sent a product recall notice to their wholesale customers indicating a recall of all generic cefaclor at the wholesale level due to record keeping and documenting issues at Opos' Milan, Italy factory. In the recall notices, AHP and Zenith informed their customers that the FDA had designated the situation as a Class II Health Hazard. AHP and Zenith notified their customers that the FDA defines a Class II Health Hazard as a situation which may cause potentially serious but reversible adverse health consequences.
Lilly commenced the instant action on April 18, 1997, alleging violations of the Lanham Act and RICO and their New Jersey statutory equivalents as well as a host of common law claims. In essence, the Complaint asserts that Opos and the Roussel Defendants obtained FDA approval to sell bulk cefaclor in the United States by making false and misleading representations about how and where they manufactured bulk cefaclor. Lilly claims that Opos used a different process to manufacture bulk cefaclor than had been identified in its AADA.
Lilly further alleges that Opos did not manufacture bulk cefaclor in a facility in Italy, as represented to the FDA, but instead manufactured it in a facility in Romania.
The Complaint also alleges that Opos and the Roussel Defendants made these same misrepresentations to Lilly in 1990 or 1991. Lilly further alleges that all of the defendants made misleading statements about the reasons for the withdrawal of the Opos AADA and the recall of Opos cefaclor. Lilly also alleges that AHP, Zenith and Rugby misleadingly used the terms "generic", "cefaclor" or "alternative to brand name drugs" in product inserts and marketing materials to refer to Opos cefaclor thereby implying that the FDA had determined that their retail dosage units of cefaclor were safe and effective.
Defendant Opos is an Italian company based in Italy. Defendant Roussel-France is a French company based in France. Lilly attempted to serve defendants Opos and Roussel-France by mailing the Summons and Complaint to their offices in their respective countries. Opos and Roussel-France received the Summons and Complaint; however, they moved to dismiss for insufficiency of service, alleging that service by mail violates the Hague Convention. In the alternative, Defendants Opos and Roussel-France moved, along with the other defendants, to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).
INSUFFICIENCY OF SERVICE OF PROCESS
Rule 4 of the Federal Rules of Civil Procedure governs service of process. When process is served abroad, it must comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361 ("Hague Convention"). See Fed. R. Civ. P. 4(f)(1); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 100 L. Ed. 2d 722, 108 S. Ct. 2104 (1988). The provisions of the Hague Convention are mandatory; failure to comply voids the attempted service. See Volkswagenwerk, 486 U.S. at 698. The purpose of the Hague Convention was to create an "appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time." See Hague Convention, Preamble, 20 U.S.T. at 362.
The Hague Convention authorizes several different ways to effectuate service of process upon a foreign defendant. The primary method, set forth by Articles 2 through 6, requires each signatory country to establish a Central Authority to monitor and ensure proper service. Articles 8 and 9 allow for service by way of diplomatic channels or consular agents, respectively. Article 11 empowers the signatory countries to agree to any other method of service not specifically provided for in the Hague Convention. Article 19 permits service by any method of service permitted by the internal laws of the country in which service is being made.
Lilly attempted to serve defendants Opos and Roussel-France
under Article 10. Article 10 provides in relevant part:
Provided the State of destination does not object, the present Convention shall not interfere with--
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
Article 21 sets forth the formal procedure by which objections to service under Article 10(a) are to be made.
See Hague Convention, art. 21. France and Italy have not objected to such service.
See Hague Convention, Annex, n.12 & 16.
Defendants Opos and Roussel-France contend that Article 10 of the Hague Convention does not authorize service by mail because the word "send" used in Article 10(a) is not the equivalent of service of process.
The U.S. Courts of Appeal are split over the proper interpretation of Article 10(a). Neither the Third Circuit nor the United States Supreme Court have addressed the issue.
The Second Circuit and many district courts have held that Article 10(a) authorizes service of process by mail. See, e.g., Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir. 1986); EOI Corp. v. Medical Mktg. Ltd., 172 F.R.D. 133, 142 (D.N.J. 1997); R. Griggs Group Ltd. v. Filanto S.P.A., 920 F. Supp. 1100 (D. Nev. 1996); Zisman v. Sieger, 106 F.R.D. 194 (N.D. Ill. 1985); Chrysler Corp. v. General Motors, 589 F. Supp. 1182 (D.D.C. 1984). These courts have held that the word "send" in Article 10(a) was intended to mean "service". See Ackerman, 788 F.2d at 838. The Appellate Division of the Superior Court of New Jersey has also concluded that Article 10(a) allows service by mail:
This is the only construction which will achieve the [Hague] Convention's stated goal of effective, expeditious and inexpensive service, ...of providing a simpler way to serve process abroad.... Moreover, interpretation of Article 10(a) as permitting mail service is generally considered the sounder view by those considered to be authoritative in the field... It appears that a majority of the courts which have considered the matter have found mail service is permitted.
Conversely, the Eighth Circuit and many district courts have held that Article 10(a) does not authorize service of process by mail. See, e.g., Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir. 1989); Golub v. Isuzu Motors, 924 F. Supp. 324 (D. Mass. 1996); Raffa v. Nissan Motor Co., 141 F.R.D. 45 (E.D. Pa. 1991); Hantover, Inc. v. Omet, 688 F. Supp. 1377, 1385 (W.D. Mo. 1988). These courts have held that the word "send" in Article 10(a) is not equivalent to "service of process". These courts have concluded that the use of the word "service" in Article 10(b) and (c) is evidence that the drafters of the Hague Convention intended to distinguish between "sending" judicial documents and "serving" process. See Bankston, 889 F.2d at 173-74. The Eighth Circuit and its progeny concluded that "Article 10(a) merely provides a method for sending subsequent documents after service of process has been obtained by means of the central authority." Id. at 174.
Article 10(a) Authorizes Service by Mail
This Courts finds the Second Circuit's interpretation of Article 10(a) persuasive. In addition to the judicial authority, both within and outside the District of New Jersey, see, e.g., EOI, 172 F.R.D. at 142; Ackerman, 788 F.2d at 838; R. Griggs, 920 F. Supp. 1100; Zisman, 106 F.R.D. 194; Chrysler, 589 F. Supp. 1182, the United States State Department interprets Article 10(a) as allowing service by mail. Subsequent to the Eighth Circuit's decision in Bankston, 889 F.2d 172, the State Department's legal advisor stated that "the decision of the Court of Appeals in Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service the sending of a copy of the summons and complaint by registered mail to a defendant in a foreign country." (Letter from Alan J. Kreczco, U.S. Dep't of State Legal Advisor to the Admin. Off. of the U.S. Courts and the Nat'l Center for State Courts of 3/14/91, excerpted at 30 I.L.M. 260.) "Although not dispositive, courts often give great weight to treaty interpretations made by the Executive Branch." R. Griggs, 920 F. Supp. at 1106 (citing Restatement (Third) of Foreign Relations Law of the United States § 326(2)(1986)); see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85, 72 L. Ed. 2d 765, 102 S. Ct. 2374 (1982).
The role of a court in interpreting a treaty is "limited to ascertaining and enforcing the intent of the treaty parties." MacNamara v. Korean Air Lines, 863 F.2d 1135, 1143 (3d Cir. 1988); see also Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 133 L. Ed. 2d 596, 116 S. Ct. 629 (1996)(noting that a court should consider the negotiating and drafting history of the treaty and the "post-ratification understanding of the contracting parties"). Other signatories to the Hague Convention have indicated that they understood Article 10(a) as referring to service of process. In 1977, a special commission of representatives from the signatory states, including the United States and France,
met to discuss the operation of the Hague Convention. See Report on the Work of the Special Commission on the Operation of the Convention, 17 I.L.M. 319(Mar. 1978)("Special Commission"). The Special Commission reported that:
It was determined that most of the States made no objection to the service of judicial documents coming from abroad directly by mail in their territory. For those States who objected to this channel, a distinction was made between use of the postal channel as the sole method of service and service through the postal channel which was complementary to another means of effecting service.
Id. at 326. The Special Commission further noted that, "the States which object to the utilization of service by post sent from abroad are known thanks to the declaration made to the Ministry of Foreign Affairs." Id. at 329.
In addition, the Hague Conference on Private International Law working in "close cooperation" with the signatory states, created the Practical Handbook on the Operation of the Hague Convention of 15 November, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1992)("Practical Handbook"). See Practical Handbook at vi. The Practical Handbook specifically lists service by mail as valid under the Hague Convention. Id. at v. It also discusses the drafting and negotiating history of Article 10(a) and concludes that the "implicit understanding of the delegates at the 1977 Special Commission meeting and indeed of the legal literature of the Hague Convention and its predecessor treaties" was that Article 10(a) allows service of process by mail. Id. at 44.
Finally, Bruno Ristau, who served as the United States representative to the Special Commission and who has been identified as the leading commentator on the Hague Convention, has explained that Article 10(a) applies to service of process. See EOI, 172 F.R.D. at 137 & n. 11. The Second Circuit noted that Mr. Ristau has studied the drafting history of the [Hague] Convention and reached the "inescapable" conclusion that Article 10(a) applies to service of process. See Ackerman, 788 F.2d at 839 (citing 1 B. Ristau, International Judicial Assistance (Civil and Commercial) §§ 4-10, 132, §§ 4-28, 165-67 (1984)). In the 1995 revision to his treatise, Mr. Ristau states that:
Article 10(a) provides that, unless a contracting state has by its declaration expressly prohibited it, service of foreign judicial documents may be effected within its territory by mail... The negotiating history of Article 10... indicates that "sending" of judicial documents by mail was intended to include service of process.
1 B. Ristau, International Judicial Assistance (Civil and Commercial) § 4-3-5(2), 148-49 (1995).
In 1989, the signatory States met for a Second Special Commission. See The Hague Conference on Private International Law: Special Commission Report on the Operation of the Hague Service Convention and the Hague Evidence Convention, 28 I.L.M. 1556, 1561 (Apr. 1989)("Second Special Commission"). The Second Special Commission rejected the Bankston decision and wrote:
It was pointed out that the postal channel for service constitutes a method which is quite separate from service via the Central Authorities or between judicial officers. Article 10(a) in effect offered a reservation to Contracting States to consider that service by mail was an infringement of their sovereignty. Thus, theoretical doubts about the legal nature of the procedure were unjustified.
The Courts which have rejected the Bankston interpretation rejecting service by mail in favor of the Ackerman interpretation of Article 10(a) have observed that the [Hague] Convention's drafters' use of the word "send" instead of "service" is not unique to Article 10(a). See EOI, 172 F.R.D. at 138-39. For example, Article 21 uses the phrase "methods of transmission" as a synonym for service. Id. at 138. Courts have concluded that "it is reasonable that the drafters simply varied the language in [Article 10(a)] when discussing service." Id.; see also R. Griggs, 920 F. Supp. at 1105.
Furthermore, if Article 10(a) did not apply to service of process, but "merely provides a method for sending subsequent documents after service of process has been obtained by means of the central authority," Bankston, 889 F.2d at 174, it would have been illogical for the drafters to include it in the midst of provisions addressing alternative methods of service such as Article 10(b) and 10(c). "The placement of one lone provision dealing with the mailing of nonservice documents in the midst of fifteen articles addressing service of process, would be inconsistent with the structure of the entire [Hague] Convention." R. Griggs, 920 F. Supp. at 1105. "Because the [Hague] Convention as a whole does not purport to address aspects of litigation other than service of process, Article 10(a) would be anomalous if it related to a subject other than service." Id.; see also EOI, 172 F.R.D. at 137 (citations omitted)("Article 10(a) would be out of place in Article 10, and in the entire [Hague] Convention, if it did not relate to 'sending' judicial documents for the purpose of 'serving process.'"); Borschow Hosp. & Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472, 480 (D.P.R. 1992)("It is beyond peradventure that the sole aim of the [Hague] Convention is to regulate service of process on non-resident foreign defendants.").
Defendants Opos and Roussel-France argue that this Court should find that France and Italy would object to service by mail because these nations do not allow service in domestic actions to be effected by mail. However, a signatory state's internal law is not relevant to Article 10(a). As stated by the Appellate Division:
We are called upon to construe the [Hague] Convention and as to that the meaning of Article 10(a) must be the same with respect to all the signatory nations. Their internal laws as to mail service may be, and undoubtedly are, diverse. The meaning of this international treaty must be uniform.
Gapanovich, 255 N.J. Super. at 615.
Furthermore, numerous courts have held that service by mail is valid in France and Italy. See R. Griggs, 920 F. Supp. at 1103, 1107-08 (Italy); Robins v. Max Mara, U.S.A., Inc., 923 F. Supp. 460, 469 (S.D.N.Y. 1996) (Italy); G.A. Modefine, S.A. v. Burlington Coat Factory Warehouse Corp., 164 F.R.D. 24, 25 (S.D.N.Y. 1995) (Italy); Melia v. Les Grands Chais de France, 135 F.R.D. 28, 35-36 (D.R.I. 1991) (France); Hutchins v. Beneteau (U.S.A.), Ltd. S.A., 1990 U.S. Dist. LEXIS 1725, Civ. A. No. 89-4806, 1990 WL 17533, *2 (E.D. La. Feb. 15, 1990) (France). Moreover, as shown above, various other authorities have stated that Article 10(a) allows service by mail unless a country has formally objected. However, neither France nor Italy have objected. If France and Italy objected to service by mail under Article 10(a), they should have declared their objection in accordance with Article 21. Moreover, since France did formally object to Article 8, it is obviously familiar with the procedure.
Neither Roussel-France nor Opos denies that they actually received the Summons and Complaint. "Service of process must satisfy both the statute under which service is effectuated [in this case, the Hague Convention] and constitutional due process." Ackerman, 788 F.2d at 838. The purpose of the rules governing service of process is to insure that parties receive actual notice of claims against them. See Hanna v. Plumer, 380 U.S. 460, 462 n.1, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965). "The primary impetus for requiring service of process is 'to create appropriate means to insure that judicial and extrajudicial documents to be served abroad' are 'brought to the notice of the addressee in sufficient time...'" EOI, 172 F.R.D. at 143 (quoting Hague Convention, at Preamble); see also Volkswagenwerk, 486 U.S. at 698 (noting that the Hague Convention was intended to "provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad."). Service by mail satisfies the due process requirements of adequate notice and an opportunity to be heard. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950).
Since service by mail satisfies due process and is authorized under the Hague Convention, Defendants Opos' and Roussel-France's motion to dismiss for insufficiency of service of process is denied.
A. Standard for a Motion to Dismiss
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) may be granted only, if accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996); Holder v. City of Allentown, 987 F.2d 188, 194 (3d. Cir. 1993); Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986). The Court may not dismiss the complaint unless plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997); Unger v. National Residents Matching Program, 928 F.2d 1392, 1395 (3d Cir. 1991); Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). In setting forth a valid claim, a party is required only to plead "a short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a).
To withstand a motion to dismiss, "a plaintiff is not required to provide evidence of or prove the truthfulness of his complaint." Quinones v. Szorc, 771 F.2d 289, 291 n.3 (7th Cir. 1985). However, the Court is not required to accept conclusory allegations. Papasan v. Allain, 478 U.S. 265, 286, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986). Thus, the "complaint must set forth sufficient information to suggest that there is some recognized legal theory upon which relief may be granted." District of Columbia v. Air Florida, 243 U.S. App. D.C. 1, 750 F.2d 1077, 1078 (D.C. Cir. 1984).
B. Section 43(a) of the Lanham Act (Counts I and III)
Section 43(a) of the Lanham Act provides:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, which--
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or her or another person's goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a) (1988). Section 43(a) "creates a cause of action for any false description or representation of a product." U.S. Healthcare v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 921 (3d Cir. 1990). However, the broad language of section 43(a) "proscribes not only trademark infringement in its narrow sense, but more generally creates a federal cause of action for ...