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.)

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 matter.is 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