Merz North America, Inc. v. Viveve Medical Inc., et al.

Filing 52

ORDER denying 3 Motion for Temporary Restraining Order; denying as moot 25 Motion to Dismiss. Signed by Senior US District Judge W. Earl Britt on 7/12/2017. (Stouch, L.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:17-CV-00015-BR
MERZ NORTH AMERICA, INC.,

)
)
Plaintiff,
)
v.
)
)
VIVEVE MEDICAL, INC., VIVEVE, INC., )
SEAN SHAPIRO, and TRACY ANDORA, )
)
Defendants.
)

ORDER

This matter is before the court on plaintiff Merz North America, Inc.’s (“Merz”) motion
for a temporary restraining order (“TRO”). (DE # 3.) Also before the court is the motion to
dismiss filed by defendants Viveve Medical, Inc. (“Viveve Medical”), Viveve, Inc. (“Viveve”),
Sean Shapiro, and Tracy Andora (collectively “defendants”). (DE # 25.) The motions raised
have been fully briefed and are ripe for disposition.
I. FACTS
Merz and Viveve are competing purveyors of aesthetic devices and products. Ulthera,
Inc.,—the predecessor in interest to Merz—developed a skin lifting process named Ulthera®,
which uses ultrasound energy to lift and tighten skin naturally and without surgery. (Am.
Compl., DE # 36, ¶ 12.) Viveve is a wholly-owned subsidiary of Viveve Medical. (Id. ¶ 2.)
According to Merz, Viveve markets and sells devices and products that are similar to Ulthera® to
the same end users—plastic surgeons and dermatologists. (Id. ¶¶ 33-34.)
Shapiro and Andora were both employed in sales leadership positions by Ulthera, Inc.
(Id. ¶¶ 4, 6.) In June 2015, before taking sales leadership positions with Merz, Shapiro and
Andora both signed an Employee Nondisclosure and Nonsolicitation Agreement (“Agreement”)

as a condition of employment. (See id., Ex. A, DE # 36-1; Ex. B., DE # 36-2.) The Agreement
provided that Shapiro and Andora would not disclose Merz’s proprietary, confidential or trade
secret information. (See id., Ex. A., DE # 36-1, at 2; Ex. B, DE # 36-2, at 2.) By signing the
Agreement, Shapiro and Andora agreed that they would not solicit Merz’s employees or interfere
with its business relationships, including those with its customers for one year after the
termination of their employment with Merz. (See id., Ex. A., DE # 36-1, at 3; Ex. B, DE # 36-2,
at 3.)
After signing the Agreement, Shapiro was employed by Merz as an Area Sales Director
and then as National Sales Director for Merz’s Aesthetic Devices business unit from June 2015
until September 2016. (Am. Compl., DE # 36, ¶ 4.) Shapiro resigned from Merz in September
2016, when he began working for Viveve as its Vice President of Sales. (Id. ¶ 37.) After
Shapiro’s resignation, Andora, a Regional Sales Director who Shapiro had supervised, resigned
on 2 December 2016 to join Viveve in a sales leadership role. (Id. ¶¶ 6, 46.) Merz alleges that,
since their departures, Viveve, with Shapiro’s and Andora’s help, has solicited and hired at least
five other Merz sales and marketing employees. (Id. ¶ 48.) Merz claims that all of these
employees had valuable customer relationships and specialized skills in the aesthetics industry,
and all had signed similar contractual restrictions as Shapiro and Andora. (Id. ¶ 49.)
On 14 April 2017, Merz filed a complaint alleging breach of contract, and asserting
claims for misappropriation of confidential information and trade secrets, tortious interference
with contractual relationships with customers and former employees, and violation of the North
Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-1.1 et seq.
(DE # 1.) In connection with the complaint, Merz contemporaneously filed a motion for a TRO

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“against [d]efendants to stop their continued raiding of Merz’s salesforce in violation of the
agreements between [d]efendants Sean Shapiro and Tracy Andora and Merz.” (DE # 3, at 1.)
On 9 May 2017, defendants filed a motion to dismiss the complaint. (DE # 25.) Merz
filed a response in opposition to defendant’s motion to dismiss on 30 May 2017. (DE # 37.)
That same day, Merz also filed an amended complaint, in which it included additional allegations
regarding Viveve’s recruiting and hiring practices. (DE # 36.)
II. ANALYSIS
I. Motion for a TRO
Merz moves for entry of a temporary restraining order directing Shapiro and Andora to
comply with the Agreement and restraining Viveve and Viveve Medical from interfering with its
employee relationships and facilitating further breaches of the Agreement. Temporary
restraining orders are governed by Rule 65 of the Federal Rules of Civil Procedure, which
provides that a temporary restraining order shall not issue in the absence of “specific facts in an
affidavit or a verified complaint [which] clearly show that immediate and irreparable injury, loss,
or damage will result to the movant before the adverse party can be heard in opposition[.]” Fed.
R. Civ. P. 65(b)(1)(A). To obtain a temporary restraining order, a movant must establish the
following: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable
harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) that
an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
In support of its motion for a TRO, Merz relies upon the allegations in its original
complaint. (See Pl.’s Mem. Supp. Mot. for TRO, DE # 4, at 3 n.1 (“Merz hereby incorporates its
Complaint, attached as Exhibit 1.”).) Merz’s amended complaint, however, supersedes the

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previous complaint and any other document filed by Merz that purports to include the allegations
within. See Young v. City of Mount Ranier, 238 F.3d 567, 572-573 (4th Cir. 2001) (“The
general rule . . . is that an amended pleading supersedes the original pleading, rendering the
original pleading of no effect.”); Maloney v. Ryan, No. CV13-00314-PHX-RCB(BSB), 2013
WL 3282324, at * 2 (D. Ariz. June 28, 2013) (finding that plaintiff’s motion for a temporary
restraining order was mooted by the filing of the amended complaint, and noting plaintiff’s
original complaint could not form the basis for his pending TRO motion seeking relief solely
related to the original complaint). Therefore, the court finds that Merz’s motion for a TRO has
been rendered moot because it relates to claims stated in plaintiff’s original complaint, which no
longer serves any function in this case.
II. Motion to Dismiss
Defendants move to dismiss Merz’s complaint pursuant to Federal Rules of Civil
Procedure 12(b)(2) and (b)(7). (DE # 25.) As with Merz’s motion for a TRO, defendants’
motion to dismiss relates to Merz’s original complaint, which it has since amended. An
amended complaint generally supersedes the original complaint in its entirety. See Young, 238
F.3d at 573. Accordingly, defendants’ motion to dismiss the original complaint is now moot.
III. CONCLUSION
For the foregoing reasons, Merz’s motion for a temporary restraining order is DENIED as
moot. Defendants’ motion to dismiss the original complaint is also DENIED as moot.
This 12 July 2017.

__________________________________

W. Earl Britt
Senior U.S. District Judge

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