P C I International Consultants Inc v. Flavor & Food Ingredients Inc et al

Filing 20

JUDGMENT granting 9 Motion to Dismiss for Failure to State a Claim; granting 9 Motion to Dismiss for Lack of Jurisdiction; granting 10 Motion to Dismiss for Failure to State a Claim. Signed by Judge Tucker L Melancon on 10/6/11. (crt,Brazell, G)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
PCI INTERNATIONAL CONSULTANTS,
INC

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CIVIL NO. 11-0762

VERSUS

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JUDGE MELANÇON

GLAVOR AND FOOD INGREDIENTS,
INC, ET AL

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MAGISTRATE JUDGE HILL

JUDGMENT
Defendants Activ International, Inc. and Flavor And Food Ingredients, Inc. d/b/a
Summit Hill Flavors (“FFI/SHF”) filed motions to dismiss this action for failure to state a
claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and for lack of
personal jurisdiction, pursuant to Rule 12(b)(2). R. 9; 10. The motions were referred to
United States Magistrate Judge C. Michael Hill for Report and Recommendation. The record
indicates that plaintiff, PCI International Consultants, Inc. filed no opposition to either
motion.
In his Report and Recommendation, the Magistrate Judge granted defendants’
motions, finding that PCI: (1) failed to state a claim against defendants under § 1 of the
Sherman Act and the Louisiana Antitrust Act, as the Complaint and record demonstrated that
defendants “are wholly owned subsidiaries of a single parent company, Vamara Holdings,
S.A., [R. 1, ¶ 7; 25; R. 8],” and could not conspire with one another as required under both
Acts; and (2) failed to satisfy its burden of proving that personal jurisdiction over defendants
exists. R. 15. The Magistrate Judge recommended that plaintiff’s claims under the Sherman

Act and the Louisiana Antitrust Act be dismissed with prejudice and plaintiff’s remaining
claims be dismissed without prejudice for lack of personal jurisdiction. Id.
Plaintiff filed an objection to the Report and Recommendation, conceding that the
Magistrate Judge’s findings were correct, but contending that the Court should dismiss
Activ’s federal and state antitrust claims without prejudice in light of an October 13, 2010
press release stating that “Activ International acquires NY-based Summit Hill Flavors” which
it attached to the objection. R. 17, Exh. 1.
Initially, the Court notes that plaintiff’s exhibit is outside of the pleading and was not
part of the record upon which the Magistrate Judge considered the motions to dismiss or
upon which the Report and Recommendation was based. Moreover, the Magistrate Judge
cited plaintiff’s Complaint alleging that “[t]he stock of ACTIV is owned by the same foreign
corporation that now owns the stock of FFI/SHF,” R. 1, ¶ 7; ¶ 25, as well as defendants’
Corporate Disclosure Statement filed on August 1, 2011, representing that “FFI/SHF and
ACTIV International, Inc. are wholly owned subsidiaries of Vamara Holding, S.A.,” R. 8.
Finally, plaintiff has provided nothing to support that the press release, which is more than
a year old, is true or would ultimately result in a different result from that in the Report and
Recommendation.
Accordingly, after an independent review of the record, including the objections filed
herein, this Court concludes that the Report and Recommendation of the Magistrate Judge
is correct and adopts the findings and conclusions therein as its own. It is therefore
ORDERED that the Motion to Dismiss for failure to state a claim and for lack of

personal jurisdiction filed by ACTIV International, Inc. [Rec. Doc. 9] and the Motion to
Dismiss for failure to state a claim filed by Flavor and Food Ingredients, Inc. d/b/a Summit
Hill Flavors [Rec. Doc. 10] are GRANTED, and plaintiff’s federal and state antitrust claims
asserted in Court II of the Complaint are DISMISSED WITH PREJUDICE, pursuant to
Rule 12(b)(6) and all of plaintiff’s remaining claims against ACTIV are DISMISSED
WITHOUT PREJUDICE, pursuant to Rule 12(b)(2).
Lafayette, Louisiana, this 6 th day of October, 2011.