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Wells v. Kessler Corp.

United States District Court, E.D. Missouri, Eastern Division

March 12, 2018

KERRY S. WELLS, Plaintiff,



         This matter is before the Court on Defendant Charles C. McCloskey's motion to dismiss Plaintiff Kerry Wells's pro se complaint, and Plaintiff's motion for leave to amend his complaint. McCloskey is the only Defendant who has been served and who has entered an appearance in this matter. For the reasons set forth below, the Court will grant in part and deny in part Plaintiff's motion for leave to amend, deny as moot McCloskey's motion to dismiss the original complaint, and order Plaintiff to serve the remaining unserved Defendants within 21 days.


         On November 13, 2017, Plaintiff filed a pro se complaint in this Court, asserting one claim for patent infringement against McCloskey, Kessler Corporation, David Mark Allen, “Lincoln Corporation, ” “Pal G. Conkey, ” and various “unknown” Defendants. In his complaint, Plaintiff alleged that he retained the services of McCloskey as a patent attorney to assist him in obtaining a patent for his invention: an “Illuminated Address Sign.” Plaintiff alleges that McCloskey asked Plaintiff to execute a power of attorney granting McCloskey the authority to act on behalf of Plaintiff with respect to the patent application.

         According to the complaint, Plaintiff was awarded a design patent for his invention on December 7, 2010, U.S. Patent No. D628, 652. Plaintiff alleged, upon information and belief, that McCloskey then used the power of attorney to assign Plaintiff's design patent to the other Defendants without Plaintiff's knowledge or consent. Plaintiff alleged that the other Defendants, aided by McCloskey in the form of the assignment, then sold “the patent . . . via World Wide Distribution” and were receiving royalties to which they were not entitled.

         McCloskey moved to dismiss Plaintiff's complaint on December 6, 2017. McCloskey argued that the complaint failed to comply with Federal Rules of Civil Procedure 8 and 10, and failed to state a claim for patent infringement or any other cause of action. McCloskey also argued that the patent had not in fact been assigned, as evidenced by the fact that the United States Patent and Trademark Office's (“PTO”) public records showed that no assignment had been recorded as to U.S. Patent No. D628, 652 as of the date of McCloskey's motion. McCloskey attached to his motion to dismiss a screenshot of a patent assignment search on the PTO's website, reflecting the lack of a recorded assignment from August 1980 to the present.

         Plaintiff did not respond to the motion. Instead, Plaintiff filed several back-to-back motions for leave to amend his complaint, the most recent of which the Court now considers.[1] Plaintiff filed the current motion to amend his complaint on January 16, 2018. Plaintiff's proposed amended complaint names as Defendants McCloskey, Kessler Corporation, David Mark Allen, “Paul G. Conley, ” “Lincoln Industrial Corporation, ” “Vice Pres. Thomas S. Scott, ” Scott Allen Sanders, and Ayzik Grach, as well as the PTO and PTO employee, Mary Ann Calabrese. Plaintiff also names as Defendants Does 1-100. Plaintiff proposes to assert claims for patent infringement, fraud, violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and violation of the Missouri Uniform Trade Secrets Act (“MUTSA”).[2] Plaintiff's proposed amended complaint does not separate the claims into counts, or identify which claims are asserted against which Defendants, so the Court will assume that Plaintiff proposes to assert all claims against all Defendants.

         In support of these claims, Plaintiff again alleges that McCloskey requested and received a power of attorney from Plaintiff in order to unlawfully assign Plaintiff's design patent without Plaintiff's knowledge or consent. Specifically, Plaintiff alleges that McCloskey added as co-inventors to the patent Defendants Allen, Conley, Sanders, and Grach, and that McCloskey then assigned the patent to Lincoln Industrial Corporation and Scott.

         The proposed amended complaint includes no allegations against the PTO, and the only allegation referencing Calabrese is that Calabrese “stated that she couldn't talk to [Plaintiff] because [Plaintiff] was not one of the assignee[s] on the patent.” ECF No. 32 at 3. The proposed amended complaint also does not name or describe the Doe Defendants, or assert any allegations against them. As relief, Plaintiff seeks statutory damages for patent infringement, fraud damages in the amount of $50 million, punitive damages in the amount of $5 million, a declaration that McCloskey violated Plaintiff's “attorney/client rights, ” an order that McCloskey be disbarred or that this Court submit a complaint to the Missouri Supreme Court to revoke the rights granted to McCloskey to practice law, and an order that McCloskey be prosecuted.

         Plaintiff attaches to the proposed amended complaint several exhibits, including McCloskey's correspondence with Plaintiff regarding the patent application and request for a power of attorney; filings submitted to the PTO in connection with Plaintiff's patent application; screenshots of various Internet searches; and a screenshot of a PTO online search result for patent assignments, showing that there has been no record of assignment with respect to Plaintiff's patent application. The exhibit showing no record of assignment includes a disclaimer stating that “Assignment information on the assignment database reflects assignment documents that have been actually recorded. If the assignment for a patent was not recorded, the name of the assignee on the patent application publication or patent may be different.” ECF No. 32-1 at Ex. 16-b, p. 45. As to this exhibit, Plaintiff states in his proposed amended complaint that “the name of the assignee may be different so it [won't] display.” ECF No. 32 at 4.

         McCloskey opposes the motion for leave to amend, arguing that the amendment would be futile, largely for the reasons stated in his original motion to dismiss, including that the patent has not in fact been assigned, as further reflected in the exhibits to Plaintiff's proposed amended complaint. McCloskey also argues that Plaintiff fails to plead his fraud claims with particularity and fails to state a claim under RICO or the MUTSA.


         Under Federal Rule of Civil Procedure 15(a), a court “should freely give leave [to amend pleadings] when justice so requires.” Notwithstanding this liberal standard, a court may deny leave to amend where the proposed amendment would be futile. Reuter v. Jax Ltd., 711 F.3d 918, 922 (8th Cir. 2013).

         In determining whether Plaintiff's proposed amended complaint is futile, the Court recognizes that a “pro se complaint must be liberally construed, ” meaning that “if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014) (quoting Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004)). However, pro se plaintiffs “still must allege sufficient facts to support the claims advanced, ” and a ...

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