Cytophil Inc v. Merz North America Inc et al

Filing 98

ORDER adopting the recommendation of the magistrate judge 90 and the 32 Motion to Dismiss pursuant to Rule 41(a)(1)(B) and 13(a) is denied. Signed by Senior Judge Malcolm J. Howard on 3/30/2017. (Foell, S.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION MERZ NORTH AMERICA, INC., Plaintiff, v. NO.: 5:15-CV-262-H-KS CYTOPHIL, INC. d/b/a REGENSCIENTIFIC, Defendant. CYTOPHIL, INC NO.: 5:16-CV-745-H-KS Plaintiff, v. MERZ NORTH AMERICA, INC., Defendant. ORDER This before the court on Merz North America, Inc.'s motion to dismiss Cytophil, Inc. v. Merz North America, Inc., No. 5: 16-CV-745-H-KS, pursuant to Rules 41 (a) (1) (B) Federal Civil Rules of Procedure [DE #32]. and 13 (a) Magistrate of the Judge Kimberly A. Swank filed a Memorandum and Recommendation ("M&R") on February 16, 2017, recommending that the motion be denied. Merz filed objections objections. to the M&R, and Cytophil responded to the This matter is ripe for adjudication. Under Rule 72(b) of the Federal Rules of Civil Procedure, a district judge "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72 (b) (3). Cytophil first objects to the M&R's conclusion that in order for the two-dismissal rule to apply against a party, must have dismissed two previous actions. the party Having reviewed the M&R, Cytophil's objections, and Merz's response thereto, the court finds Cytophil's objection is without merit. Merz' s objection fails to acknowledge or address the relevant case law. Next, Cytophil objects to the M&R's conclusion that the two dismissal rule requires both of the prior actions to have been dismissed by notice. M&R correctly dismissed, This objection is without merit because the concluded that two actions were not previously and it is irrelevant whether the dismissals were by notice. Finally, Cytophil objects, arguing that Rule 15 of the Federal Rules of Civil Procedure should be applied However, Rule 15 has no applicability here. I of two actions does not invoke Rule 15. 2 to this scenario. The mere consolidation A full and careful review of the M&R and other documents of record convinces the magistrate judge is, and should be court that the recommendation of the in all respects, in accordance with the law approved. Accordingly, the court recommendation of the magistrate judge as its own. adopts the For the reasons stated therein, the motion to dismiss pursuant to Rules 41 (a) (1) (B) and 13 (a) [DE #32] 7-.~ This-~--- is DENIED. . day of March 2017. Senior United States District Judge At Greenville, NC #26 3

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