Cytophil Inc v. Merz North America Inc et al
ORDER - The court adopts the recommendation of the magistrate judge as its own. For the reasons stated therein, the Motion to Dismiss pursuant to Rules 12 (b) (1) and 12 (b) (6) 35 are GRANTED IN PART and DENIED IN PART. Count V of Cytophil 9;s complaint is hereby dismissed without prejudice. Cytophil has 14 days from the date of this order to amend its pleading to reassert its claim, if any, under North Carolina Law. 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
MERZ NORTH AMERICA, INC.,
CYTOPHIL, INC. d/b/a
MERZ NORTH AMERICA, INC.,
This matter is before the court on Merz North America, Inc.'s
motion to dismiss Cytophil, Inc. v. Merz North America, Inc., No.
pursuant to Rules 12 (b) (1) and 12 (b) (6) of the
Kimberly A. Swank filed a Memorandum and Recommendation ("M&R") on
February 21, 2017, recommending that the motion be granted in part
and denied in part and that the court allow Cytophil fourteen days
to amends its pleading to reassert its claim in Count V under North
filed objections to the M&R,
responded to the objections.
Under Rule 72(b)
This matter is ripe for adjudication.
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."
Civ. P. 72 (b) (3).
relevant product market for purposes of the Sherman Act.
judge misinterpreted E. I.
Nemours & Co. v. Kolon Indus., 637 F.3d 435 (4th Cir. 2011).
also argue that the FDA's MIX code is not helpful in defining the
product markets here.
Further, they argue that Cytophil did not
Cytophil responds in opposition, carefully detailing why each of
these arguments fails.
Having considered this issue de novo, the
this objection to be without merit.
Next, Merz objects that Cytophil has not plausibly alleged an
calling them vague,
antitrust injury, and like the M&R, finds them properly pled.
objection is without merit.
arguing Cytophil has
alleged a competitive injury in its false marking claims.
Merz's objections, this court finds the M&R correctly identifies
conclusory, and lacking facts.
concerning the definition of
However, this court has reviewed
the complaint and finds Cytophil's pleading to be satisfactory at
this stage of the litigation.
Therefore, Merz's final objection
For the reasons stated in the response to the objections and
for the additional reasons stated above, the court finds no merit
to Merz's objections to the M&R.
A full and careful review of the
M&R and other documents of record convinces the court that the
recommendation of the magistrate judge is,
in all respects,
accordance with the law and should be approved.
court adopts the recommendation of the magistrate judge as its
pursuant to Rules 12 (b) (1)
PART and DENIED IN PART.
and 12 (b) (6)
are GRANTED IN
Count V of Cytophil's complaint is hereby
dismissed without prejudice.
Cytophil has fourteen days from the
date of entry of this order to amend its pleading to reassert its
claim, if any, under North Carolina law.
of March 2017.
At Greenville, NC
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