Arthrex, Inc. v. Parcus Medical, LLC

Filing 52

OPINION AND ORDER granting 18 Motion to dismiss. Count V of the Counterclaim is dismissed without prejudice. Parcus may amend Count V of its Counterclaim within twenty-one days of the entry of this Opinion and Order. Signed by Judge John E. Steele on 7/23/2012. (SVC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARTHREX INC.,
Plaintiff,
vs.

Case No.

2:11-cv-694-FtM-29SPC

PARCUS MEDICAL, LLC,
Defendant.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Arthrex Inc.’s (Arthrex
or plaintiff) Motion to Dismiss Count V of Parcus Medical, LLC’s
(Parcus or defendant) Counterclaim (Doc. #18) filed on February 27,
2012.

Parcus Medical, LLC filed a response on March 15, 2012.

(Doc. #29.)

Arthrex filed a reply in support of its motion on

April 2, 2012.

(Doc. #34.)

For the reasons set forth below, the

motion is granted and Count V of the counterclaim is dismissed with
leave to amend.
The Complaint alleges that on November 30, 1999, the United
States Patent and Trademark Office issued United States Patent No.
5,993,451 (the ‘451 patent) entitled “Cannulated Suture Anchor
Drill Guide.”
inventor.

The ‘451 patent names Stephen S. Burkhart as an

On November

4, 2003,

the

United

States

Patent

and

Trademark Office issued United States Patent No. 6,641,597 (the
‘597 patent) entitled “Interference Fit Knotless Suture Anchor
Fixation.”

The ‘597 patent names Stephene S. Burkhart, R. Donald

Grafton, and Peter J. Dreyfuss as inventors.

Arthrex asserts that

it is the owner by assignment of all right, title, and interest
under both the ‘451 and ‘597 patents.

Counts I and II of the

Complaint asserts that Parcus has infringed on patents ‘451 and
‘597

by

making,

using,

selling,

offering

for

sale,

and/or

importing suture anchor instrumentation for use during arthroscopic
surgeries, including but not limited to Parcus’s V-Mouth Drill
Guide (Part No. 10330), 8-Point Drill Guide (Part No. 10446),
Series 3 Suture Anchors (Parts Nos. 10323T and 10313) and V-LoX
Hybrid Suture Anchors (Part No. 10354T).
On February 6, 2012, Parcus filed its Answer, Affirmative
Defenses, and a five-count Counterclaim.

(Doc. #13.)

Therein,

Parcus seeks declaratory judgment that neither the ‘451 or the ‘597
patents are valid (Counts II and IV) and that it did not infringe
on the ‘451 or the ‘597 patents (Counts I and III).

Count V

asserts that Arthrex has engaged in unlawful anti-competitive
practices by engaging in the following: (a) sham litigation1; (b)
litigation

as

a

weapon

of

economic

destruction;

(c)

trade

disparagement; (d) violation of the Federal Anti-Kickback Statute,

1

Parcus alleges that a separate case between Arthrex and
Parcus, 2:10-cv-151-FtM-36DNF, also pending before this Court, is
a sham litigation. That matter was filed by Arthrex and asserts
misappropriation of trade secrets, tortious interference with
contracts/business relationships, violations of the Florida
Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204, and
injunctive relief.
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42 U.S.C. § 1320A-7B; (e) threats, intimidation, and extortion; and
(f) illegal enforcement of perpetual non-competes.
On February 27, 2012, Arthrex filed the instant motion seeking
to dismiss Count V of the Counterclaim pursuant to Fed R. Civ. P.
12(b)(6) for failure to state a claim upon which relief may be
granted.

Specifically, Arthrex contends that Count V fails to

plead the prima facie elements of the various alleged illegal
actions that comprise his unlawful anti-competitive practices claim
and otherwise includes inflammatory statements that are intended to
bias and/or mislead the Court and prevent settlement.

It further

contends that defendant cannot assert a claim under the AntiKickback Statute because it does not provide for a private cause of
action.

In response, Parcus contends that Count V only asserts a

claim pursuant to the Florida Deceptive and Unfair Trade Practices
Act, Fla. Stat. § 501.204 (FDUTPA).

Parcus contends that the

references to other potential causes of action are simply the
factual basis for the underlying FDUTPA claim and therefore the
prima facie elements of those claims need not be pled.
To survive dismissal under Rule 12(b)(6), a complaint must
first satisfy the pleading requirements of Rule 8(a)(2).
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell

“A pleading

that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
relief . . . .”

Fed. R. Civ. P. 8(a)(2).

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The purpose of this

requirement is to supply the defendant with fair notice as to the
nature of the claim and the grounds upon which the claim rests.
Twombly, 550 U.S. at 552.
The Court finds that Count V of the Counterclaim fails to meet
the notice requirements of Rule 8.

It is entirely unclear from the

body of Count V that Parcus simply intended to bring a claim
pursuant to FDUTPA.

Count V is over nine (9) pages in length and

makes its first, of just three references to Fla Stat. § 501.2042
on the very last page of the count.

Parcus’s three references to

Fla. Stat. § 501.204 suggest that this is one of several claims
related to unfair competitive practices asserted by Parcus instead
of the only claim set forth by Parcus.

Indeed, the heading of the

Count simply states “Unlawful Anti-Competitive Practices” which
does not necessarily suggest a claim limited to FDUTPA.

The body

of the Count further suggests that a myriad of claims are being
asserted.

Although the response indicates that Parcus only sought

to assert a claim pursuant to FDUTPA, Arthrex should not have to
rely on the response to determine which precise claims it must
defend itself against.

Therefore, the Court will dismiss Count V

with leave to amend to provide Parcus with the opportunity to
clearly set forth the FDUTPA claim and the factual basis that
supports the claim.
Accordingly, it is now

2

The Counterclaim never refers to the statute by name.
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ORDERED:
1.

Arthrex’s Motion to Dismiss Count V of Parcus Medical’s

Counterclaim (Doc. #18) is GRANTED and Count V of the Counterclaim
is dismissed without prejudice.
2.

Parcus may amend Count V of its Counterclaim within

twenty-one (21) days of the entry of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2012.

Copies:
Counsel of record

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23rd

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