First Med Representatives v. Futura Medical

• Decision Date: 18 March 2002
• Docket Number: No. 01-73989.,01-73989.
• Citation: 195 F.Supp.2d 917
• Parties: FIRST MED REPRESENTATIVES, LLC, Plaintiff, v. FUTURA MEDICAL CORP., Bionic Medizintechnik GmbH, Harold Callicoat, Ralf Jungmann, and Mac Jones, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

195 F.Supp.2d 917

FIRST MED REPRESENTATIVES, LLC, Plaintiff, v. FUTURA MEDICAL CORP., Bionic Medizintechnik GmbH, Harold Callicoat, Ralf Jungmann, and Mac Jones, Defendants.

No. 01-73989.

United States District Court, E.D. Michigan, Southern Division.

March 18, 2002.

COPYRIGHT MATERIAL OMITTED

Steven C. Powell, Carson & Powell, Birmingham, MI, for Plaintiff.

David A. Breuch, Clark Hill, Detroit, MI, for Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS COUNT I

BORMAN, District Judge.

Before the Court is Defendants' motion to dismiss Count I (the antitrust claim) pursuant to Fed.R.Civ.P. 12(b)(6) (Docket Entry # 3). The Court heard oral argument on this motion on January 23, 2002. Upon consideration of the motion, the submissions of the parties, and the applicable law, the Court will DENY the motion.

I. BACKGROUND

This is a commercial dispute involving the distribution chain for a certain medical supply: injection caps. Injection caps are "used in hospitals, often in conjunction with an intravenous procedure ("IV"), in order to safely allow the rapid infusion of certain drugs into an IV system hooked up to a patient." (Pl.'s Resp. at 2.) The market distribution chain at issue in this particular case is a multi-tiered distribution structure (i.e., one manufacturer, one purchaser, but multiple distributors in-between).

J. Sollner¹ is a European manufacturer of "certain yellow, packaged sterile latex-free injection caps." (Pl.'s Resp. at 2.) Defendant Bionic Medizintechnik GmbH ("Bionic") is a first level distributor located in Germany. Bionic distributes J. Sollner's injections caps to other distributors (some in North America, some elsewhere). Doris Wittel GmbH ("Wittel") is also a German distributor, and acted as Bionic's agent in the facilitation of sales to a United States distributor, Medical Profiles Inc. ("MPI"), prior to August of 2000.² Prior to that date, MPI sold the injection caps to user customers including Fresenius Medical Care, N.A. ("Fresenius").³ Thereafter, Defendant Futura Medical Corp. ("Futura"), which apparently took over MPI in the fall of 2000,⁴ became the distributor responsible for selling to, inter alia, Fresenius.

First Med Representatives ("First Med"), the Plaintiff in this case, has as two of its principals, John Ferszt and George Goll, who had developed a relationship with Fresenius when employed by MPI (now Futura), prior to their forming First Med. (See Letter from Jungmann to Callicoat, Exh. B to Amended Compl.), "John Firezt[sic]/George Goll managed to make use of their long term relationship to FMC [Fresenius] and the supply contract was rewarded to them."; Letter from Jungmann to Ferszt, Exh. F to Amended Compl., "... although we value your and George's efforts as former MPI executives very much .... We thank you and George very much for the given support as MPI executives during the last years."; see also Complaint, Futura Med. Corp. v. Ferszt, Case No. 01-72338 (E.D. Mich., June 22, 2001) (Hood, J.) (current post-employment dispute alleging, inter alia, breach of confidentiality agreement by Ferszt, using Futura's proprietary information in attempting to steal Fresenius as a customer).

In March of 2001, Ferszt and Goll formed First Med. In approximately March and April of 2001, Bionic allegedly represented that it would agree to sell injection caps to First Med either directly and/or through Wittel. (Amended Compl. ¶¶ 15-18.) On April 27, 2001, Fresenius executed a "Purchase Agreement" with First Med, (see Exh. A. to Amended Compl.), whereby Fresenius agreed to purchase its three-year requirements of injection caps from First Med, beginning August 1, 2001.

On May 20, 2001, a meeting allegedly occurred, in Michigan, between agents/representatives of Bionic, Wittel, and First Med. At that meeting, Plaintiff alleges that the Bionic Defendants agreed to sell the injection caps to First Med (directly, or through Wittel) for the purpose of the resale to Fresenius if First Med could obtain the business. (Amended Compl. ¶¶ 22-25.) The following day, on May 21, 2001, Fresenius (1) issued an initial purchase order with First Med for approximately 5000 boxes of injection caps,⁵ and (2) issued a 90-day cancellation notice to Futura, as required by their contract.

Between May 21st and the end of May, 2001, a "flurry" of activity occurred between Bionic, Futura, Wittel, Fresenius, and First Med. Exhibits B—F, attached to Plaintiff's Amended Complaint, are letters written by Jungmann at Bionic, to Futura, First Med, etc., evidencing (in addition to the content of the letters themselves) several meetings/telephone conferences between representatives of all four companies discussing the distribution of the injection caps. The ultimate result was the termination of First Med as a distributor of the injection caps manufactured by J. Sollner. This result was reached when Bionic issued a letter of "Authorized Exclusive Distributor[ship]" (for sale of the injection caps in the United States and Canada) to Futura, as the "single authorized supply channel for Bionic Injection caps to FMC North America [Fresenius]." (See Letter from Jungmann to Callicoat, May 30, 2001, attached as Exh. D to Amended Compl.)⁶

There are aspects of some of the letters which support Plaintiff's allegation that Bionic and Futura were engaged in anti-competitive behavior. There is one particular statement in the May 31, 2001 letter from Jungmann to First Med, informing them of the exclusive authorized distributorship:

In order to avoid a competitive situation on the customer side, which would definitely lead to a negative impact for Bionic's business in the United States, a decision had to be made for an Exclusive Authorization Distributor.

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In order to avoid negative impact on our long term indirect customer, FMC [Fresenius], we would like to ask you to cancel the obviously existing contract with FMC [Fresenius] ....

(Exh. F to Amended Compl., at 1-2, emphasis added.)

Plaintiff also alleges that Defendants conspired to interfere with First Med's ability to supply Fresenius with injection caps from other manufacturers. (Amended Compl. ¶¶ 67-68.)

On October 19, 2001, Plaintiff filed its original complaint. The complaint names as defendants: Bionic Medizintechnik GmbH, and Ralf Jungmann ["Bionic Defendants"], and Futura Medical Corp., Harold Callicoat, & Mac Jones ["Futura Defendants"].

In lieu of answering the complaint, the Futura Defendants filed the instant motion to dismiss Count I on November 13, 2001. On December 14, 2001, Plaintiff filed a motion to amend its complaint. This Court granted that motion on January 14, 2002, as FED. R. CIV. P. 15(a) gives a plaintiff an absolute right to amend its complaint, once, before a responsive pleading is served, and the Sixth Circuit has held that a Rule 12(b)(6) motion is not a responsive pleading. See Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 420 (6th Cir.2000).

The Amended Complaint sets forth the following causes of action:

Count I — Federal and State Antitrust Violations (Sherman Act, 15 U.S.C. § 1, and MICH. COMP. LAWS ANN. § 445.771 et seq.); against all Defendants

Count II — Intentional Interference with Business Expectancy/Contract and/or Unfair Competition; against Futura Defendants (Futura, Callicoat, & Jones)

Count III — Fraudulent/Negligent/Intentional Misrepresentation; Breach of Contract; and/or Intentional Interference with Business Expectancy/Contract; against Bionic Defendants (Bionic & Jungmann).

Currently before the Court is Futura Defendants' motion to dismiss Count I (the antitrust violations, both federal and state).

II. ANALYSIS

A. Standard of Review

A Rule 12(b)(6) motion alleges that a complaint has failed to state claim upon which relief can be granted. In evaluating such a motion, the court construes the complaint in the light most favorable to the plaintiff, accepts all factual allegations in the complaint as true, and determines whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief. See FED. R. CIV. P. 12; Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998); see also Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987). The purpose of a 12(b)(6) motion is "to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). Accordingly, when reviewing a Rule 12(b)(6) motion to dismiss, the court only examines whether the pleadings state a claim for which relief may be granted, and does not review additional evidence. See Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997).

A recent Supreme Court decision has cautioned district courts to exercise restraint, in analogous circumstances, in ruling on a motion to dismiss:

... Federal Rule of Civil Procedure 8(a)(2) [] provides that a complaint must include only a short and plain statement of the claim showing that the pleader is entitled to relief.... This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.

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Given the Federal Rules' simplified standard for pleading, a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.

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Furthermore, Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits.

Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.

Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 998-99, 152 L.Ed.2d 1 (2002) (internal citations, alterations, and quotation marks omitted).

The Supreme Court has also cautioned that in antitrust cases, "dismissals prior to giving the...