Imprimis Pharmaceuticals, Inc. v. Ocular Science, Inc. et al
ORDER Granting Leave to Dismiss Counterclaims. Ocular Science's 31 Motion to Dismiss its claims is granted. Ocular Science should promptly file an amended answer, omitting the second and third counterclaims. Because Ocular Science's two counterclaims are being dismissed and will not be raised in future litigation, the 34 Motion for Partial Summary Judgment is denied as moot. The hearing on these two motions scheduled for 5/30/2017 is vacated. Signed by Judge Larry Alan Burns on 5/25/2017. (lrf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IMPRIMIS PHARMACEUTICALS, INC.,
CASE NO. 16cv296 LAB (WVG)
ORDER GRANTING LEAVE TO
OCULAR SCIENCE, INC.,
Defendant and counterclaimant Ocular Science, Inc. on April 6 filed a motion either
to dismiss its second and third counterclaims, or for leave to amend its answer to omit those
two counterclaims. Because Imprimis had already filed an answer to the counterclaims,
Ocular Science could not voluntarily dismiss. The next day, Plaintiff Imprimis
Pharmaceuticals, Inc. filed a motion for partial summary judgment as to those two claims.
The hearing on both motions is Tuesday, May 30, 2017. Neither motion is opposed.
Imprimis’ motion for partial summary judgment suggests that the reason Imprimis did
not consent to dismissal is because it wanted the claims dismissed with prejudice, and
because it wanted the right to seek an award of fees. Ocular Science, however, concedes
the two counterclaims are compulsory. That means the effect of Ocular Science’s dismissal
of the two claims, even though without prejudice, will be that Ocular Science cannot raise
these same claims in any later action. See Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320
(9th Cir.1992).1 And Imprimis has not identified any statute or other provision that would
entitle it to a fee award.
Because Ocular Science has made clear that it does not intend to pursue its second
and third counterclaims, and because Imprimis agrees they should be dismissed, Ocular
Science’s motion to dismiss its claims is GRANTED. Ocular Science should promptly file an
amended answer, omitting the second and third counterclaims.
Science’s two counterclaims are being dismissed and will not be raised in future litigation, the
motion for partial summary judgment is DENIED AS MOOT.
The hearing on these two motions is VACATED.
IT IS SO ORDERED.
DATED: May 25, 2017
HONORABLE LARRY ALAN BURNS
United States District Judge
Ocular Science’s brief suggests the possibility that it might pursue them in some
other proceeding, if Imprimis’ allegedly anticompetitive behavior continues or escalates.
Claims that have not yet accrued are obviously not being dismissed, so claims arising out
of Imprimis’ future behavior would not be precluded in future actions. But by representing
that the two counterclaims were compulsory, and by not opposing the motion for partial
summary judgment, Ocular Science consented to dismissal of these two counterclaims, see
Civil Local Rule 7.1(f)(3)(c), and in effect has abandoned them.
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