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.
ยง
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
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