# PARAGON ADVANCED TECHNOLOGIES, INC. v. ECKELS

> District Court, D. New Jersey · March 18, 2025

URL: https://www.frixlaw.com/law-library/cases/10826270

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PARAGON ADVANCED TECHNOLOGIES,
INC., et al.,

Plaintiffs,

v.

PATRICK ECKELS,
Civil Action No. 23-03238 (GC) (RLS)
Defendant. Civil Action No. 24-09840 (GC) (RLS)

PARAGON ADVANCED TECHNOLOGIES, MEMORANDUM OPINION
INC., et al.,

Plaintiffs,

v.

RESTOR3D, INC.,

Defendant.

CASTNER, District Judge
THIS MATTER1 comes before the Court upon Plaintiffs Paragon Advanced
Technologies, Inc. and Paragon 28, Inc.’s Motion to Dismiss Defendant Patrick Eckels’ Amended
Counterclaim to the First Amended Complaint (FAC) (ECF No. 123) pursuant to Federal Rule of
Civil Procedure (Rule) 12(b)(6). Eckels opposed (ECF No. 125), and Plaintiffs replied (ECF No.
126). The Court has carefully reviewed the parties’ submissions and decides the matter without

1 On March 5, 2025, the Court consolidated Civil Action No. 23-03238 and Civil Action No.
24-09840, designating Civil Action No. 23-03238 as the lead case. (ECF No. 127.)
oral argument pursuant to Rule 78(b) and Local Civil Rule 78.1(b). For the reasons set forth below,
and other good cause shown, Plaintiffs’ Motion is GRANTED.
I. BACKGROUND2
Plaintiffs develop and sell medical devices “in the foot and ankle segment of the orthopedic
implant marketplace,” which is a “highly competitive” industry. (ECF No. 84 ¶¶ 7, 27, 48.) Eckels

is a former employee of Additive, a company that Plaintiffs acquired in 2021. (Id. ¶¶ 1-3.) While
employed by Additive, Eckels is alleged to have entered into several agreements, including a
Release Agreement, which prohibited him from disclosing any documents or property he obtained
while employed by Additive. (Id. ¶¶ 1-3, 51-53.) Notwithstanding these agreements, Plaintiffs
allege that Eckels misappropriated proprietary trade secret information and gave it to a direct
competitor, restor3d. (Id. ¶¶ 4-16.)
On June 13, 2023, Plaintiffs filed a Complaint and Motion for a Temporary Restraining
Order (TRO), asserting misappropriation of trade secrets in violation of the Defend Trade Secrets
Act, 18 U.S.C. §§ 1832, 1836 (Count 1); misappropriation of trade secrets in violation of the New
Jersey Trade Secrets Act, N.J. Stat Ann. § 56:15-2 (Count 2); misappropriation of trade secrets in

violation of the New Jersey common law (Count 3); three counts of breach of contract (Counts 4
through 6); and conversion (Count 7).3 (ECF Nos. 1 & 3.) On July 12, 2023, the Court issued a
TRO against Eckels, ordering him to keep confidential, and prohibiting him from disseminating to
any person, any document or property obtained or received during the course of his employment

2 On a motion to dismiss under Rule 12(b)(6), the Court must accept all facts as true, but
courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted).
3 The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
with Additive.4 (ECF No. 35 at 2.5) Following the entry of the TRO, Eckels filed an Answer.
(ECF No. 46.)
On May 14, 2024, Plaintiffs sought leave to file the FAC, which the Court granted. (ECF
Nos. 77 & 83.) The FAC asserted the same seven causes of action and added the following
additional three causes of action: unjust enrichment (Count Eight); unfair competition (Count

Nine); and a violation of the New Jersey Computer Related Offenses Act (CROA), N.J. Stat Ann.
§ 2A:38A-3 (Count Ten). (ECF No. 84.) Eckels subsequently filed an answer to the FAC as well
as a counterclaim for malicious abuse of process. (ECF No. 96.) On August 30, 2024, Eckels filed
his Amended Answer to the FAC and Amended Counterclaim for malicious abuse of process.
(ECF No. 113.)
Eckels contends that Plaintiffs filed this action as an “ulterior motive to inflict professional
harm on [him] and his new employer,” restor3d, and that the lawsuit is baseless because “Eckels
never relied on [Plaintiffs’] confidential or trade secret information in performing his work for
restor3d.” (ECF No. 113 at 26 ¶¶ 3-4.) Eckels also asserts that Plaintiffs failed to “take even the

most basic steps to protect its alleged ‘confidential’ or ‘trade secret’ information against public
disclosure, much less those steps that would be expected to protect the wide-ranging scope of the
‘confidential’ or ‘trade secret’ information [Plaintiffs] accuse[] Eckels of misappropriating.” (Id.
at 29 ¶ 15.) This is so, Eckels argues, because Plaintiffs failed to provide necessary training to
employees regarding “confidential” or “trade secret” information, and publicly disclosed their

4 On August 21, 2023, the Court entered a Stipulated Preliminary Injunction Order, which
converted the TRO into a Preliminary Injunction that would remain in effect until further order of
the Court or dismissal of the case. (ECF No. 51.)
5 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the
Court’s e-filing system and not the internal pagination of the parties.
trade secrets by way of their patent applications, publications, conference presentations, on-line
tutorials, and other public disclosures. (Id. at 29-35 ¶¶ 15-30.)
Eckels also alleges that Plaintiffs’ actions are based on the following “ulterior motives”:
(1) “using this litigation as means of creating a financial windfall for . . . []the current Vice
President of Patient Specific sales at Paragon Advanced[] and . . . investors, while repairing his

damaged reputation following [Plaintiffs’] botched acquisition of [Additive]”6; (2) “sabotaging
Eckels’ and restor3d’s relationships with restor3d’s third-party distributors in order to harm
restor3d’s competitive position in the market”; (3) “seeking revenge against Eckels for obtaining
employment with restor3d after Eckels refused [Plaintiffs’] employment offers”; and (4) escalating
the cost of this litigation to “forc[e] . . . Eckels and/or restor3d to settle these actions on favorable
financial terms and divert attention from [Plaintiffs’] botched acquisition onto its allegations
against Eckels and restor3d.” (Id. at 36-39 ¶¶ 36-41.)
Eckels also asserts that Plaintiffs have taken the following “improper acts”: (1) deliberately
expanded the scope of alleged “trade secrets” disclosed; (2) sought broad discovery; (3) failed to

identify their alleged “trade secrets; (4) initiated this lawsuit to distract from Plaintiffs’ “botched
acquisition” of Additive and to “recoup the financial investment” of investors; and (5) inflicted
harm on Eckels. (Id. at 36-39 ¶¶ 15-44.) Eckels describes these improper acts as “highly
aggressive litigation tactics.” (ECF No. 125 at 22-26.)

6 Eckels alleges that once Plaintiffs acquired Additive, Plaintiffs “terminated [Additive’s]
entire sales force of independent sales distributors and sales representatives” and “shelved all of
[Additive’s] off-the-shelf products.” (ECF No. 113 at 37 ¶ 37.) Plaintiffs were then “left without
any sales force trained in the function and operation of the newly-acquired [Additive] products[.]”
(Id.) This allegedly led to a decrease in sales from “roughly $12 million a year (prior to the
acquisition) to less than $2 million a year (after the acquisition)” of Additive specific products.
(Id.)
II. STANDARD OF REVIEW
On a motion to dismiss for failure to state a claim upon which relief can be granted, courts
“accept the factual allegations in the complaint as true, draw all reasonable inferences in favor of
the plaintiff, and assess whether the complaint and the exhibits attached to it ‘contain enough facts
to state a claim to relief that is plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131,

140 (3d Cir. 2023) (quoting Watters v. Bd. of Sch. Dir. of City of Scranton, 975 F.3d 406, 412 (3d
Cir. 2020)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Clark v. Coupe, 55 F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau of
Prisons, 934 F.3d 368, 372 (3d Cir. 2019)). When assessing the factual allegations in a complaint,
courts “disregard legal conclusions and recitals of the elements of a cause of action that are
supported only by mere conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood Lab’ys
LLC v. Thanoo, 999 F.3d 892, 903 (3d Cir. 2021)). The defendant bringing a Rule 12(b)(6) motion
bears the burden of “showing that a complaint fails to state a claim.” In re Plavix Mktg., Sales
Pracs. & Prod. Liab. Litig. (No. II), 974 F.3d 228, 231 (3d Cir. 2020) (citing Davis v. Wells Fargo,

824 F.3d 333, 349 (3d Cir. 2016)).
III. DISCUSSION
“An action for malicious abuse of process ‘lies for the improper, unwarranted, and
perverted use of process after it has been issued . . . [i.e.], the employment of a process in a manner
not contemplated by law.’” Galbraith v. Lenape Reg’l High Sch. Dist., 964 F. Supp. 889, 897
(D.N.J. 1997) (alterations in original). “Bad motives or malicious intent leading to the institution
of a civil action are insufficient to support a cause of action for malicious abuse of process.” Id.
(quoting Fielder Agency v. Eldan Const. Corp., 377 A.2d 1220 (N.J. Super. Ct. Law. Div. 1977)).
To sustain their claim for malicious abuse of process, Eckels must establish two elements: “(1)
[an] ulterior motive; and (2) [a] ‘further act after the issuance of process representing the
perversion of the legitimate use of the process.’” Zebrowski v. Wells Fargo Bank, N.A., 657 F.
Supp. 2d 511, 517 (D.N.J. 2009) (quoting Tare v. Bank of Am., Civ. No. 07-583, 2009 WL 799236,
at *7 (D.N.J. Mar. 24, 2009)). “Further acts which lend themselves to an abuse of process include
attachment, execution, garnishment, sequestration proceedings, arrest of the person and criminal

prosecution and even such infrequent cases as the use of a subpoena for the collection of a debt.”
Microsoft Corp. v. Softicle.com, Civ. No. 16-2762, 2018 WL 10150945, at *2 n.1 (D.N.J. Apr. 30,
2018) (internal quotations omitted).
Plaintiffs contend that Eckels’ Amended Counterclaim fails for three reasons. First,
Plaintiffs argue that the Amended Counterclaim “improperly puts forth [Plaintiffs’] entire lawsuit
as the ‘process’ that [it] allegedly abused.” (ECF No. 123-1 at 18.) Second, Plaintiffs claim that
the Amended Counterclaim “fails to adequately plead specific facts that show any ulterior
purpose.” (Id.) Third, Plaintiffs argue that the Amended Counterclaim “does not allege any
‘further acts’ that constitute abuse of this Court’s process.” (Id.)

Eckels counters that he “does not ‘characterize the entire lawsuit’ as the ‘process’ which
has been abused,” but rather the Amended Counterclaim “clearly pleads that the process abused is
the summons that Plaintiffs served on him.” (ECF No. 125 at 18.) Regarding ulterior motives,
Eckels asserts that the Amended Counterclaim “outlines Plaintiffs’ ulterior motives in painstaking
detail.” (Id. at 19-21.) Finally, Eckels asserts that the Amended Counterclaim does allege “further
acts” because that “requirement is satisfied where a plaintiff pursues a claim without ‘any realistic
potential damages recovery.’” (Id. at 22 (quoting NVR, Inc. v. Davern, Civ. No. 15-5059, 2016
WL 7013459 (D.N.J. Nov. 30, 2016).) The Court finds that Eckels does not plausibly state a claim
for malicious abuse of process, so the Court will dismiss his Amended Counterclaim.
Here, Eckels has failed to allege improper “further acts” undertaken by Plaintiffs that give
rise to a malicious abuse of process claim. A party cannot state a claim for malicious abuse of
process where “there is no allegation . . . of any further act after or other than the filing of the
complaints and proceeding upon them.” Klesh v. Coddington, 684 A.2d 530, 536 (N.J. Super. Ct.
Law. Div.), aff’d and remanded, 684 A.2d 504 (N.J. Super. Ct. App. Div. 1996); Melillo v.

Elizabeth Bd. of Ed., Civ. No. 11-4887, 2012 WL 6725837, at *7 (D.N.J. Dec. 27, 2012) (“When
reviewing a malicious abuse of process claim, a court’s ‘focus must not be on what prompted the
suit but what action plaintiff engaged in after commencement of the action.’” (quoting Hoffman v.
Asseenontv.Com, Inc., 962 A.2d 532 (N.J. Super. Ct. App. Div. 2009))). Filing a complaint does
not, in and of itself, constitute a “further act.”7 See, e.g., Rutgers Cas. Ins. Co. v. Kennedy, 2009
WL 3170860, at *5 (N.J. Super. Ct. App. Div. Sept. 30, 2009) (“Filing the complaint for the
allegedly improper purpose of avoiding payment of a valid insurance claim does not satisfy the
‘further act’ requirement.” (citation omitted)). Thus, Eckels’ Amended Counterclaim for
malicious abuse of process fails because the actions Eckels challenges are instituting and

subsequently prosecuting an action. See, e.g., Klesh, 684 A.2d at 536; Read v. Profeta, Civ. No.

7 To the extent Eckels asserts that the filing of an amended complaint is an improper “further
act,” (see ECF No. 113 ¶¶ 52, 54; ECF No. 125 at 22-23) that argument similarly lacks merit. See
Swarovski Optik N. Am. Ltd. v. iBuy Grp. LLC, Civ. No. 23-01210, 2024 WL 4696614, at *2-3
(D.N.J. Nov. 6, 2024) (finding that the defendant’s allegation that the “[p]laintiff’s deliberate act
of amending its [c]omplaint to make false and material misrepresentations to the Court which it
knows not to be true” was insufficient to “state a claim for malicious abuse of process”); Hanover
3201 Realty, LLC v. Village Supermarkets, Inc., Civ. No. 14-1327, 2017 WL 3944285, at *1-2
(D.N.J. Sept. 7, 2017) (finding that the defendant’s counterclaim asserting that the “[p]laintiff
acted ‘in order to harass and oppress [c]ounterclaim [p]laintiffs, namely to force them to litigate
in an improper court system and to cause them to incur substantial expense defending claims and
allegations which [c]ounterclaim [d]efendants knew were objectively baseless,’” were conclusory
and did not give rise to a malicious abuse of process claim). Further, to the extent Eckels attempts
to support this argument by asserting that the FAC does not specify the misappropriated trade
secret information, this argument lacks merit given the extensive allegations discussed in the FAC.
(See ECF No. 84 ¶¶ 6-9, 29-39, 49, 57-58, 61, 64-68, 93, 107, 118.)
15-2637, 2017 WL 123438, at *6 (D.N.J. Jan. 11, 2017) (“[The plaintiff’s] assertion in his
complaint that [the defendant] stole his idea surely cannot constitute a ‘further act’ in furtherance
of an ulterior, improper purpose; that accusation is the very gist of [the plaintiff’s] legal claims; it
is a factual allegation of the injury for which he seeks damages. [The plaintiff’s] complaint is
designed to submit to a finder of fact the proposition that the defendants misappropriated [the

plaintiff’s] intellectual property.”).
Although Eckels tries to frame Plaintiffs’ “highly aggressive litigation tactics” as improper
“further acts,” Eckels provides no persuasive authority in support of that position.8 (ECF No. 125
at 22-26.) Eckels primarily relies on NVR, Inc. v. Davern, where the court found that the defendant

8 As part of his argument, Eckels asserts that Plaintiffs’ conduct during the discovery
process, such as serving subpoenas to two of restor3d’s distributors for “matters having nothing to
do with [Plaintiffs’] claims against . . . Eckels or restor3d,” satisfies the improper “further acts”
requirement. (ECF No. 113 ¶ 40; ECF No. 125 at 22-23.) But courts in this district have rejected
similar arguments related to alleged abuses of the discovery process when a litigant fails to allege
“an oppressive act performed to pervert the actual process itself” or has failed to plead more than
conclusory or speculative allegations. See, e.g., Avaya, Inc. v. Cisco Sys., Inc., Civ. No. 10-5881,
2012 WL 2065536, at *4-7 (D.N.J. June 7, 2012) (finding that the defendant failed to allege an
improper “further act” based on alleged inappropriate discovery requests because there was no
“allegations of an oppressive act performed to pervert the actual process itself” and because the
defendant failed to provide more than conclusory and speculative assertions); Partners of Mass.,
LLC v. Fantasia, Civ. No. 15-7960, 2019 WL 522107, at *5 (D.N.J. Feb. 11, 2019) (dismissing
malicious abuse of process claim because the defendant failed to plead support for assertions that
the plaintiff knew its claims were frivolous and that discovery was being undertaken for the sole
purpose of “harassment, prolonging the litigation, and running up [the defendant’s] legal fees);
Unitronics, Inc. v. Robotic Parking Sys. Inc., Civ. No. 09-3493, 2010 WL 2545169, at *6 (D.N.J.
June 18, 2010) (finding that the plaintiffs failed “to adequately state a valid claim for malicious
abuse of process” because the claim failed to “allege any acts subsequent to Defendants’ use of
the discovery process.”). Here, Eckels’ assertions regarding the use of the discovery process are
conclusory and speculative, and therefore are insufficient to support a malicious abuse of process
claim. See Avaya, 2012 WL 2065536, at *7 (noting that “to the extent Cisco contends that Avaya’s
act of using discovery information to unfairly compete with Cisco to further its ‘Attack Cisco’
campaign qualifies as a ‘further act’, those conclusory allegations are purely speculative and do
not conform to the Towmbly standard”); Burgess v. Bennet, Civ. No. 20-7103, 2021 WL 1050313,
at *8 (D.N.J. Mar. 19, 2021) (noting that “[a]s alleged, there is no indication that [the] [d]efendants,
regardless of their alleged nefarious intentions, were doing any more than utilizing the discovery
mechanisms for their proper purpose”).
stated an abuse of process counterclaim based on the plaintiff’s conduct in instituting and
prosecuting an action. 2016 WL 7013459. But that case is readily distinguishable. The plaintiff
there brought suit against the defendant for allegedly stealing documents containing proprietary
information. Id. at *1. The defendant asserted a counterclaim for malicious abuse of process on
the grounds that the defendant had already agreed to return the documents, essentially mooting the

case prior to the plaintiff bringing suit. Id. at *5. The court agreed that the complaint itself satisfied
the “process” requirement and that plaintiff’s conduct in “continu[ing] to litigate [the] case in a
manner inconsistent with any realistic potential damages recovery” satisfied the “further act”
requirement because discovery had revealed that the plaintiff had not lost any sales or employees
based on the defendant’s conduct. Id.
Unlike in NVR, there is no allegation that Plaintiffs already received the relief they now
seek (e.g., to enjoin Eckels from disclosing Plaintiffs’ proprietary information and monetary
damages for Eckels’ alleged conduct), and there is no indication that Plaintiffs have litigated this
case in a manner inconsistent with any potential damages recovery.9 Even if it is determined that

Plaintiffs’ claims are unmeritorious, that is insufficient to sustain a claim for malicious abuse of
process. See Brennan v. Lonegan, 2010 WL 5140448, at *2 (N.J. Super. Ct. App. Div. Dec. 20,
2010) (“To prevail in a malicious abuse of process claim, [the] plaintiff must show that the
defendant committed a further wrongful act beyond merely filing an unmeritorious complaint[.]”).

9 Eckels further argues that Plaintiffs have “relentlessly pursu[ed] this litigation despite the
fact that ‘discovery in this suit to-date has revealed that [Plaintiffs’] potential damages recovery is
highly limited’; for example, ‘[Plaintiffs] ha[ve] not identified a single lost sale or lost opportunity
as a result of Eckels’ alleged conduct.’” (ECF No. 125 at 23 (quoting ECF No. 113 ¶).) This
argument also lacks merit because it fails to recognize that Plaintiffs’ grounds for relief are not
limited to monetary damages for lost sales or opportunities. (See ECF No. 84 at 28-29 ¶¶ 84, 86-
87, 89; 44-45 ¶¶ 1-9.)
As another court in this district has observed, the NVR court “pushed malicious abuse of
process very close to the line of malicious use of process,” which is a separate tort that “may arise
from the filing of an unfounded complaint.” See Read, 2017 WL 123438, at *3 n.6, *5. Courts
have closely scrutinized malicious abuse of process claims—including in cases involving business
competitors—because of their potential chilling effect. See Izzo v. Twp. of Raritan, Civ. No. 15-

1262, 2017 WL 3816537, at *10 (D.N.J. Aug. 31, 2017) (“[T]he tort of malicious abuse of process
is ‘treated with great caution because of [its] capacity to chill resort to our courts by persons who
believe that they have a criminal complaint or civil claim against another.’” (citation omitted));
Read, 2017 WL 123438, at *6 (“There can be no rule that a party who sues a business competitor
has ipso facto committed a tort.”). Eckels’ Amended Counterclaim does not fall into the narrow
set of circumstances presented in NVR.10 The Court finds Defendants’ reliance on Tedards v. Auty,
557 A.2d 1030 (N.J. Super. Ct. App. Div. 1989) and Melillo, 2012 WL 6725837 equally
unpersuasive.11

10 Eckels’ Amended Counterclaim also does not fall within the categories of “further acts”
recognized by courts in this district. See Microsoft Corp., 2018 WL 10150945, at *2 n.1 (“Further
acts which lend themselves to an abuse of process include attachment, execution, garnishment,
sequestration proceedings, arrest of the person and criminal prosecution and even such infrequent
cases as the use of a subpoena for the collection of a debt.”).

11 The Court similarly finds that the Amended Counterclaim fails to sufficiently allege
“ulterior motive.” Eckels asserts that Plaintiffs’ ulterior motives for initiating and continuing to
litigate this action are motivated by Plaintiffs’ desire to recoup damages caused by the “botched”
acquisition of Additive, to inflict harm on Eckels’ professional career, and to intimidate or coerce
distributors associated with restor3d. (ECF No. 113 at 38-39 ¶¶ 36-41; ECF No. 125 at 19-21.)
Similar to Eckels’ assertions regarding the alleged improper “further acts,” his allegations
regarding Plaintiffs’ “ulterior motives” are conclusory and unsupported. Further, even if Eckels
could plead an “ulterior motive,” the Court has already determined that the alleged “further acts”
are not sufficient for purposes of pleading a malicious abuse of process claim, and therefore the
“ulterior motive” element would not be satisfied. See Zebrowski, 657 F. Supp. 2d at 517 (“If the
act is proper, however, the motive is immaterial.”).
IV. CONCLUSION
For the foregoing reasons, and other good cause shown, Plaintiffs’ Motion to Dismiss
Eckels’ Amended Counterclaim (ECF No. 123) is GRANTED. Eckels’ Amended Counterclaim
is DISMISSED without prejudice. An appropriate Order follows,
fpf
Dated: March {8 , 2025 / j cy trttée fo ae
C(t AI
GEQORGET#E CASTNER
AUNtrep FATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10826270. Public record. Not legal advice.