United States District Court, D. South Carolina, Charleston Division
Louis C. Sanfilippo, M.D., Plaintiff,
Timothy David Brewerton, M.D., Defendant.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE .
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that Defendant's
motion to dismiss be granted. For the reasons set forth
below, the Court adopts the Report and Recommendation.
alleges U.S. Patent 8, 318, 813 (the '"813
Patent"), which claimed a method for the treatment of
Binge Eating Disorder with the drug Vyvanse, was issued by
the United States Patent and Trademark Office
("USPTO") on November 27, 2012. Plaintiff alleges
that he is the patent's "lone inventor" and is
also the "exclusive and sole manager and member" of
the 813 Patent's last two owners, Lucerne Biosciences,
LLC (which owned the patent from January 8, 2015 to present)
and LCS Group, LLC (which owned the patent from April 15,
2008 to January 8, 2015).
alleges that on October 25, 2013, he signed a Confidentiality
Disclosure Agreement with Shire LLC relating to a potential
business opportunity involving the '813 Patent and
related patent applications. Plaintiff alleges that
thereafter, on May 9, 2014, Shire Development LLC, a
subsidiary of Shire LLC (hereinafter collectively referred to
as "Shire"), filed a petition for an inter partes
review ("IPR") of the '813 Patent. An IPR is a
trial proceeding conducted at the Patent Trial and Appeal
Board ("PTAB") to review the patentability of one
or more claims in a patent based on the prior art.
See 35 U.S.C. ch. 31.
alleges that Shire's IPR petition relied exclusively on
opinions set forth in a declaration by the Defendant, Dr.
Timothy Brewerton, which he signed on May 8, 2014. Plaintiff
alleges that the Defendant's declaration contained
"rampant . . . misleading statements and egregious
misrepresentations" while extensively omitting
"materially relevant and important information" in
order to conclude that all the claims of the '813 Patent
would have been "obvious" to a Person Having
Ordinary Skill In The Art as of September 13, 2007, and
should therefore all be invalid. (Dkt. No. 16 ¶ 11.)
Plaintiff further alleges Defendant's deception was
"so rampant, so unmitigated, so repeated and apparently
so premeditated in its exquisite detail that any reasonable
person would be led to conclude that unfettered deception was
[the Defendant's] fundamental and even exclusive
purpose." (Id. ¶ 14.)
January 20, 2017, Plaintiff, proceeding pro se,
filed the present action, asserting state-law claims for
fraud, defamation, and negligence and attaching over 1800
pages of supporting materials. Plaintiff alleges that the
Defendant's purported misrepresentations have caused him
damages in excess of $300, 000, 000. (Id. ¶
27.) Defendant has twice moved to dismiss, and on October 27,
2017, the Magistrate Judge recommended granting
Defendant's motion to dismiss. Plaintiff timely filed
objections to the Report and Recommendation.
Report and Recommendation of the Magistrate Judge
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to
introduce new evidence after the magistrate judge has acted
are disfavored, " though the district court may allow it
"when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses. . . . Our inquiry
then is limited to whether the allegations constitute 'a
short and plain statement of the claim showing that the
pleader is entitled to relief.'" Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (quotation marks and citation omitted). In a Rule
12(b)(6) motion, the Court is obligated to "assume the
truth of all facts alleged in the complaint and the existence
of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts., Inc.
v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in
a light most favorable to the non-moving party, it "need
not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." Bell Ail. Corp. v.
Twombly,550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal,556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the ...