OPINION AND ORDER Plaintiff Navidea Biopharmaceuticals, Inc. (“Navidea”), a pharmaceutical company, sued Michael Goldberg (“Goldberg”) for breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty. See Am. Compl., Dkt. 15. Goldberg answered the complaint and asserted counterclaims and third-party claims against Navidea and Third-Party Defendant Macrophage Therapeutics, Inc. (“Macrophage”), a subsidiary of Navidea, for breach of contract, wrongful discharge, injunctive relief, and quantum meruit. Dkt. 31. Goldberg moved to dismiss Plaintiff’s breach of fiduciary duty claim on the grounds that it is time-barred and fails to state a claim. Dkt. 32. Goldberg also seeks advancement of attorneys’ fees in connection with the fiduciary duty claim and Rule 11 sanctions against Plaintiff. Id. Navidea and Third-Party Defendant Macrophage moved to dismiss or strike certain of Goldberg’s counterclaims and third-party claims pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(f). Dkt. 40. Defendant Goldberg’s motion is GRANTED in part and DENIED in part. Plaintiff/Counterclaim Defendant Navidea and Third-Party Defendant Macrophage’s motion is GRANTED. BACKGROUND On August 14, 2018, Navidea, Macrophage, and Goldberg, the former CEO of Navidea and founder of Macrophage, entered into an agreement (the “August Agreement”) with the intent of entering into a further transaction (“the Transaction”) to “provide for the separation of Goldberg from Navidea and the establishment of the parties’ rights and obligations with respect to the ownership, management and continued operations of Macrophage.” Am. Compl., Dkt. 15 12. Specifically, and as relevant to the pending motions, the August Agreement provided for: (1) Goldberg’s resignation from Navidea, (2) the sale of 23.5 million shares of Navidea to Goldberg on the date of the consummation of the Transaction; (3) a six-month line of credit from Navidea to Macrophage of up to $750,000, (4) an issuance to Goldberg of Macrophage Super Voting Common Stock shares in a number equal to 5 percent of the outstanding shares, and (5) Goldberg’s waiver of all rights to collect any debt owed by Navidea to Goldberg. See August Agreement, Dkt. 31-1. Plaintiff alleges that the future-contemplated agreements have not been executed because Defendant “undertook certain actions which Navidea considered breaches of the August Agreement.” Am. Compl., Dkt. 15
14, 44-67. Notwithstanding the Plaintiff’s argument, the August Agreement expressly states that “any subsequent failure to execute the Transaction documents shall not render” the Agreement invalid. See August Agreement, Dkt. 31-1.1 a. Defendant’s Opening of the “Secret Account” On May 8, 2015, Navidea entered into a Term Loan Agreement with Capital Royalty Partners II (“CRG”) for a loan of up to $60,000,000. Am. Compl., Dkt. 15 69. Pursuant to the loan agreement, Navidea was required to provide CRG with the control agreements for all depository accounts controlled by either Navidea or Macrophage and to notify CRG of any changes to the deposit accounts. Id. 71. Failure to provide such notice or control agreements was an event of default under the CRG Loan Agreement. Id. On December 1, 2015, allegedly following a rift between Goldberg and other members of Navidea management, Goldberg opened a Wells Fargo account for Macrophage (the “Secret Account”). Id.
