United States District Court, D. Maryland
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
Technology Composites ("LTC") and MV2 are two
companies that make and sell protective equipment. LTC sued
MV2 alleging patent infringement, and MV2 countersued,
requesting declaratory relief and alleging tortious
interference with prospective advantage. LTC filed a motion
to dismiss the tortious interference claim (ECF 18). It has
been fully briefed. For the reasons set forth below, it will
a Kansas company that sells products that protect personnel
and vehicles. Compl. ¶¶ 2, 3. It holds a patent
(the "'598 patent") for an improved armoring
panel. Id. ¶ 9. MV2 is a Maryland company that
provides armor systems for personnel and vehicles.
Id. ¶¶ 12, 15. On April 29, 2019, LTC
filed a complaint against MV2 alleging infringement of its
'598 patent. Id. ¶¶ 18, 19. On May 23,
2019, MV2 filed a counterclaim against LTC, requesting
declaratory judgment relating to the validity and
infringement of the patent, and alleging tortious
interference with prospective advantage. See
Counterclaim, ECF 16.
regard to the tortious interference claim, MV2 alleges the
following: On or about October 2017, LTC suggested that MV2
purchase armor panels from LTC in order to fulfill a
government contract, but MV2 declined. Id. ¶
55, 57. LTC then communicated its intention to interfere with
or obstruct MV2's business, and, as part of that, filed
the complaint in this case. Id. ¶ 58. The
complaint, however, is baseless because LTC knows or should
know that the '598 patent is invalid and MV2 is not
infringing the patent. The patent is invalid because, in its
application for the patent, LTC failed to disclose prior art
and the sale of non-LTC products that were material to the
patentability of the claims. Id. ¶¶ 14-20.
Additionally, LTC filed this complaint after being advised by
Mr. Bockbrader, an inventor of the patent and now a
consultant for MV2, that the MV2 products used the
"C"-shaped edge protector, id. ¶ 27;
LTC also actually or constructively knew that armor panels
with a "C"-shaped or "U"-shaped edge
protector channel were already being sold prior to its
application for the patent. Id. ¶¶ 22-24.
"Further, prior to filing the complaint, LTC did not
inspect the interior cross-section of any allegedly
infringing MV2 product. Id. ¶ 25.
to MV2, in addition to filing the complaint, LTC interfered
with MV2's business in two other ways. First, they sent a
letter to ITEN, a company that provides certain armor panel
materials to MV2, through counsel, advising them of the
lawsuit and requesting they retain certain documents.
Id. ¶¶ 63-67. MV2 alleges that this
litigation hold was overly broad, unduly burdensome, and
vexatious; that LTC has previously allowed ITEN to supply the
armor materials to other companies without objection and
without a license under the '598 patent; and that LTC
sent the letter to ITEN with no intent to file suit against
ITEN, no intent to request discovery from ITEN, and with the
primary purpose to interfere with the business relationship
between MV2 and ITEN. Id. ¶¶ 70-74.
Second, LTC communicated with Mr. Bockbrader, an inventor of
the patent and consultant to MV2, through counsel, inquiring
about the relationship between Mr. Bockbrader and MV2.
Id. ¶¶ 77-81. MV2 alleges LTC's
actions have caused it to limit essential communications with
suppliers, business partners and consultants; required it to
disclose the lawsuit to current and prospective business
partners and prospective financiers; disrupted its ability to
fulfill existing and prospective government contracts;
damaged its reputation; and compromised its relationships
with ITEN, with whom it had an existing open-ended
"verbal" contract, and Mr. Bockbrader. Id.
¶¶ 76, 83-97.
13, 2019, LTC filed this motion to dismiss, arguing that the
underlying conduct is protected by the absolute litigation
privilege and/or the Noerr-Pennington doctrine, and,
alternatively, that MV2 fails to state a claim for tortious
survive a motion to dismiss, the factual allegations of a
complaint "must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). "To
satisfy this standard, a plaintiff need not
'forecast' evidence sufficient to prove the elements
of the claim. However, the complaint must allege sufficient
facts to establish those elements." Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
omitted). "Thus, while a plaintiff does not need to
demonstrate in a complaint that the right to relief is
'probable,' the complaint must advance the plaintiffs
claim 'across the line from conceivable to
plausible.'" Id. (quoting Twombly,
550 U.S. at 570). Additionally, although courts "must
view the facts alleged in the light most favorable to the
plaintiff," they "will not accept 'legal
conclusions couched as facts or unwarranted inferences,
unreasonable conclusions, or arguments'" in deciding
whether a case should survive a motion to dismiss. U.S.
ex rel. Nathan v. Takeda Pharm. North Am., Inc., 707
F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC
v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).
has long recognized an absolute litigation privilege in
defamation suits, immunizing judges, witnesses, parties, and
counsel from liability for "defamatory statements
uttered in the course of a trial or contained in pleadings,
affidavits, depositions, and other documents directly related
to the case." DiBlasio v. Kolodner, 233 Md.
512, 522 (1964). The privilege applies not just to statements
made in judicial proceedings, but also to certain
out-of-court statements that are "connected to some
pending or ongoing proceeding." Norman v.
Borison, 418 Md. 630, 650, 656 (2011). An out-of-court
statement made by witnesses, parties, or judges is privileged
if it satisfies two prongs: 1) the proceeding with which it
is connected has an important public function and adequate
procedural safeguards, and 2) the context of the statement
indicates it "was made during the course of the
proceeding." Id. at 652, 657-58. The second
prong requires considering the purpose of the statement, the
individual's actions when making the statement, and to
whom the statement was made. Id. at 658.
in 2013 in Mixter v. Farmer, Maryland courts began
suggesting or assuming, without so holding, that the
privilege applies not just to defamation claims but to other
torts. Mixter v. Farmer involved a dispute between
two lawyers, wherein one (Farmer) sent letters "to
various Maryland attorneys discussing [Mixter's]
'unprofessional behavior"' and "seeking
information about other lawyers' negative experiences
with Mixter for a potential complaint with the Attorney
Grievance Commission of Maryland." 215 Md.App. 536,
541-42 (2013). Farmer also sent a letter to one of
Mixter's clients. Id. at 542. Mixter sued Farmer
for various torts, including tortious interference with
prospective advantage. Id.
court first addressed the absolute litigation privilege in
the context of defamation, noting that "even a meritless
complaint is privileged and the complainant's motive is
immaterial." Id. at 545. The Mixler
court then addressed whether the privilege also applied to
the other allegations, including the alleged tortious
interference with prospective advantage. The court found that
precedent and policy considerations suggested that the
privilege should be extended to other torts when they
"arise from the same conduct as the defamation
claim." Id. at 546-47. The court, however,
based its holding on two separate ...