The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge
Plaintiff moves to dismiss Counts I, IV, V and VI of
defendant's Counterclaim. This motion is decided without oral
argument pursuant to Fed.R.Civ.P. 78.
FACTS AND PROCEDURAL BACKGROUND
This matter involves a dispute between two competitors,
Syncsort Inc. and Innovative Routines International, Inc. Both
parties develop and sell sorting software for computers that
operate the UNIX operating system. Plaintiff produces and
licenses a sorting software product called "SyncSort UNIX."
Defendant markets a directly competing sorting product called
On July 29, 2004, plaintiff filed a Complaint against defendant
alleging claims for misappropriation of plaintiff's trade
secrets, copyright infringement, breach of licensing agreement,
false advertising, trademark infringement and dilution, and
unfair competition. On August 27, 2004, defendant filed its
Answer and Counterclaim of six counts. Count I alleges a
violation of Section 2 of the Sherman Act. More specifically,
defendant alleges that plaintiff is attempting to monopolize the sort software market for UNIX
operating systems by engaging in predatory pricing, leveraging
its monopoly position in the mainframe sort software market, and
by instituting this lawsuit. Count II alleges that plaintiff has
engaged in false advertising through its publication of
statements that represent that plaintiff's product is the fastest
and the only sort product designed for high performance. Count
III alleges that plaintiff has infringed on defendant's copyright
in its CoSORT software and related documentary materials. Count
IV states a claim for tortious interference with prospective
economic advantage. Count V states a claim for tortious
interference with contract. Count VI alleges unfair competition.
On September 20, 2004, plaintiff moved to dismiss Counts I, IV,
V and VI of the Counterclaim.
Standard for a Rule 12(b)(6) Motion to Dismiss
On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6),
the court is required to accept as true all allegations in the
pleading and all reasonable inferences that can be drawn
therefrom, and to view them in the light most favorable to the
non-moving party.*fn1 Pinker v. Roche Holdings Ltd.,
292 F.3d 361, 374 n. 7 (3d Cir. 2002). The question is whether the
claimant can prove any set of facts consistent with his or her
allegations that will entitle him or her to relief, not whether that person will ultimately prevail.
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
While a court will accept well-pled allegations as true for the
purposes of the motion, it will not accept unsupported
conclusions, unwarranted inferences, or sweeping legal
conclusions cast in the form of factual allegation. Miree v.
DeKalb County, Ga., 433 U.S. 25, 27 n. 2 (1977). Moreover, the
claimant must set forth sufficient information to outline the
elements of his claims or to permit inferences to be drawn that
these elements exist. Fed.R.Civ.P. 8(a)(2); Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). The Court may consider the
allegations of the pleading, as well as documents attached to or
specifically referenced in the pleading, and matters of public
record. Sentinel Trust Co. v. Universal Bonding Ins. Co.,
316 F.3d 213, 216 (3d Cir. 2003); see also 5B WRIGHT & MILLER,
FEDERALPRACTICE & PROCEDURE § 1357 at 299 (3d ed. 1998).
"A `document integral to or explicitly relied on in the
complaint' may be considered `without converting the motion [to
dismiss] into one for summary judgment.'" Mele v. Federal
Reserve Bank of N.Y., 359 F.3d 251, 255 n. 5 (3d Cir. 2004)
(citing In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997)). "Plaintiffs cannot prevent a court
from looking at the texts of the documents on which its claim is
based by failing to attach or explicitly cite them." Id.
The Supreme Court has expressly stated that motions to dismiss
under Rule 12(b)(6) should be granted "very sparingly" in
antitrust cases. In Hospital Building Co. v. Trustees of Rex
Hospital, 425 U.S. 738, 746-47 (1976) the Court held: "[I]n
antitrust cases, where the `proof is largely in the hands of the
alleged conspirators,' dismissals prior to giving the plaintiff
ample opportunity for discovery should be granted very sparingly."
(citing Poller v. Columbia Broadcasting System, Inc.,
368 U.S. 464, 473 (1962)).
Count I of defendant's Counterclaim states a cause of action
for a violation of Section 2 of the Sherman Act. More
specifically, defendant alleges an attempted monopolization
claim. The Third Circuit has said that "to prevail on attempted
monopolization claim under § 2 of the Sherman Act, `a plaintiff
must prove that the defendant (1) engaged in predatory or
anticompetitive conduct with (2) specific intent to monopolize
and with (3) a dangerous probability of achieving monopoly
power.'" Queen City Pizza, Inc. v. Domino's Pizza, Inc.,
124 F.3d 430, 442 (3d Cir. 1997) (quoting Spectrum Sports, Inc. v.
McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 890,
122 L.Ed.2d 247 (1993)). "In determining whether there exists a viable claim
of monopolization or attempted monopolization, an inquiry `into
the relevant product and geographic market' is required."
Syncsort Inc. v. Sequential Software, Inc., 50 F. Supp. 2d 318,
327 (D.N.J. 1999) (quoting Spectrum Sports, 506 U.S. at 459,
113 S.Ct. 884)). Thus, in addition to pleading facts that would
support the elements enumerated above, a claimant also "must
plead facts sufficient to demonstrate a viable relevant market."
Sequential Software, 50 F. Supp. 2d at 327 (citing Queen City
Pizza, 124 F.3d at 436; Schuylkill Energy Resources, Inc. v.
Pennsylvania Power & Light Co., 113 F.3d 405, 415 (3d Cir.
1997); Brader v. Allegheny General Hospital, 64 F.3d 869, 877
(3d Cir. 1995)).
Plaintiff contends that defendant has insufficiently pled some
of the necessary elements of an attempted monopolization claim.
Plaintiff first charges that defendant's allegations concerning the relevant market are deficient. Next, plaintiff
argues that defendant's allegations regarding anti-competitive
conduct are insufficient. Third, plaintiff contends ...