MEMORANDUM RE: PREMIER PAYMENT ONLINE INC.’S MOTION TO DISMISS AND FOR A MORE DEFINITE STATEMENT
I. Introduction
This case arises out of transactions between Premier Payments Online, Inc. (“PPO”), a Pennsylvania corporation that acts as an intermediary with banks to provide credit card processing services to merchants, and Payment Systems Worldwide (“PSW”) and Centerline International, LLC (“Centerline”), a California corporation and a Nevada limited liability company with a common owner that resell payment processing services to merchants. Under certain purported agreements, Centerline and, subsequently, PSW referred merchants to PPO in exchange for commissions on the fees PPO earned from the merchants. In June 2009, PPO began withholding fees allegedly owed to PSW due to actual and potential chargebacks by merchants.
On May 26, 2011, PPO commenced a civil action in this Court, No. ll-CV-3429 (the “Pennsylvania Action”), by filing a complaint (the “Pennsylvania Complaint”) against PSW and Centerline, among others, asserting causes of action for breach of contract, unjust enrichment, misrepresentation, and declaratory relief.
On August 12, 2011, following briefing by the parties, the Court held oral argument on both the motion to dismiss and the motion to stay. The Court questioned counsel about a footnote in PSW’s and Centerline’s brief in response to PPO’s motion to stay indicating that PSW and Centerline “have no desire to litigate in two fora” and “would stipulate to transfer the California action to Pennsylvania and consolidate it with [the Pennsylvania Action] if this Court does not grant [their] Motion to Dismiss.” (No. ll-CV-3429, ECF No. 17 n. 1.) The Court noted that the Pennsylvania Action and the California Action are basically mirror images of one another, and explained that it was authorized to stay the California Action under the first-filed rule. The parties discussed whether Pennsylvania’s or California’s choice-of-law rules would apply to the California Action if it were transferred to this Court, an issue that the Court explained did not need to be resolved at that time. Following this discussion, PSW and Centerline agreed to file a motion in the Eastern District of California to transfer the California Action to this Court and consolidate it with the Pennsylvania Action. On August 17, 2011, the parties stipulated to transfer the California Action to this Court, and it was docketed as a separate civil action (No. ll-CV-5272).
That same day, the Court issued an opinion, denying PPO’s motion to stay as moot and noting that “[o]nce the California Action is transferred here, the Court anticipates realigning the parties so that the complaint in the California Action becomes a counterclaim in this action.” Premier Payments Online, Inc. v. Payment Sys. Worldwide, No. 11-CV-3429,
On September 1, 2011, PSW and Center-line filed a counterclaim (the “Pennsylvania Counterclaim” or “Pa. Countercl.”) in the Pennsylvania Action, asserting causes of action for breach of contract (Counterclaim Count I), unjust enrichment (Counterclaim Count II), declaratory relief (Counterclaim Count III), and conversion (Counterclaim Count IV). (No. ll-CV-3429, ECF No. 29.) The allegations supporting the causes of action for breach of contract, unjust enrichment, and declaratory relief in the Pennsylvania Counterclaim are virtually identical to the affirmative claims asserted by PSW and Centerline in the California Complaint. The table below compares the causes of action asserted in the California Complaint with those asserted in the Pennsylvania Counterclaim.
_California Complaint_Pennsylvania Counterclaim_
Breach of Contract (Count II)_Breach of Contract (Counterclaim Count I)
Unjust Enrichment (Count III)_Unjust Enrichment (Counterclaim Count II)
Declaratory Relief (Count IV)_Declaratory Relief (Counterclaim Count III)
Willful Failure to Pay Commissions (Count I) Conversion (Counterclaim Count IV)_
On September 26, 2011, PPO filed a motion seeking dismissal of the California Complaint and certain counts of the Pennsylvania Counterclaim, as well as a more definite statement, pursuant to Rules 12(b)(6) and 12(e) of the Federal Rules of Civil Procedure. (No. 11-CV-3429, ECF No. 31; No. 11-CV-5272, ECF No. 7). On October 20, 2011, PSW and Centerline filed a response to PPO’s motion. (No. 11-CV-3429, ECF No. 34; No. 11-CV-5272, ECF No. 9.) On October 31, 2011, PPO filed a reply in further support of the motion. (No. 11-CV-3429, ECF No. 35; No. 11-CV-5272, ECF No. 11.)
II. Factual Background
PPO markets and sells credit card processing services to merchants. (Ca. Compl. ¶ 8; Pa. Countercl. ¶ 5.) The fees PPO earns from providing these services are based primarily on the volume of credit card transactions processed by merchants. (Ca. Compl. ¶ 8; Pa. Countercl. ¶ 5.) PPO pays sales agents commissions to refer merchants to it. (Ca. Compl. ¶ 8; Pa. Countercl. ¶ 5.) The commissions a particular sales agent earns from PPO are based primarily on the volume of credit card transactions processed by merchants referred to PPO by the agent. (Ca. Compl. ¶ 8; Pa. Countercl. ¶ 5.) PSW is one such sales agent for PPO. (Ca. Compl. ¶ 9; Pa. Countercl. ¶ 6.)
Originally, PPO’s predecessor, CNP International Incorporated (“CNP”), and Centerline entered into a written agreement under which Centerline would refer merchants to CNP in exchange for commissions on the fees CNP earned on credit card transactions processed by those merchants. (Ca. Compl. ¶ 10; Pa. Countercl. ¶ 7.) Under the agreement, Centerline allegedly was not responsible for merchant chargebacks. (Ca. Compl. ¶ 14; Pa. Countercl. ¶ 11.) The agreement between Centerline and CNP later terminated. (Ca. Compl. ¶ 10; Pa. Countercl. ¶ 7.)
Subsequently, PPO proposed a written agreement to PSW for the provision of merchant referrals. (Ca. Compl. ¶ 10; Pa. Countercl. ¶ 7.) PSW rejected the proposal because it found the terms of the agreement unacceptable. (Ca. Compl. ¶ 10; Pa. Countercl. ¶ 7.) However, PPO and PSW entered into an oral agreement under which PSW would act as a sales agent for PPO and earn commissions in accordance with the payment structure previously in place between Centerline and CNP. (Ca. Compl. ¶¶ 11, 13; Pa. Countercl. ¶¶ 8, 10.) Under the agreement, PPO allegedly was obligated to make payments to PSW once per month. (Ca. Compl. ¶ 13; Pa. Countercl. ¶ 10.) Moreover, PPO allegedly was obligated to evaluate the risks posed by merchants referred to it by PSW and bear the risk of, any potential losses from chargebacks associated with merchants PSW referred to PPO. (Ca. Compl. ¶ 18; Pa. Countercl. ¶ 15.)
In response to PSW’s inquiries, PPO notified PSW that it unilateral!y decided to withhold commissions from PSW in an amount equal to the “potential exposure” from chargebacks associated with merchants PSW referred to PPO. (Ca. Compl. ¶¶ 15, 16; Pa. Countercl. ¶¶ 12, 13.) PPO also informed PSW that it took such action because of fraud related to certain merchant accounts. (Ca. Compl. ¶ 20; Pa. Countercl. ¶ 17; No. 11-CV-3429, ECF No. 34, at 3-4; No. 11-CV-5272, ECF No. 9, at 3-4.) As of the filing of the California Complaint, PPO had withheld $202,066.88 in commissions allegedly owed to PSW, even though PPO only incurred $2,173.63 in actual chargebacks associated with merchants PSW referred to PPO. (Ca. Compl. ¶¶ 16, 19; Pa. Countercl. ¶¶ 13,16.)
III. Parties’ Contentions
PPO contends that the California Complaint and certain counts of the Pennsylvania Counterclaim should be dismissed for several reasons. Initially, PPO contends that the California Complaint should be dismissed in its entirety pursuant to the first-filed rule and the compulsory counterclaim rule. Next, PPO contends that, even if dismissal of the entire California Complaint is not warranted, certain counts asserted therein should still be dismissed. Specifically, PPO contends the counts for unjust enrichment asserted in both the California Complaint and the Pennsylvania Counterclaim should be dismissed because unjust enrichment cannot be plead on top of a contract claim. In addition, PPO contends that the count for conversion asserted in the Pennsylvania Counterclaim should be dismissed because it is barred by the gist-of-the-action doctrine and fails to state a claim for relief. Further, PPO contends that the count for willful failure to pay commissions under the California Act asserted in the California Complaint should be dismissed because the Act does not apply to this case, and even it did, application of the Act would violate the dormant Commerce Clause of the United States Constitution. Finally, PPO and Centerline contend that PSW should be required to file a more definite statement because the Pennsylvania Counterclaim does not specify which agreements PSW and Centerline rely on in support of their breach of contract claim, it does not distinguish between PSW and Centerline, and it does not specify the damages that PSW and Centerline respectively seek.
In response, PSW and Centerline contend that neither the first-filed rule nor the compulsory counterclaim rule is applicable, and even if they did apply, neither rule would require dismissal of the California Complaint. Rather, the appropriate remedy, PSW and Centerline argue, is for the Court to consolidate the California Action with the Pennsylvania Action.
IV. Legal Standards
A. Jurisdiction
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because the parties are citizens of different states and the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.
B. Standards of Review
1. Motion to Dismiss for Failure to State a Claim
A claim may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for “failure to state a claim upon which .relief can be granted.” Fed. R.Civ.P. 12(b)(6). A valid complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Generally, a district court may consider only facts alleged in the complaint and its attachments on a motion to dismiss. Jordan v. Fox, Rothschild, O’Brien & Frankel,
The Third Circuit has held that a district court must conduct a two-part analysis to determine whether a claim survives a motion to dismiss. Fowler v. UPMC Shadyside,
2. Motion for a More Definite Statement
Under Rule 12(e) of the Federal Rules of Civil Procedure, “[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague of ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). “The Rule
In general, “a motion for a more definitive statement is generally disfavored, and is used to provide a remedy for an unintelligible pleading rather than as a correction for a lack of detail.” Frazier v. SEPTA,
V. Discussion
A. Motion to Dismiss for Failure to State a Claim
1. Contentions Related to Dismissal of California Complaint
a. First-Filed Rule
Initially, the Court rejects PPO’s contention that the first-filed rule requires dismissal of the California Complaint in its entirety. The first-filed rule is intended to “encourage[ ] sound judicial administration and promote[ ] comity among federal courts of equal rank” by “preventing] the judicial embarrassment of conflicting judgments.” E.E.O.C. v. Univ. of Pa.,
However, “courts have always had discretion to retain jurisdiction given appropriate circumstances justifying departure from the first-filed rule.” E.E.O.C.,
At this stage of the litigation, the first-filed rule does not apply. Crucially, the Eastern District of California no longer has jurisdiction over the California Action because it was transferred to this Court by agreement to be litigated in conjunction with the Pennsylvania Action before the
PPO has not cited, nor is this Court aware of, any case in which a federal court within the Third Circuit has applied the first-filed rule when two actions were pending before the same court. As the authorities cited by PPO itself indicate, courts have applied the first-filed rule in circumstances in which coordinate district courts have concurrent jurisdiction over different cases involving the same subject matter. See, e.g., Southampton Sports Zone, Inc. v. ProBatter Sports, LLC, No. 03-CV-3185,
Moreover, even if the first-filed rule did apply, it would not warrant dismissal of the California Complaint. When the first-filed rule applies, a court has the option of dismissing the second-filed case without prejudice, staying it for the duration of the first-filed case, or transferring it to the forum where the first-filed case was brought. Koresko,
Accordingly, the Court will deny PPO’s motion to dismiss pursuant to the first-filed rule.
b. Compulsory Counterclaim Rule
The Court also rejects PPO’s contention that the compulsory counterclaim rule requires dismissal of the California Complaint in its entirety. Rule 13(a)(1) of the Federal Rules of Civil Procedure, which sets forth the general compulsory counterclaim rule, provides:
A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
Fed.R.Civ.P. 13(a)(1). “The policy underlying this rule is judicial economy.” Transamerica Occidental Life Ins. Co. v. Aviation Office of Am., Inc.,
“For a claim to qualify as a compulsory counterclaim, there need not be precise identity of issues and facts between the claim and the counterclaim; rather, the relevant inquiry is whether the
In this case, PSW and Centerline do not dispute that the counts in the California Complaint are logically related to the counts in the Pennsylvania Complaint. Nor could they.' As this Court acknowledged at oral argument, the Pennsylvania Action and the California Action are basically mirror images of one another. Thus, the relevant question for the Court is not whether the compulsory counterclaim rule applies — it does — but what remedy is appropriate for the assertion of compulsory counterclaims in the California Complaint under the circumstances of this case.
Here, judicial economy would be best served by consolidating the California Action with the Pennsylvania Action. See Wells v. Rockefeller,
Accordingly, the Court will deny PPO’s motion to dismiss pursuant to the compulsory counterclaim rule. The Court, however, will consolidate the California Action with the Pennsylvania Action. PSW and Centerline may file an amended counterclaim in the Pennsylvania Action to add the claim for willful failure to pay commissions under the California Act, which was asserted in the California Complaint. Should PSW and Centerline do so, the Court’s rulings on the specific counts of the California Complaint in this Memorandum will apply to the amended counterclaim. The Court will order the Clerk of Court to close the California Action.
The Court will now turn to PPO’s specific contentions in support of dismissal of certain counts of the California Complaint and the Pennsylvania Counterclaim.
2. Contentions Related to Dismissal of Certain Counts of the California Complaint and the Pennsylvania Counterclaim
a. Choice of Law
PPO has moved to dismiss only certain counts asserted in the California Complaint and the Pennsylvania Counterclaim. Specifically, PPO has moved to dismiss the counts for unjust enrichment asserted in both the California Complaint and the Pennsylvania Counterclaim, the count for conversion asserted in the Pennsylvania Counterclaim only, and the count for willful failure to pay commissions under the California Act asserted in the California Complaint only. In addressing the counts for unjust enrichment and conversion, the parties rely on Pennsylvania law. But in
In federal diversity actions, district courts generally must apply the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co.,
No federal court in the Third Circuit has addressed the application of the Van Du-sen rule in the precise circumstances of this case. The Fourth Circuit, however, did address the rule’s application in remarkably similar circumstances in Volvo Construction Equipment North America, Inc. v. CLM Equipment Co.,
Upon being advised of the North Carolina court’s ruling on defendants’ motion, the Arkansas court transferred the Arkansas action to the Western District of North Carolina. Id. Thereafter, defendants filed a counterclaim in the North Carolina action,. asserting the same claims they asserted against plaintiffs in the Arkansas litigation. Id. at 590 & n. 8. Subsequently, the parties consented to consolidation of the two actions in the North Carolina court. Id. at 590. The North Carolina court later granted plaintiffs partial judgment on the pleadings, dismissed defendants’ counterclaims in the North Carolina litigation, and dismissed defendants’ affirmative claims in the Arkansas litigation. Id. at 590-91.
On appeal, defendants argued that the Van Dusen rule required the Fourth Circuit to apply Arkansas law to their affirmative claims in the Arkansas action and North Carolina law to their counterclaims in the North Carolina action. Id. at 600. The Fourth Circuit noted, however, that the transfer at issue “was not a typical
The legislative history of § 1404(a) certainly does not justify the rather startling conclusion that one might get a change of law as a bonus for a change of venue. Indeed, an interpretation accepting such a rule would go far to frustrate the remedial purposes of § 1404(a). If a change of law were in the offing, the parties might well regard the section primarily as a forum-shopping instrument.
Id. (quoting Van Dusen,
The Fourth Circuit observed that the claims asserted by defendants in the Arkansas litigation were “mirror images” of their counterclaims in the North Carolina action. Id. Thus, “applying Arkansas law to the Arkansas claims and North Carolina law to the North Carolina counterclaims could (in theory, at least) lead to different results on identical claims.” Id. Therefore, the Fourth Circuit concluded that “the choice-of-law rules of only one state should be applied to this action.” Id. However, the Fourth Circuit did not have to “definitively decide how this thorny issue should be resolved, because the choice-of-law principles of North Carolina and Arkansas are sufficiently similar that the outcome of this dispute would be the same under either set of rules.” Id.
The Fourth Circuit’s concerns about the rigid application of the Van Dusen rule in Volvo likely should apply to this case. As in Volvo, the transfer at issue here was not a typical convenience-of-the-witness transfer. Rather, the parties stipulated to transfer the California Action to the Eastern District of Pennsylvania after this Court indicated to them at oral argument that it was authorized to stay the California Action under the first-filed rule.
b. Unjust Enrichment
PPO contends that the counts for unjust enrichment asserted in both the California Complaint and the Pennsylvania
As a threshold matter, there appears to be an actual conflict in the most basic sense between Pennsylvania and California law in regard to unjust enrichment. See Hammersmith v. TIG Ins. Co.,
To the contrary, under Pennsylvania law, to state a claim for unjust enrichment, the plaintiff must allege “benefits conferred on one party by another, appreciation of such benefits by the recipient, and acceptance and retention of these benefits under such circumstances that it would be inequitable [or unjust] for the recipient to retain the benefits without payment of value.” Allegheny Gen. Hosp. v. Philip Morris,
A plaintiff is permitted to plead alternative theories of recovery based on breach of contract and unjust enrichment in cases where there is a “question as to the validity of the contract in question.” AmerisourceBergen Drug Corp. v. Allscripts Healthcare, LLC, Civ. A. No. 10-6087,
Previously, the Court — applying Pennsylvania law — denied PSW’s and Center-line’s motion to dismiss PPO’s unjust enrichment claim in the Pennsylvania Action because there was a dispute as to whether the parties were operating based on a course of dealing or a written contract. Now, however, on PPO’s motion to dismiss PSW’s and Centerline’s unjust enrichment claims, the parties agree that no written contract exists.
Despite the parties’ shift of positions, dismissing the unjust enrichment claims would not be warranted at this time under Pennsylvania law. PSW and Centerline allege that PSW entered into an oral agreement with PPO whereby PSW would earn commissions in accordance with the payment structure outlined in the previous written contract between Centerline and CNP. However, at this stage of the litigation, it is uncertain whether the oral agreement is a valid and enforceable contract governing the relationship between PPO and PSW.
Pending discovery and briefing, the Court will not decide whether the choice-of-law rules of California or Pennsylvania apply, or whether those rules require the application of California or Pennsylvania substantive law in regard to unjust enrichment. Accordingly, the Court will deny PPO’s motion to dismiss the unjust enrichment claims without prejudice.
c. Conversion
Next, PPO contends that the conversion count
The gist of the action doctrine “precludes plaintiffs from recasting ordinary breach of contract claims into tort claims.” Jones v. ABN Amro Mortg. Group, Inc.,
Although the Pennsylvania Supreme Court has not explicitly adopted the gist of the action doctrine, it has considerable support from Pennsylvania appellate courts. See, e.g., Reardon v. Allegheny Coll.,
Under Pennsylvania law, conversion is defined as “the deprivation of another’s right of property in, or use or possession of, a chattel, without the owner’s consent and without lawful justification.” Francis J. Bernhardt, III, P.C. v. Needleman,
“Courts have dismissed conversion claims under the gist of the action doctrine where the alleged entitlement to the chattel arises solely from the contract between the parties.” Brown & Brown, Inc. v. Cola,
At this stage of the litigation, the Court declines to determine whether the gist of the action doctrine bars the conversion claim. When the validity and if valid, the effect, of a contract is uncertain, courts have found application of the gist of the action doctrine on a motion to dismiss to be inappropriate. See, e.g., Hart v. Univ. of Scranton,
PSW and Centerline argue that they have a property interest in the commissions withheld by PPO. But PPO’s alleged duty to pay commissions very well may have arisen solely from the oral agreement between the parties. As discussed above, however, it is uncertain at this juncture whether the oral agreement is indeed a valid and enforceable contract. Thus, the Court cannot yet say with certainty that PPO’s alleged duty to pay commissions arose solely from the oral agreement.
For similar reasons, the Court rejects PPO’s contention that PSW and Centerline have failed to satisfy the elements of conversion to survive a motion to dismiss. PPO relies on Communications
Here, by contrast, it is unclear whether PSW’s and Centerline’s alleged right to commissions arose solely from their oral agreement, or from their course of dealing, or from some other source, or from some combination thereof. Moreover, assuming that such a right did exist, it is unclear when exactly that right arose. At this stage of litigation, the Court is unable to resolve these inquiries without the benefit of discovery. Thus, the Court cannot determine whether PSW and Centerline had an immediate right to commissions at the time of the alleged conversion.
Accordingly, the Court will deny PPO’s motion to dismiss the conversion claim,
d. Willful Failure to Pay Commissions
PPO further contends that the count for wiliful failure to pay commissions under the California Act in the California Complaint should be dismissed because the Act does not apply to this case, and even it did, application of the Act would violate the dormant Commerce Clause of the United States Constitution. In response, PSW and Centerline contend that the Act does, indeed, apply to this case, and that there is no basis for a dormant Commerce Clause challenge.
Section 1738.15 of the California Act provides a civil action for treble damages for a “wholesale sales representative” against “a manufacturer, jobber, or distributor who willfully fails to enter into a written contract as required by this chapter or willfully fails to pay commissions as provided in the written contract.” Cal. Civ.Code § 1738.15. Section 1738.12(a) of the Act defines “manufacturer” as “any organization engaged in the business of producing, assembling, mining, weaving, importing or by any other method of fabrication, a product tangible or intangible, intended for resale to, or use by the consumers of this state.” Cal. Civ.Code § 1738.15. Additionally, section 1738.12(b) of the Act defines “jobber” as “any business organization engaged in the business of purchasing products intended for resale and invoicing to purchasers for resale to, or use by, the consumers of this state.” Cal. Civ.Code § 1738.12(b). Moreover, section 1738.12(e) of the Act defines “wholesale sales representative” as “any person who contracts with a manufacturer, jobber, or distributor for the purpose of soliciting wholesale orders, is compensated, in whole or part, by commission, but shall not include one who places orders or purchases exclusively for his own account for resale and shall not include one who sells or takes orders for the direct sale of products to the ultimate consumer.” Cal. Civ.Code § 1738.12(e).
In this case, dismissal of the count for willful failure to pay commissions is not warranted at this stage of the litigation. Without discovery and briefing, it is premature to decide whether the Court should apply the choice-of-law rules of California or Pennsylvania, and whether those rules require a court to recognize a cause of action for willful failure to pay commissions under the California Act.
In addition, based on the Court’s review, there appears to be a dearth of cases applying the California Act, much less any case applying the Act in the precise circumstances here. Thus, without the bene
Further, it is premature for the Court to determine whether the dormant Commerce Clause bars the claim for willful failure to pay commissions at this stage of the litigation. To determine whether a state regulation violates the dormant Commerce Clause, a court “must first assess ‘whether the state regulation at issue discriminates against interstate commerce ‘either on its face or in practical effect.’ ’ ” Tri-M Group, LLC v. Sharp,
Accordingly, the Court will deny PPO’s motion to dismiss PSW’s claim for willful failure to pay commissions.
B. Motion for a More Definite Statement
PPO contends that PSW and Centerline should be required to file a more definite statement in the Pennsylvania Action because the Pennsylvania Counterclaim does not specify which agreements PSW and Centerline rely on in support of their breach of contract claim, it does not distinguish between PSW and Centerline, and it does not specify the damages PSW and Centerline respectively seek. In response, PSW and Centerline contend that they should not be required to file a more definite statement because the Pennsylvania Counterclaim provides adequate detail for PPO to frame a response and they are unable to provide further detail at this time without the benefit of discovery.
The Pennsylvania Counterclaim is not so vague or ambiguous that it rises to the level of unintelligibility, such that PPO cannot reasonably frame a response. To be sure, contrary to PPO’s contention, the Pennsylvania Counterclaim does specify which agreements PSW and Centerline rely on in support of their breach of contract claim and it also provides a basis for distinguishing between PSW and Center-line:
Centerline, which was owned by the same person who owns [PSW], began doing business with CNP ... pursuant to a written agreement. CNP then became [PPO]. Following this, the written agreement between Centerline and CNP terminated and [PSW] was formed.While [PPO] proposed a replacement written contract to [PSW], the terms were unacceptable to [PSW] and it refused to sign the proposed written agreement. Thus, [PSW] entered into an oral agreement with [PPO] to become sales agent for [PPO].
(Pa. Countercl. ¶¶ 7-8.) These allegations are incorporated by reference into PSW’s and Centerline’s breach of contract claim. (Id. at ¶ 18.) Although the Pennsylvania Counterclaim does not specify the damages that PSW and Centerline respectively seek, PPO does not cite any authority for the proposition that lack of such detail warrants a more definite statement under the circumstances. Moreover, PSW and Centerline have asserted that it is not possible for them to provide any more detail without discovery. The Court has no reason to question this assertion.
Accordingly, the Court will deny PPO’s motion for a more definite statement.
VI. Conclusion
For the reasons set forth above, the Court will deny PPO’s motion to dismiss the California Complaint and certain counts in the Pennsylvania Counterclaim and for a more definite statement.
An appropriate Order follows.
Notes
. PPO also sued Amtrak International, S.A. (''Amtrak”) and Patriare Holdings, Inc. (''Patriare”), for misrepresentation. The summons returned unexecuted as to Amtrak on July 5, 2011 (No. 11-CV-3429, ECF No. 8). The summons returned executed as to Patriare on July 11, 2011 {Id., ECF No. 11); however, Patriare has not entered an appearance.
. The Court's prior Memorandum on PPO's motion to stay the California Action and PSW's and Centerline’s motion to dismiss the Pennsylvania Complaint described the transactions and occurrences relevant to the present dispute. See Premier Payments Online, Inc. v. Payment Sys. Worldwide, No. 11-CV-3429,
. Because PSW and Centerline jointly filed a response to PPO's instant motion, the Court will attribute the arguments made in the response to both PSW and Centerline, even though certain arguments asserted therein relate only to the California Action, in which Centerline is not a plaintiff.
. Additionally, PSW and Centerline argue that PPO has waived its compulsory counter
. At oral argument, the Court made clear to the parties that it believed the first-filed rule applied in this case. At that time, however, the California Action and the Pennsylvania Action were pending before different district courts and the parties had yet to enter into a stipulation to transfer the California Action.
. Although PSW and Centerline assert that the California Action was transferred pursuant to § 1404(a), it actually appears to have been transferred pursuant to § 1404(b) because the parties stipulated to the transfer. Van Dusen and its progeny involved transfers pursuant to § 1404(a). The Court need not address whether this distinction is material to the application of the Van Dusen rule under the circumstances of this case at this time.
. Although PSW and Centerline styled their claim for conversion as one for common law and statutory conversion, counsel for PSW and Centerline informed counsel for PPO that the claim seeks relief for common law conversion only. (See No. 11-CV-3429, ECF No. 31-2, Ex. 2; 11-CV-5272, ECF No. 7-2, Ex. 2.)
. There is no Van Dusen issue as to the conversion claim because PSW and Centerline asserted it in the Pennsylvania Counterclaim only. Thus, the Court will apply Pennsylvania law.