McKesson Global Sourcing Limited v. M.C. Johnson Co., Inc.

Filing 79

OPINION & ORDER granting in part and denying in part 64 Motion to Dismiss; denying 78 Unopposed MOTION to Vacate 74 Order granting Plaintiff's Motion to Strike. See Opinion & Order for details. Signed by Judge John E. Steele on 7/29/2022. (AFC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MCKESSON GLOBAL SOURCING
LIMITED, an active foreign
private limited company,
Plaintiff,
v.

Case No:

2:21-cv-782-JES-NPM

M.C. JOHNSON CO., INC., a
Florida profit corporation,
dba PRIVATE LABEL MEDICAL,
and aka M.C. JOHNSON
COMPANY, INC.,
Defendant/ThirdParty Plaintiff,
v.
MCKESSON MEDICAL-SURGICAL,
INC.,
Third-Party
Defendant.

OPINION & ORDER
This matter comes before the Court on third-party defendant
McKesson Medical-Surgical Inc.’s (MMS) Motion to Dismiss First
Amended Third-Party Complaint and Motion to Strike (Doc. #64) filed
on May 12, 2022.

Defendant/third-party plaintiff M.C. Johnson

For the reasons set forth,

(MCJ) filed a Response (Doc. #76). 1

the motion is granted in part and denied in part.
I.
Plaintiff McKesson Global Sourcing Limited (McKesson) began
this action to recover $1,314,964 in alleged overpayments that
were transferred in error to MCJ. 2

Relevant to this Order is MCJ’s

Amended Third-Party Complaint (TPC) against MMS.

(Doc. #58.)

According to the TPC: Around June 1, 2017, MCJ and MMS entered
into a Product Distribution Agreement (Agreement) which set forth
terms upon which MMS would purchase, and MCJ would sell, products
manufactured for MMS.

(Id. ¶ 14; Doc. #58-1.)

Around April 1,

2020, MCJ and MMS entered into Amendment 1 (Amendment) to the
Agreement, which detailed MMS’ purchase of two hand sanitizer
products (Products A and B) from MCJ.
#58-2.)

(Doc. #58, ¶¶ 28-32; Doc.

Between April 14 and June 23, 2020, MCJ shipped Products

A and B pursuant to the Amendment.

(Doc. #58, ¶ 34.)

In May 2020, representatives of MCJ and MMS exchanged emails
related to MMS’ purchase of a third hand sanitizer product (Product
C) to be delivered between June and September 2020.

(Id. ¶¶ 35-

MCJ filed a redacted response on May 26, 2022. (Doc. #67.)
MCJ filed an unredacted response on July 8, 2022.
(Doc. #76.)
The Court cites to that version.
1

The Court detailed the allegations of McKesson Global’s
operative Second Amended Complaint (Doc. #39) when denying MCJ’s
motion to dismiss (Doc. #42).
2

2

36; Doc. #58-3.)

On May 13, 2020, MMS delivered purchase orders

to MCJ for 7 million bottles of Product C (the “Purchase Orders”).
(Id. ¶ 37.)

MCJ alleges that the parties intended, understood,

and agreed that the Purchase Orders for Product C were governed by
the Agreement and the Amendment.

(Doc. #58, ¶ 38.)

In early July 2020, MMS requested that MCJ modify the terms
of its open Purchase Orders.

(Id. ¶¶ 44.)

MCJ offered via email

to push production from September to December 2020, void certain
orders, and reduce the price per bottle of Product C.
Doc. #58-3.)

(Id. ¶ 46;

MMS agreed to MCJ’s proposal, and the parties

executed Modified Purchase Orders.

(Doc. #58, ¶¶ 47-48.)

Between July 3 and August 20, 2020, MCJ received four wire
transfers. 3

(Id. ¶ 50.)

MCJ believed the wire transfers were made

in connection to the Modified Purchase Orders.

(Id. ¶ 52.)

In August and September 2020, MMS requested to modify the
terms of the Modified Purchase Orders.

(Id. ¶ 53.)

MCJ offered

via email to push production to July 2021, void certain orders,
and reduce the price per bottle.
MCJ’s offer.

(Id. ¶ 55.)

(Id. ¶ 54.)

MMS did not accept

Instead, on September 25, 2020, MMS

revoked all outstanding Modified Purchase Orders via email.

(Id.

As discussed in the Court’s Order denying MCJ’s motion to
dismiss McKesson Global’s Second Amended Complaint, McKesson
Global asserts these are overpayments allegedly made in error by
McKesson Global (not MMS) to MCJ and related to McKesson Global’s
purchase of N95 masks.
3

3

¶ 56.)

MCJ ceased production.

(Id. ¶ 60.)

MCJ alleges that it

incurred certain lost profits and suffered “componentry costs”
(e.g., hand pump componentry, shippers, bottles, gelling agents,
labels, and raw materials) caused by MMS’ unilateral revocation of
the Modified Purchase Orders.

(Id.)

In the TPC, MCJ asserts three counts against MMS: (1) breach
of contract arising from the Agreement, the Amendment, and the
Modified Purchase Orders; (2) equitable setoff; and (3) equitable
subrogation.

MMS moves to dismiss all counts for failure to state

a claim.

(Doc. #64.)

contract

claim,

MMS also moves to strike portions of MCJ’s

specifically,

MCJ’s

requests

for

damages, componentry cost damages, and attorney fees.

lost

profit

(Id.)

II.
Under Federal Rule of Civil Procedure 8(a)(2), a complaint
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).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555; see also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires
“more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

4

accusation.”

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to the plaintiff, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), but “[l]egal conclusions without
adequate factual support are entitled to no assumption of truth,”
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted).

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

Factual allegations that are merely

defendant's

facially plausible.

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages
in a two-step approach: “When there are well-pleaded factual
allegations,

a

court

should

assume

their

veracity

and

then

determine whether they plausibly give rise to an entitlement to
relief.”

Iqbal, 556 U.S. at 679.

In considering a motion to dismiss under Rule 12(b)(6), a
court generally may not look to matters outside the pleadings.
Fed.

R.

Civ.

P.

12(d).

A

district

court

may

consider

the

allegations in the complaint, and documents attached as an exhibit
to the complaint. Fed. R. Civ. P. 10(c).

A district court may

also consider: a document not attached to the complaint, but which

5

is incorporated by reference in the complaint, Day v. Taylor, 400
F.3d 1272, 1276 (11th Cir. 2005); a document attached to a motion
to dismiss if (1) the document is central to the plaintiff’s claim,
and (2) its authenticity is not challenged, Day, 400 F.3d at 1276;
SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337
(11th Cir. 2010); and a judicially noticed fact, Bryant v. Avado
Brands, Inc., 187 F.3d 1271, 1278-81 (11th Cir. 1999); Lozman v.
City of Riviera Beach, Fla., 713 F.3d 1066, 1075 n.9 (11th Cir.
2013); U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811
(11th Cir. 2015).

Otherwise, consideration of extrinsic evidence

requires the Court to convert a motion to dismiss into a motion
for summary judgment.

Fed. R. Civ. P. 12(d).

Federal Rule of Civil Procedure 12(f) provides that a “court
may

strike

a

from

pleading

an

insufficient

defense

redundant, immaterial, impertinent or scandalous matter.”
Civ. P. 12(f).

or

any

Fed. R.

“An allegation is ‘impertinent’ or ‘immaterial’

when it is neither responsive nor relevant to the issues involved
in the action.”
MMH-JRK,

2021

“‘Scandalous’

Sprengle v. Smith Mar. Inc., No. 3:20-cv-1348WL

2003102

generally

at

*2

refers

(M.D.
to

Fla.
any

May

19,

allegation

2021).
that

unnecessarily reflects on the moral character of an individual or
states anything in repulsive language that detracts from the
dignity of the court.” Id. (citation omitted).
motion

to

strike

is

to

clean

6

up

the

“The purpose of a

pleadings,

streamline

litigation, and avoid unnecessary forays into immaterial matters.”
Hutchings v. Fed. Ins. Co., No. 6:08-cv-305-Orl-19KRS, 2008 WL
4186994, at *2 (M.D. Fla. Sept. 8, 2008).

“A motion to strike is

often denied unless the matter sought to be omitted has no possible
relationship

to

the

controversy,

otherwise prejudice a party.”

may

confuse

the

issues,

or

EmCyte Corp. v. XLMedica, Inc., No.

2:19-CV-769-JES-NPM, 2022 WL 394392, at *2 (M.D. Fla. Feb. 9, 2022)
(internal quotation omitted). “[W]hen deciding a motion to strike,
a court must accept the truthfulness of well-pleaded facts and
cannot consider matters beyond the pleadings.” Thompson v. Kindred
Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002)
(internal quotations omitted).
III.
A.

Shotgun Pleading

Although neither party raised this issue, the Court sua sponte
identifies the TPC as a shotgun pleading.

Weiland v. Palm Beach

Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 n.10 (11th Cir. 2015).
See also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955,
979 n.54 (11th Cir. 2008) (collecting cases).

“The most common

type [of shotgun pleading]—by a long shot—is a complaint containing
multiple counts where each count adopts the allegations of all
preceding counts, causing each successive count to carry all that
came before and the last count to be a combination of the entire
complaint.”

Weiland, 792 F.3d 1321.

7

In Counts II and III, MCJ “repeats and realleges the foregoing
paragraphs as if fully set forth herein.”

(Docs. #58, ¶¶ 84, 95.)

By realleging and reincorporating all prior paragraphs into each
claim, MCJ caused each successive count to carry all that came
before it and MCJ’s last count is a combination of the entire
The Court STRIKES “repeats and realleges the foregoing

complaint.

paragraphs” of paragraphs 84 and 95.

Paragraphs 84 and 95 are

amended as follows: “MCJ repeats and realleges paragraphs 14-76 as
if fully set forth herein.”
B.

Count I

MMS argues that Count I should be dismissed for failure to
state a claim.

Pursuant to the Agreement, both parties apply

Virginia law to this claim.

“The elements of a breach of contract

action are (1) a legally enforceable obligation of a defendant to
a plaintiff; (2) the defendant’s violation or breach of that
obligation; and (3) injury or damage to the plaintiff caused by
the breach of obligation.”

Navar, Inc. v. Fed. Bus. Council, 784

S.E.2d 296, 299 (Va. 2016) (quotation omitted).
1.

Failure to State a Claim

MMS first argues that MCJ fails to allege breach of the
Agreement and the Amendment because the Modified Purchase Orders,
which consider MMS’ purchase of Product C, are not governed by the
Agreement and the Amendment.

(Doc. #64, pp. 14-16.)

Viewing the

allegations in light most favorable to MCJ, MCJ alleges that the

8

parties

intended,

understood,

and

agreed

that

the

Modified

Purchase Orders were governed by the Agreement and the Amendment.
(Doc.

#58,

¶

38.)

MCJ

then

details

communications demonstrating as such.

the

parties’

written

(E.g., id. ¶¶ 38, 40, 49).

MCJ has sufficiently pled that the Agreement and the Amendment
govern the Modified Purchase Orders.

See, A.C. Furniture, Inc. v.

Arby’s Rest. Grp., Inc., No. 4:14-CV-00029, 2014 WL 4961055, at *4
(W.D. Va. Oct. 3, 2014) (denying motion to dismiss because emails
could constitute written agreement and conduct could evidence
meeting of minds).
MMS also argues that MCJ fails to state a breach of contract
claim because, pursuant to the Agreement, MMS was permitted to
terminate the Modified Purchase Orders for cause.
16-17.)

(Doc. #64, pp.

MMS cites Section 8.2.5 of the Agreement (Doc. #58-1),

which provides the following:
8.2. Termination by Buyer for Cause.
This
Agreement or any outstanding Purchase Order
may be terminated by Buyer for cause, upon
written notice by Buyer to Seller in the event
that:
8.2.5. Seller expresses, explicitly or
though its acts, before the expiration of
the Term that it will not or is unable to
perform
its
obligations
under
this
Agreement.
MMS then cites the September 25, 2020 email from MMS to MCJ
indicating that the remaining Modified Purchase Orders “will have
to be cancelled today.”

(Id., citing Doc. #58-5.)

9

MMS then picks

apart the language of the email and suggests that the email
conclusively

shows

that

MCJ

repudiated

the

Modified

Purchase

Orders first, so MMS could terminate the orders for cause. The
Court does not undertake such a weighted factual analysis on a
motion to dismiss.

And, viewing the allegations of the TPC and

the email in light most favorable to MCJ, the email does not
conclusively show that MCJ refused or was unable to perform first.
MMS last argues that MCJ fails to state a breach of contract
claim because the undisputed evidence shows that MCJ consented to
MMS’ termination of the Modified Purchase Orders.
18-20.)

(Doc. #64, pp.

In support, MMS attaches MCJ’s response to the September

25, 2020 email.

(Doc. #64-1.)

MCJ’s email response, which was

not a part of the TPC, raises an issue of fact on whether MCJ
consented to MMS’ revocation.
on a motion to dismiss.

The Court declines to consider it

MMS’ motion to dismiss Count I for failure

to state a claim is denied.
2.

Damages

MMS requests that the Court dismiss or strike MCJ’s claims
for lost profits and componentry costs arising from the breach of
contract.

(Doc. #64, p. 22.)

There is no dispute that, under the

contract, MCJ cannot recover consequential damages.
p. 10.)

(Doc. #64-1,

MCJ, however, argues that it may recover these damages as

direct damages.

(Doc. #76, p. 12.)

As explained by the Supreme Court of Virginia:

10

There are two broad categories of damages
which may arise from a breach of contract.
Direct damages are those which naturally or
ordinarily flow from the breach; consequential
damages arise from the intervention of special
circumstances not ordinarily predictable.
Consequential damages are compensable only if
it is determined as a matter of fact that the
special
circumstances
were
within
the
contemplation of the contracting parties at
the time of contracting. “Contemplation,” in
this context, includes both that which was
actually
foreseen
and
that
which
was
reasonably foreseeable. Danburg v. Keil, 235
Va. 71, 76, 365 S.E.2d 754, 757 (1988); Morris
v. Mosby, 227 Va. 517, 523, 317 S.E.2d 493,
497 (1984); Roanoke Hospital v. Doyle and
Russell, 215 Va. 796, 801 n. 4, 214 S.E.2d
155, 160 n. 4 (1975). Whether claimed damages
are direct or consequential is a question of
law for the trial court. Whether special
circumstances were within the contemplation of
the parties so as to justify the recovery of
consequential damages is a question of fact
for the jury. Roanoke Hospital, 215 Va. at
801, 214 S.E.2d at 160.
Richmond Med. Supply Co. v. Clifton, 369 S.E.2d 407, 409 (Va.
1988).
The

TPC

adequately

alleges

that

MCJ’s

lost

profits

and

componentry costs are a direct and natural result of MMS’ breach
(see, e.g., doc. #58, ¶ 60), so these allegations will not be
dismissed or stricken.

E.g., Precision Franchising LLC v. K-

Squared, Inc., No. 1:11-CV-00137 LMB, 2011 WL 4407936, at *5 (E.D.
Va.

Aug.

29,

2011),

report

and

recommendation

adopted,

No.

1:11CV137 LMB/IDD, 2011 WL 4407562 (E.D. Va. Sept. 21, 2011)
(quoting Manass–Owens Co. v. Owens & Son., 105 S.E. 543, 549 (Va.

11

1921)) (“Under Virginia law, a plaintiff seeking an award of lost
profit damages for breach of contract must allege that the damages
he seeks are the direct result of the breach and that they ‘can be
proved with reasonable certainty.’”); Interactive Return Serv.,
Inc. v. Virginia Polytechnic Inst., No. LE-3014-4, 2000 WL 489617,
52 Va. Cir. 161 (Cir. Ct. Va. 2000) (“The court holds that
plaintiff in this case must also be given the opportunity to prove
that

its

claim

for

lost

profits

is

not

speculative.

That

opportunity comes at trial, not in response to a motion for summary
judgment.”). 4
3.

Attorney Fees

MMS last requests that the Court strike MCJ’s request for
attorney fees in Count I because MCJ does not cite to a statutory
or contractual basis for attorney fees. (Doc. #64, pp. 17-18.)

In

response to the motion, MCJ argues that attorney fees may be
appropriate under 28 U.S.C. § 1927, Florida Statute § 57.105, or
Federal Rule of Civil Procedure 11.

See also Va. Code Ann. § 8.2-708 (a seller’s damages for a
buyer’s nonacceptance or repudiation of a contract for goods
includes incidental damages); Va. Code Ann. § 8.2-710 (“Incidental
damages to an aggrieved seller include any commercially reasonable
charges, expenses or commissions incurred in stopping delivery, in
the transportation, care and custody of goods after the buyer's
breach, in connection with return or resale of the goods or
otherwise resulting from the breach.”).
4

12

The Court finds no reason to strike the request for attorney
fees because it is not “redundant, immaterial, impertinent, or
scandalous

matter.”

E.g.,

Wright

v.

Dyck-O’Neal,

Inc.,

No.

215CV249FTM38MRM, 2016 WL 11423435, at *2 (M.D. Fla. Apr. 26, 2016)
(denying motion to strike attorney fees and costs); but see Reed
v. Walt Disney Parks, No. 620CV1346ORL40DCI, 2020 WL 10457843, at
*2 (M.D. Fla. Nov. 9, 2020) (collecting cases where demands for
attorney fees were stricken for failure “to articulate a statutory
or contractual basis for attorney fees”).

If MCJ prevails, it may

pursue a claim for attorney fees through an appropriate motion.
See Local Rule 7.01.
C.

Count II

In Count II, MCJ alleges that, if it is found liable to
McKesson Global under the Second Amended Complaint (Doc. #39), MCJ
is entitled to setoff any liability by those amounts owed to MCJ
by MMS.

(See Doc. #72, ¶¶ 85-94.)

MCJ alleges that it may setoff

such amounts because McKesson Global and MMS are interrelated
companies

“under

the

umbrella

and

in

the

name

of

McKesson

Corp[oration]” and “have common ownership, utilize common bank
accounts
functions,

and/or

bank

directors,

funds,

share

officers,

unified advertising and marketing.”

business

and/or

names,

employees,

business

and

enjoy

(Id. ¶¶ 91-92.)

The parties dispute whether Florida or Virginia law applies.
MMS argues that, under either law, MCJ fails to state an equitable

13

setoff claim because there is no mutuality of claims between the
parties.

The Court agrees.

“Setoff is the right that exists between two parties to pay
off their respective debts by way of mutual deduction.”

Wiand v.

Meeker, 572 F. App’x 689, 691 (11th Cir. 2014) (citing Everglade
Cypress Co. v. Tunnicliffe, 107 Fla. 675, 148 So. 192, 193 (1933)).
“Setoff is permitted only where there is mutuality of claims
between the parties.” Id. (citing Griffin v. Gulf Life Ins. Co.,
146 So.2d 901, 903 (Fla. 1st DCA 1962)). “Mutuality of claims
requires that the claims exist between the same parties acting in
the same capacities.”
at 193).

Id. (citing Everglade Cypress Co., 148 So.

See also Rust v. Elec. Workers Loc. No. 26 Pension Tr.

Fund, No. 3:10-CV-00029, 2011 WL 4565501, at *16 (W.D. Va. Sept.
29, 2011) (quoting Broaddus v. Gresham, 26 S.E.2d 33, 37 (Va.
1943)) (“In Virginia, ‘both at law and in equity, an essential
requisite [of setoff] is that the debts must be mutual, that is,
they must be owing between the same parties.’”).
The TPC fails to allege mutual claims.

MCJ’s setoff claim

against MMS is attempting to setoff McKesson Global’s demand for
the alleged overpayments against MCJ.

Stated differently, MCJ

demands money from MMS and McKesson Global demands money from MCJ.
But, MMS does not demand money from MCJ.
claims between the same parties.

There are no mutual

To be sure, the TPC alleges that

MMS and McKesson Global are both companies under the same parent

14

company, McKesson Corporation.

However, MCJ has cited no law –

nor has the Court found any – that generally allows a party who
allegedly injured one subsidiary company to pursue a setoff claim
against another subsidiary company. 5

Because the TPC fails to

allege mutuality of claims between MCJ and MMS, Count II is
dismissed for failure to state a claim.
D.

Count III

In Count III, MCJ asserts an equitable subrogation claim
against MMS.

MCJ asserts that “if MCJ is caused to pay damages to

McKesson Global,” that payment “will be involuntarily,” and MCJ
will be “an innocent stakeholder who has paid, in full, a debt
that it was not primarily responsible for, purely out of selfprotection.”

(Doc. #72, ¶ 96.)

The parties dispute whether Virginia or Florida law applies
to this claim.

It is unnecessary to decide which law applies

because, under either law, the claim is not ripe.

Ripeness is a

component of a district court’s subject matter jurisdiction which
“may (indeed must) be raised by the court sua sponte.”

Nat’l Parks

Conservation Ass’n v. U.S. Dep’t of Interior, 46 F. Supp. 3d 1254,
1266 (M.D. Fla. 2014) (citation omitted).

Generally, “[a] claim

For example, this type of setoff is generally prohibited in
bankruptcy cases.
See 9C Am. Jur. 2d Bankruptcy § 2703
(“Generally, a ‘triangular setoff’—as when A attempts to offset an
obligation owed to B against B’s debt to C—is prohibited because
there is no mutuality of debt between two parties.”)
5

15

is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur
at all.”

Texas v. United States, 523 U.S. 296, 300 (1998)

(internal quotation marks and citation omitted).
As alleged in the TPC, MCJ has not made any payment or
satisfied any claim on behalf of any other party.

See In re

Reasonover, 236 B.R. 219, 231 (Bankr. E.D. Va. 1999) (citing
Federal Land Bank of Baltimore v. Joynes, 18 S.E.2d 917, 920 (Va.
1942)) (“Subrogation is an equitable remedy which substitutes
another person or entity in the place of the creditor whose claim
was satisfied.”); Liberty Mut. Fire Ins. Co. v. Wal-Mart Stores
E., LP, 269 F. Supp. 3d 1254, 1263 (M.D. Fla. 2017) (quoting Nat’l
Union Fire Ins. Co. v. Se. Bank, N.A., 476 So.2d 766, 767 (Fla. 3d
DCA 1985)) (“A right to subrogation arises either when a judgment
is

entered

‘or

payment

has

been

made.’”)).

MCJ’s

equitable

subrogation claim is premised on a future event (MCJ paying damages
to McKesson Global), is not ripe for adjudication, and is dismissed
without prejudice.
Accordingly, it is so
ORDERED:
1.

Third-party defendant’s Motion to Dismiss First Amended
Third-Party Complaint and Motion to Strike (Doc. #64) is
GRANTED IN PART and DENIED IN PART.

16

2.

Count II of the Third-Party Complaint (Doc. #58) is
dismissed

without

prejudice

for

failure

to

state

a

claim. Count III is dismissed without prejudice for lack
of ripeness.
3.

Count I of Third-Party Complaint (Doc. #58) remains
pending.

4.

MCJ’s

Unopposed

Motion

to

Vacate

Order

granting

Plaintiff’s Motion to Strike (Doc. #78) is DENIED. 6
DONE and ORDERED at Fort Myers, Florida, this

29th

day of

July, 2022.

Copies:
Counsel of Record

McKesson Global previously moved to strike MCJ’s request
for attorney fees and affirmative defense of setoff in MCJ’s Answer
to the Second Amended Complaint.
(Doc. #69.)
MCJ failed to
respond to the motion, and the Court granted it as unopposed.
(Doc. #74.) MCJ moves to vacate that Order, arguing its failure
to respond was due to excusable neglect and there would be no
prejudice because the setoff issue was still “open for
adjudication.” The Court need not revisit its prior Order because,
as discussed above, MCJ has not alleged mutual claims for setoff.
6

17