Eli Lilly and Company v. PHTB LLC
Filing
63
ORDER: "Defendant PHTB, LLC's Motion to Dismiss the Amended Complaint and Incorporated Memorandum in Support" (Doc. 51) is denied. PHTB is directed to file an answer on or before February 12, 2025. See Order for details. Signed by Judge Thomas P. Barber on 1/29/2025. (ANL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELI LILLY AND COMPANY,
Plaintiff,
v.
Case No. 8:24-cv-1488-TPB-SPF
PHTB LLC, et al.,
Defendants.
__________________________________/
ORDER DENYING “DEFENDANT PHTB, LLC’S
MOTION TO DISMISS THE AMENDED COMPLAINT”
This matter is before the Court upon “Defendant PHTB, LLC’s Motion to
Dismiss the Amended Complaint and Incorporated Memorandum in Support,” filed by
counsel on November 18, 2024. (Doc. 51). On December 9, 2024, Plaintiff Eli Lilly and
Company filed a response in opposition. (Doc. 53). After reviewing the motion,
response, court file, and record, the Court finds as follows:
Background
Plaintiff Eli Lilly and Company is an American multinational pharmaceutical
company that sells its products all over the world. For over 150 years, it has
developed and delivered innovative medicines, including its proprietary Mounjaro and
Zepbound, which are indicated for serious conditions afflicting tens of millions of
Americans. To advance treatment of chronic conditions such as diabetes and obesity,
Eli Lilly developed a brand-new class of GLP-1 (glucagon-like peptide-1) and GIP
(glucose-dependent insulintropic polypeptide) dual-receptor antagonists, which
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includes tirzepatide, the active ingredient in Mounjaro and Zepbound. Mounjaro and
Zepbound are the only FDA-approved GLP-1/GIP medicines.
Defendant Precision Weight Loss Center, LLC (“PWLC”) (a Georgia limited
liability company) and Defendant PHTB LLC d/b/a Precision Health Tampa Bay
(“PHTB”) (a Florida limited liability company) sell competing “compounded” drug
products that purport to contain tirzepatide but are not FDA-approved.
Plaintiff alleges that Defendants have infringed on the use of its marks on
Defendants’ website and social media posts by advertising, promoting, and marketing
Defendants’ compounded drugs purporting to contain tirzepatide. For instance,
Plaintiff alleges that on the “Tirzepatide” subpage on the offending website,
Defendants repeatedly refer to Mounjaro, including a prominent statement that
“Tirzepatide’s brand name is Mounjaro, and we offer it at Precision Health.” Plaintiff
asserts that this advertisement (and others) uses Lilly marks to promote Defendants’
weight loss treatments and also falsely suggests that Defendants offer FDA-approved
and clinically tested medicines.
On June 20, 2024, Plaintiff filed the instant lawsuit against PHTB, asserting
claims for trademark infringement, false advertising, false designation of origin, and
deceptive and unfair trade practices. On October 4, 2024, Plaintiff filed an amended
complaint, adding PWLC as a defendant in addition to PHTB. PHTB has moved to
dismiss the claims against it, asserting that it is not a proper defendant in this case.
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short
and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R.
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Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual allegations,” it does
require “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).
In order to survive a motion to dismiss, factual allegations must be sufficient “to state
a claim to relief that is plausible on its face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D.
Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court
“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in
the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 41 U.S. 232,
236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal
sufficiency, and is not a procedure for resolving factual questions or addressing the
merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).
Analysis
In its motion to dismiss, PHTB argues that it is not a proper defendant in this
case because PHTB does not own or control the website
“precisionhealthandweightloss.com” or the social media handle
“@precisionweightlosscenter,” which Plaintiff claims published the alleged
misrepresentations. In fact, PHTB argues that the advertisements at issue predate its
corporate existence. 1
1 PHTB is a Florida limited liability company that was founded on February 4, 2024, by Tara
Hbrobowski-Blackman and Tamika Hrobowski-Houston.
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In the amended complaint, Plaintiff alleges that PHTB and PWLC, acting
jointly, engaged in acts constituting trademark infringement and false advertising. As
Judge Lazarra has pointed out, “a motion to dismiss should concern only the
complaint’s legal sufficiency” – it is not a procedure for resolving factual questions or
addressing the merits of a case. See Am. Int’l Specialty Lines Ins. Co., 2009 WL
10671157, at *2. A more developed factual record is necessary to ascertain what role,
if any, PHTB had in the advertisements at issue, and the nature of the relationship
between PHTB and PWLC. That being said, PHTB may certainly raise these and
other issues at the summary judgment stage of the proceedings. 2
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1. “Defendant PHTB, LLC’s Motion to Dismiss the Amended Complaint and
Incorporated Memorandum in Support” (Doc. 51) is DENIED.
2. PHTB is directed to file an answer on or before February 12, 2025.
DONE and ORDERED in Chambers, in Tampa, Florida, this 29th day of
January, 2025.
__________________________________________
TOM BARBER
UNITED STATES DISTRICT JUDGE
2 Because the Court has denied the motion to dismiss, PHTB is not entitled to attorney’s fees
at this time. However, should PHTB ultimately prevail on Plaintiff’s FDUTPA claim, PHTB
may seek attorney’s fees as the prevailing party. See § 501.2105(1), F.S.
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