United States District Court, D. Colorado
DR. BRADLEY BARNETT, Plaintiff,
SUREFIRE MEDICAL, INC. and DR. ARAVIND AREPALLY, Defendants.
A. BRIMMER United States District Judge
matter comes before the Court on Defendants' Motion to
Dismiss Plaintiff's Seventh Claim for Unjust Enrichment
and Memorandum of Points and Authorities in Support Thereof
[Docket No. 18]. The Court has jurisdiction pursuant to 28
U.S.C. § 1331 and 1367.
case involves a patented design for an anti-reflux catheter.
See Docket No. 1 at 1. Plaintiff alleges that he
developed the design in 2007 while working at Johns Hopkins
Medical Institution (“JHMI”) under the
supervision of defendant Aravind Arepally. Id. at
4-7, ¶¶ 7, 11, 15, 18. In 2009, Dr. Arepally left
JHMI and co-founded defendant Surefire Medical, Inc.
(“Surefire”). Id. at 9-10, ¶¶
23-24. On December 2, 2009, Surefire filed a revised
provisional patent application for an anti-reflux catheter
design featuring an expandable and retractable mesh tip.
Id. at 10, ¶ 25. On July 2, 2010, Surefire
filed a non-provisional patent application (the
“'525 Application”) claiming priority from
the revised provisional application and formally identifying
Dr. Arepally as an inventor of the anti-reflux catheter
design. Id. at 11-12, ¶¶ 29-30. On August
6, 2013, the U.S. Patent and Trademark Office issued U.S.
Patent No. 8, 500, 775 (775 Patent”) from
Surefire's non-provisional patent application.
Id. at 12, ¶ 30; Docket No. 1-3 at
The '775 Patent describes a “protection device and
method against embolization agent reflux” and lists
James E. Chomas, Leonard Pinchuk, John Martin, and Aravind
Arepally as inventors. Docket No. 1-3 at 2. Surefire is
listed on the patent as the “assignee.”
Id. After the issuance of the '775 Patent,
Surefire obtained additional patents based in whole or in
part on the '525 Application. Docket No. 1 at 12,
inventor at JHMI, plaintiff claims he was
“contractually entitled to compensation for
commercialization of any patent that issued based on his
invention pursuant to [Johns Hopkins University's]
Intellectual Property Policy.” Docket No. 1 at 8,
12-13, ¶¶ 20, 32. He further states that
“there is a definitive reputational advantage [in
academia] to being named an inventor on patents that result
in medical products as well as receiving research grants
utilizing said technology.” Id. at 13, ¶
34. Plaintiff alleges that Surefire and Arepally have derived
substantial benefit from the anti-reflux catheter patents in
the form of investments, compensation, and professional
advancement. Id. at 13, ¶¶ 35-37.
Plaintiff asserts that defendant Arepally has received at
least $135, 000 in consulting fees related to the anti-reflux
catheters beginning in 2015. Id., ¶ 37.
filed this lawsuit on October 16, 2017 asserting six claims
for correction of inventorship and damages in relation to
various patents issued to Surefire, and one claim for unjust
enrichment against Dr. Arepally. See Id. at
18-29. On November 30, 2017, defendants moved to
dismiss the unjust enrichment claim under Fed.R.Civ.P.
12(b)(6) on the ground that the claim is barred by the
applicable statute of limitations. Docket No. 18. Plaintiff
filed a response to the motion on December 21, 2017, Docket
No. 19, to which defendants replied on January 4, 2018.
Docket No. 20.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must allege
enough factual matter that, taken as true, makes the
plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted); see also Khalik, 671 F.3d at 1190
(“A plaintiff must nudge [his] claims across the line
from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint's allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,
” then plaintiff has not stated a plausible claim.
Khalik, 671 F.3d at 1191 (quotations omitted). Thus,
even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (alteration marks omitted).
a statute of limitations bar is an affirmative defense, it
may be resolved on a Rule 12(b)(6) motion to dismiss
‘when the dates given in the complaint make clear that
the right sued upon has been extinguished.'”
Torrez v. Eley, 378 Fed.Appx. 770, 772 (10th Cir.
2010) (unpublished) (quoting Aldrich v. McCulloch Props.,
Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)).
argue that plaintiff's unjust enrichment claim accrued no
later than August 6, 2013, the date on which the '755
Patent was issued, and is therefore barred by the three-year
statute of limitations in Colo. Rev. Stat. §
13-80-101(1). Docket No. 18 at 5. Plaintiff responds that (1)
defendants have failed to show that Colorado law applies
rather than the law of Maryland or Georgia; (2)
plaintiff's cause of action did not accrue in 2013
because Arepally had assigned all rights in the patent to
Surefire and therefore obtained no benefit from the issuance
of the patent until 2015; (3) even assuming Colorado law
governs plaintiff's unjust enrichment claim, the
applicable limitations period is six years, not three; and
(4) there are extraordinary circumstances in this case
precluding application of the statute of limitations to
plaintiff's unjust enrichment claim. Docket No. 19 at
Whether a Six-Year Limitations Period Applies
the parties' briefs discuss the choice of law issue
first, the Court will begin by addressing whether the
six-year limitations period under Colo. Rev. Stat. §
13-80-103.5(1)(a) applies given that six years is the longest
limitations period potentially applicable to plaintiff's
unjust enrichment claim under Colorado, Maryland, or Georgia
Colorado law, “[e]quitable claims . . . are technically
subject to an equitable laches rather than a legal statute of
limitations analysis.” Sterenbuch v. Goss, 266
P.3d 428, 436 (Colo.App. 2011). Absent extraordinary
circumstances, “a court will usually grant or withhold
relief by analogy to the statute of limitations relating to
actions at law of like character.” Id.
(internal quotation marks and brackets omitted).
courts have typically assessed unjust enrichment claims,
which are brought in quasi-contract or contract implied in
law, “under the three-year statute of limitations for
contract actions.” Id. at 437 (citing Colo.
Rev. Stat. § 13-80-101(1)(a)). Here, however, plaintiff
contends that the six-year statute of limitations set forth
in Colo. Rev. Stat. § 13-80-103.5(1)(a) applies because
his claim is for “a readily ascertainable amount,
” namely, “a percentage of the amount Arepally
was paid beginning in 2015 related to commercialization of
the patented inventions.” Docket No. 19 at 11.
13-80-103.5(1)(a) provides, in relevant part, that a six-year
limitations period applies to “[a]ll actions to recover
a liquidated debt or an unliquidated, determinable amount of
money due to the person bringing the action.”
Defendants argue that plaintiff's complaint “does
not allege either a liquidated debt or a ‘determinable
amount' allegedly misappropriated by Arepally, ”
and thus the three-year limitations period under Colo. Rev.
Stat. § 13-80-101 applies. Docket No. 20 at 4.
Portercare Adventist Health System v. Lego, 286 P.3d
525 (Colo. 2012), the Colorado Supreme Court held that a
claim involves “liquidated debt” under §
13-80-103.5(1)(a) if “the amount owed is ascertainable
either by reference to the agreement, or by simple
computation using extrinsic evidence if necessary.”
Id. at 526. The court reasoned that the claim at
issue, which sought the recovery of medical expenses,
“involve[d] a ...