Cytophil Inc v. Merz North America Inc et al

Filing 99

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
WESTERN DIVISION

MERZ NORTH AMERICA, INC.,
Plaintiff,
v.

NO.: 5:15-CV-262-H-KS

CYTOPHIL, INC. d/b/a
REGENSCIENTIFIC,
Defendant.
CYTOPHIL, INC
Plaintiff,
NO.: 5:16-CV-745-H-KS
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 12 (b) (1) and 12 (b) (6) of the

Federal

Civil

Rules

of

Procedure

[DE

#35].

Magistrate

Judge

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
Carolina law.

Merz

filed objections to the M&R,

responded to the objections.
Under Rule 72(b)

and Cytophil

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."

Fed. R.

Civ. P. 72 (b) (3).
First,

Merz

objects

that

Cytophil

has

failed

to

plead

relevant product market for purposes of the Sherman Act.
argue

that

the magistrate

judge misinterpreted E. I.

They

DuPont

Nemours & Co. v. Kolon Indus., 637 F.3d 435 (4th Cir. 2011).

a

de

They

also argue that the FDA's MIX code is not helpful in defining the
product markets here.
account

for

markets,

Further, they argue that Cytophil did not

substitutes

and

purposefully

that
to

outside

Cytophil

include

of

Cytophil's

inappropriately

only

Cytophil's

alleged product

defined

and

the

Merz's

market

products.

Cytophil responds in opposition, carefully detailing why each of
these arguments fails.
court finds
judge

Having considered this issue de novo, the

this objection to be without merit.

correctly

found

that

Cytophil

has

The magistrate

plausibly

alleged

a

relevant market.
Next, Merz objects that Cytophil has not plausibly alleged an
antitrust
allegations

injury.
of the

Merz's
complaint,

objection

ignores

calling them vague,
2

the

specific

among

other

things.

The

court

has

carefully

reviewed

the

allegations

antitrust injury, and like the M&R, finds them properly pled.

of

This

objection is without merit.
Finally,

Merz

objects,

arguing Cytophil has

not plausibly

alleged a competitive injury in its false marking claims.

Unlike

Merz's objections, this court finds the M&R correctly identifies
and applies

controlling precedent

"competitive
objection

injury"

under

inaccurately

35

U.S.C.

refers

conclusory, and lacking facts.

concerning the definition of

to

292.

§

the

Further,

complaint

as

Merz's
vague,

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

fails.
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.

in

Accordingly, the

court adopts the recommendation of the magistrate judge as its
own.

For

the

reasons

stated

pursuant to Rules 12 (b) (1)
PART and DENIED IN PART.

therein,

and 12 (b) (6)

the

motion

[DE #35]

to

dismiss

are GRANTED IN

Count V of Cytophil's complaint is hereby

dismissed without prejudice.

Cytophil has fourteen days from the
3

date of entry of this order to amend its pleading to reassert its
claim, if any, under North Carolina law.
This

]V~

of March 2017.

Senior United
At Greenville, NC
#26

4

Distr,ict Judge