Ameritox, LTD. v. Millennium Laboratories, Inc.

Filing 89

ORDER denying without prejudice 76 Motion to strike; denying without prejudice 76 Motion to dismiss; granting 82 Motion to consolidate cases. Case number 8:12-cv-219-T-24-MAP is hereby consolidated with Case number 8:11-cv-775-T-24-TBM. Case number 8:11-cv-775-T-24-TBM will be the lead case number, and all further pleadings are to be filed therein. By April 9, 2012, Ameritox is directed to file one final amended complaint, which includes all counts and allegations it intends to raise in this matter. The Court will not permit further amendments without good cause. Signed by Judge Susan C Bucklew on 3/28/2012. (JMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMERITOX, LTD.,
Plaintiff,
v.

Lead Case No.: 8:11-cv-775-T-24-TBM
Consolidated Case No.: 8:12-cv-219-T-24-MAP

MILLENNIUM LABORATORIES, INC.,
Defendant.
__________________________________________/

ORDER
This cause comes before the Court on Plaintiff Ameritox, Ltd.’s (“Ameritox”) Motion to
Consolidate (Doc. No. 82). Defendant Millennium Laboratories, Inc. (“Millennium”) filed a
Response in Opposition (Doc. No. 87). For the following reasons, the Court grants Ameritox’s
Motion to Consolidate.
On April 8, 2011, Ameritox sued Millennium in this Court (“First Case”), alleging
violations of the Lanham Act, 15 U.S.C. § 1125(a) et seq., violations of Florida’s Deceptive and
Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq., and common law unfair competition, in
relation to Millennium’s urine drug testing and medication monitoring business. (Doc. No. 1 in
case 11-cv-775). Ameritox amended its complaint once. Millennium sought partial dismissal of
that amended complaint, and on January 6, 2012, the Court dismissed Counts I and IV of the
amended complaint without prejudice. (Doc. No. 62 in case 11-cv-775). Ameritox filed its
second amended complaint on January 23, 2012, and Millennium has moved to strike portions of
that second amended complaint and to dismiss Counts I and IV. (Doc. Nos. 66, 76 in case 11cv-775).

Meanwhile, on April 22, 2011 — two weeks after the First Case was filed — Ameritox
sued Millennium in the Southern District of California (“Second Case”), alleging violations of
the Lanham Act, 15 U.S.C. § 1125(a) et seq., a violation of California’s Unfair Competition
Law, and common law unfair competition, also in relation to Millennium’s urine drug testing
and medication monitoring business. (Doc. No. 1 in case 12-cv-219). Millennium moved for
change of venue to this Court on May 31, 2011 (Doc. No. 5 in case 12-cv-219), but Ameritox
opposed that motion (Doc. No. 9 in case 12-cv-219). Ameritox amended its complaint once, and
Millennium sought dismissal of that amended complaint on August 25, 2011. (Doc. No. 18 in
case 12-cv-219). On January 19, 2012, Ameritox withdrew its opposition to Millennium’s
motion to change venue. (Doc. No. 25 in case 12-cv-219). The Southern District of California
transferred the case to this Court on February 2, 2012, and denied Millennium’s motion to
dismiss without prejudice. (Doc. No. 26 in case 12-cv-219).
On March 7, 2012, Ameritox filed the instant motion to consolidate the First Case and
the Second Case. (Doc. No. 82 in case 11-cv-775). A number of other motions are currently
pending before the Court in these cases, including: Millennium’s Motion to Strike Portions of
Ameritox’s Second Amended Complaint and to Dismiss Counts I and IV of the Second
Amended Complaint in the First Case (Doc. No. 76 in case 11-cv-775); Millennium’s Renewed
Motion to Dismiss in the Second Case (Doc. No. 36 in case 12-cv-219); and Ameritox’s Motion
for Leave to Amend in the Second Case (Doc. No. 39 in case 12-cv-219).
A court may consolidate actions before it if they “involve a common question of law or
fact.” Fed. R. Civ. P. 42(a). “A district court’s decision under Rule 42(a) is purely
discretionary.” Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985)

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(quoting In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1013 (5th Cir. 1977)).
Furthermore, the Eleventh Circuit has “encouraged trial judges to make good use of Rule 42(a)
. . . in order to expedite the trial and eliminate unnecessary repetition and confusion.” Id.
(internal quotation marks omitted).
The Court has reviewed the pleadings in both cases and has concluded that there is
significant factual and legal overlap. Consolidation will eliminate the risk of inconsistent
adjudication of common factual and legal issues, help eliminate unnecessary repetition, and
lessen the burden on available judicial resources. Accordingly, it is ORDERED AND
ADJUDGED that:
(1)

Ameritox’s Motion to Consolidate (Doc. No. 82 in case 11-cv-775) is
GRANTED.

(2)

Case number 8:12-cv-219-T-24-MAP is hereby consolidated with Case number
8:11-cv-775-T-24-TBM.

(3)

Case number 8:11-cv-775-T-24-TBM will be the lead case number, and all
further pleadings are to be filed therein.

(4)

The Clerk is directed to ADMINISTRATIVELY CLOSE case number 8:12-cv219-T-24-MAP.

(5)

The following pending motions are DENIED without prejudice:
•

Millennium’s Motion to Strike Portions of Ameritox’s Second Amended
Complaint and to Dismiss Counts I and IV of the Second Amended
Complaint (Doc. No. 76 in case 11-cv-775);

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•

Millennium’s Renewed Motion to Dismiss (Doc. No. 36 in case 12-cv219); and

•
(6)

Ameritox’s Motion for Leave to Amend (Doc. No. 39 in case 12-cv-219).

By April 9, 2012, Ameritox is directed to file one final amended complaint,
which includes all counts and allegations it intends to raise in this matter. The
Court will not permit further amendments without good cause.

(7)

Millennium’s response to Ameritox’s final amended complaint will be due 21
days after service.

DONE AND ORDERED at Tampa, Florida, this 28th day of March, 2012.

Copies to:
Counsel of Record

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