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Sanfilippo v. Brewerton

United States District Court, D. South Carolina, Charleston Division

November 20, 2017

Louis C. Sanfilippo, M.D., Plaintiff,
Timothy David Brewerton, M.D., Defendant.



         This 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.

         I. Background

         Plaintiff 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).

         Plaintiff 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.

         Plaintiff 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.)

         On 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.

         II. Legal Standard

         A. Report and Recommendation of the Magistrate Judge

         The 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).

         When a 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).

         B. Motion to Dismiss

         Rule 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.

         To 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 ...

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