1
Defendants FIP Associates, Ltd. and FIP II, Ltd. (“the FIP defendants”) joined in the motion to
dismiss of the Former Fluent Shareholders. (Document No. 15). ProtoComm responded to the joinder with no
objection. (Document No. 22). While the Court considered the motion as on behalf of the FIP defendants, for the
sake of simplicity, the Court will refer to the motion as the motion by the Former Fluent Shareholders only.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PROTOCOMM CORP.,
:
CIVIL ACTION
:
Plaintiff,
:
:
v.
:
:
NOVELL, INC. et al.,
:
:
Defendants.
:
NO. 98-3819
M E M O R A N D U M
Reed, S.J.
June 25, 1999
Before the Court is the motion to dismiss of defendants David L. Nelson, Cornelius A.
Ferris, Premkumar Uppaluru, Aeneas Venture Corporation, Edelson Technology Partners II, L.P.,
Olivetti Holding, N.V., Technologies for Information & Publishing, L.P., ASCII Corporation,
Cirrus Logic, Inc. and Intel Corporation (collectively referred to as the “Former Fluent
Shareholders”).1 Based on the following, the motion will be denied.
I. BACKGROUND
This case is the third generation lawsuit springing from a breach of contract dispute
between plaintiff ProtoComm Corporation (“ProtoComm”) and Fluent, Inc., now Novell
Advanced Services (“Fluent”). In January of 1993, ProtoComm filed a lawsuit against Fluent
alleging a breach of an agreement to develop a video server software. (“ProtoComm I”). On July
2
24, 1996, a jury returned a verdict in ProtoComm I in favor of ProtoComm and against Fluent for
$12.5 million. The verdict was affirmed by the Court of Appeals for the Third Circuit on
October 29, 1997.
The details of ProtoComm I and the lawsuit that followed, ProtoComm II, have been
extensively reported by this Court and will not be repeated here. The following facts are
pertinent to the resolution of the pending motions and are gleaned from the allegations of the
complaint in this litigation, ProtoComm III.
ProtoComm alleges that while litigation in ProtoComm I was pe