Ferring B.V. et al v. Allergan Inc. et al, No. 1:2012cv02650 - Document 88 (S.D.N.Y. 2014)

Court Description: OPINION re: 69 MOTION to Amend/Correct 1 Complaint, for leave to file Second Amended Complaint, filed by Ferring Pharmaceuticals Inc., Ferring B.V., Ferring International Center S.A. For the foregoing reasons, Plaintiffs' motion for leave to amend is denied in its entirety. It is so ordered. (Signed by Judge Robert W. Sweet on 3/7/2014) (ajs)

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UNI STATES DISTRICT COURT SOUTHERN STRICT OF NEW YORK ------------- ------ ---- -------X FERRING B.V., FERRING INTERNATIONAL CENTER S.A., AND FERRING PHARMACEUTICALS INC., Plaintiffs, -against 12 Civ. 2650 OPINION ALLERGAN, INC., ALLERGAN USA, INC., ALLERGAN SALES, LLC, SERENITY PHARMACEUTICALS CORPORATION, SERENITY PHARMACEUTICALS, LLC, REPRISE BIOPHARMACEUTICS, LLC, SEYMOUR H. FEIN, AND RONALD V. NARDI, Defendants. --------------- ------- ------ -----X A P PEA RAN C E S: Attorneys for Plaintiffs GIBBONS P.C. One Gateway Center Newa , NJ 07102 By: Mara E. Zazzali-Hogan William P. , Jr. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 901 New York Avenue, N.W. Washington, D.C. 20001-4413 James B. Monroe, Esq. Paul W. Browning, Esq. Adriana L. Burgy, Esq. Attorne for Defendants GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New rk, NY 1016 0193 By: Joseph Evall, Esq. GIBSON, DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, CA 92612 By: Jeffrey T. Thomas Jeffrey H. Reeves ZUCKERMAN SPAEDER LLP 1185 Avenue of the Americas New York, NY 10036 By: James Scottile, Esq. M. Cohen, Esq. Noah Solowiejczyk 1 Sweet, D.J. B.V., Ferring Internat Plaintiffs Ferring Pharmaceut S .A., or (collectively, "Ferring" "Plaintiffs") have moved presumably pursuant to Rule 14 (2) r leave to file the Se against Amended Compla defendants, All All Sales, LLC (col ceuti (col ls Inc. 1 Center ct ("SAC") , Inc., Allergan USA, Inc., ly "Allergan"), Serenity s Corporation, Seren Pharmaceuticals, LLC ly "Serenity"), Reprise Biopharmaceutics, LLC ("Reprise"); Seymour H. Fein ("Fein"), and Ronald V. Na ("Nardi") forth S"). (collectively, the "De For the reasons set motion is denied. low s action presents a di over the ownership of certain patents involving desmopressin, a synthetic hormone, used to treat sorders related to excess According to t Plaintiffs, Fein, Na Serenity and urine production. ise improperly obtained starting in 2003 certain duties According to the De advancing their cla and their companies patents at issue selling them to violated igation to which Alle was compliant. s, the Plaintiffs and this litigation 2 layed o r to impose -.---"----------~- risks and costs of drug development on lergan and then to obtain patent correction in their favor. The proceedings in the ion to date lend some credence to De ndants' position. Prior Proceedings & Facts Familiarity with t alleged in the prior proceedings and tial complaint s as led by Ferring on AprilS, 2012 is assumed and were set forth in the March 18, 2013 order (the "March 18 Order") grant The Pla Defendants' motion to dismiss. iffs' motion to recons r t March 18 Order was denied on August 5, 2013 (the "August 5 Order"). August 5 Order denied a request to amend as The violation of the March 18 Order, but "without prejudice to permit Ferring to move for leave to amend in compliance with the Marcy 18 Order." See at 10. Plaintiffs served their rst Amended Complaint (the "AC" or "previous Complaint") on August 21, 2013, and simultaneously served the instant motion leave to file a Second Amended Complaint (the "SAC") seeking to restore the 14 aims dismissed by the March 18 Order. 3 The instant motion was heard and marked fully submitted on October 23, 2013. The Applicable Standard The party opposing a motion to amend bears t burden of establishing that an amendment would be futile. See ______________~__~____~__~, 29 F.Supp.2d 134, 137 38 (E.D.N.Y. 1998) (c ing Harrison v. NBD Inc., 990 F.Supp. 179, 185 (E.D.N.Y. 1998)). While leave to amend should be " when justice so requires," scretion to ely give[n] strict courts "ha[ve] broad ide whether to grant leave to amend." v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000). is properly deni Leave to amend in cases of "undue delay, bad faith or dilatory motive on the part the movant, repeat failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by the amendment, rtue of the allowance of [or] futility of the amendment." of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) Davis, 371 U.S. 178, 182 (1962)). 4 Ruotolo v. Cit (quoting Foman v. "A proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss pursuant to Rule 12(b) (6)." Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 Transit Auth., (2d Cir. 2003) (citing Ricciuti v. N.Y.C. 941 F.2d 119, 123 (2d Cir. 1991)). Therefore, "[fJ or the purposes of evaluating futility, the 12 (b) (6) standard is applied: all well pleaded allegations are accepted as true, and all inferences are drawn in favor of the pleader." E*Trade Fin. Corp. v. Deutsche Bank AG, (S.D.N.Y. 2006) 1170, 1174 420 F.Supp.2d 273, 282 (citing Mills v. Polar Molecular Corp., 12 F.3d (2d Cir. 1993)). The Motion to Amend With Respect to all Counts is Denied as Futile Because the Claims Remain are Time-Barred or are Otherwise Deficient The claims asserted by Ferring in the proposed SAC are futile because the new allegations do not cure the time-barred nature of the claims or are otherwise deficient. The entirety of the amended claims asserted by Ferring, Counts 4-17, were dismissed as time-barred from the face of the AC in the March 18 Order properly and with prejudice. (See March 18, 2013 Order, at 20 5 (citation omitted).) futile. As such, leave to amend these claims is denied as See Wallace v. NYC Dept. of Corrections, 112 Fed. Appx. 794, 795 (2d Cir. 2004) (affirming denial of leave to amend due to futility because statute of limitations had run); see also Troni v. Holzar, 2010 WL 3154852, at *2-5 (S.D.N.Y. July 29, 2010) (dismissals based on untimeliness operate as dismissals with prejudice and should not be revisited). With respect to claims 4-6, 10-11, and 12-14, Ferring has maintained that its claims are actually timely because it has added allegations of post-2003 conduct to the SAC that brings the claims within the limitations period. Specifically, Ferring points to two forms of post-2003 conduct that it claims alters the time-barred nature of the claims: Fein's and Nardi's (i) sharing of confidential, trade secret, proprietary, and privileged information and documents with Allergan, Serenity and Reprise and (ii) use of Ferring's confidential, trade secret, proprietary, and privileged information and documents to design and conduct the clinical studies of the desmopressin formulations and to obtain and commercialize the patents. <J1<J1 (SAC 120, 126, 226, 228, 231-34, 244-45, 248-51, 260, 262-64, 266, 274, 276-78, 280, 292-93, 298, 300, 313-14, 319-21, 335, 336-39, 341, 349-52, 358, 370-71, 373-75, 378.) 6 These allegat allegations regarding fail to save the claims because (i) s same post-2003 conduct were be re the Court on the motion to dismiss and denied, and (ii) the statute of limitat s began to accrue wi respect to these aims at the time of the initial alleged wrongful acts 2003, not when further alleged wrongful acts occurred. rst, the allegations regarding documents with as well as le sharing of ise and Serenity, were previously asserted with respect to Counts 6 through 14 in the AC and considered by the Court when it March 18 Order.) smissed these claims. Ferring already alleged that Nardi and Fein provided Ferring confidential, trade secret, proprieta ,and privileged and Reprise \\ r use in activit interest." (See AC 8-9)i ~~ formation to Al ~~ rgan, Serenity, s adverse to Ferring's 187, 200 (Counts 234, 250 (Counts 10 11); ~ 267 7); ~~ 212, 221 (Counts (Count 12); ~ 277 (Count 13)i 292 (Count 14).) Ferring also alleged in the AC that Nardi and Fein, in collaboration with Serenity and Reprise, made "use of the confidential and proprietary Ferring documents" and information in des as in obta ing and conducting cl ical tr ing and commercializing the patents. 7 ls, as well (See AC ~~ 189, 201 (Counts 6-7); 10-11); ~ 268 ~~ 213, 222 (Count 12); ~ 280 amendments ba ~ (Count 13); se exact allegations were rejected such ~~ (Counts 8-9); 235, 251 295 (Counts (Count 14).) timeliness, and as on these same aIle ions would be ile. Second, even if alleged "new" post rul is concluded t Ferring had 003 conduct, the March 18 Opi that allegations rding later conduct would not rna the claims timely, a conclusion reiterated denying the motion Order.) on already r recons ration. (See Claims 4-7, 10-11 and 12-13 all the first actionable aIle the August 5 Order March 18 gan to accrue when breach or tortious act occurred, and as such allegations regarding later conduct do not af the statute of limitat No. 67) (noting t s. (See August 5, 2013 Opinion (Dkt. Ferring's "timel s arrang[ing] conduct that the Court previously found irrelevant" prov ct failed to ration).) a basis to support reconsi Separately, with re to Counts 4-5, 10-11, 14-15 and 17, Ferring attempts to avoid t the proposed SAC has pI t-2003 time r by contending adequate claims and Serenity because it now al s that t 8 inst se entities were se "alter egos" of Fein and Nardi and thus can F e ' s and Nardi's actions. (See Plaintiff's ld liable for ief in Support of Leave to Amend, "Pl. Br."; at 7, 12, 13, 17, 25; g(g( 111, 142, 208, 222, 233, 250, 263, 277, 299, 302, 320, 323, 424, 430. ) in Ferring already all were principals of and equity partie s AC that Fein and Nardi s Reprise, and that they were officers and played a role in incorporating Serenity. (AC g(g( 82, 84, 105-08). 18 Order rejected Ferring's contention that Serenity and Nardi's conduct based on t (See, e.g., March 18 ise were liable for Fein's and se sitions within those companies. r, at 23 (dismissing Counts 4 and 5 with respect to Reprise ty because Ferring nowhere Se alleged that Reprise or Serenity had the requisite relations with or obligation to assign the patents to Ferring and the claims were t Reprise or Se r ).) A conclusory allegation ty are "alter egos" of Fein or Nardi adds nothing to what was already before the Court on t dismiss, and determination t obligation to Fer se motion to s no basis for revisiting the Court's prior ise and Serenity simply no 1 ng. See, e.g., Brainstorms Internet Mkt . v. USA Networks, Inc., 6 A.D.3d 318, 318-19 (1st 9 ' t 2004) ("conclusory allegations" regarding alter ego status were smissed)i Bonanni v. Strai insufficient and were properly Arrow Publis rs, Inc., 133 A.D.2d 585, 586 87 1 conclusion with no (amended complaint containing only a 1 factual allegations supporting (1st Dep't 1987) alter ego claim should be smissed) . Even if Ferring had adequately plead its "alter ego N theory with the requisite specificity, Reprise and Serenity did not exist when the all d wrongful conduct by Fein and Nardi occurred, nor did they exist when Fe or Nardi assumed the contractual or common law duties creating the requisite relationship to state a claim. Polar Communications See WorldCom Network Servs. v. 278 A.D.2d 182 (1st Dep't 2000) (evidence that three individuals who formed the original company were thereafter employed by another company is insufficient to infer a relationship between the two companies, much less a relationship sufficiently c se to serve as a predicate imposition of successor liability); Arnal the Tr. Union Local ----~------------------------- 1181 AFL-CIO v. Cit of New York 45 A.D.3d 788, 790, 2007) (Under New York Law, "an assignee or successor will not be bound to the terms of a contract absent an af assumption of the duties under the contractU). 10 (2d Dep't rmative The Court s already recognized t claims t Reprise e.g., Ma and Fe assoc t s fundamental defect in Ferri's Serenity requires dismissal. 18 Order, at 23 ("Counts 4 5 assert that Nardi are obliged to assign patents to Ferring by ions with Ferring before ended in 2002, several se or Serenity were even fo 5 are also ars Thus, Counts 4 and ct to Reprise or Serenity smissed with re Ferring rtue of Reprise or Se alleges t cause ty had any relationship or obligation to Ferring.").) In addition to Ferring's broad assertions of post 2003 conduct with respect to t and Nardi, respect to Fe amended cIa ss and its alter ego theory wi I of Ferring's ific propos also fail to cure the deficiencies as address in the March 18 Order, or present any new all based. a valid cause of action cou ., 310 F. ---"'- 243, 258 (2d by Count discuss r. 2002). See Lucente v. I.B.M. Accordingly, a Count of why each amended claim fails follows. I. ounts 4 and 5 (Patent Ownership) Remain C are in any event Meritless Plaintif tions upon which ' have reall T~e-Barred and counts 4 and 5, seeking ownership of patents-in-suit, asserting that as amended the 11 claims would sound replevin, and that their limitations period did not begin to run until early 2012, when there was "demand and refusaL" (See PI. Br. (Dkt. 71) at 6 7, 24.) Counts 4 and 5 have already twice been dismissed with prejudice. breach (See Mar. 18 Order at 23-24 contract, not replevin, ("Count 4 sounds in .") (emphasis added); id. at 25-26 (Claim 5 accrued in 2003, not at demand-and refusal); see also Aug. 5 Order (denying motion r reconsideration, which included replevin argument).) "with prejudice . . signi es that the court intended to dismiss the action 'on the mer final conclusion." Dismissal s,'" and "bring the action to Yonkers Constr. v. Port Auth., 93 N.Y.2d 375, 380 (1999). As held in the March 18 Order and reaf rmed in the August 5 Opinion, the claims sound in contract, not replevin. (See _ _ at 23 . 4). Plaintiffs' baseless attempt to recast Claims 4 and 5 as actions for replevin, so that the statute of limitations does not begin to run until "demand and refusal," fails for the same reasons as previous articulated: "where, here,] a plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory." 12 [as Usov v. Lazar, No. 13 cv-818, 2013 WL 3199652 at *7 June 25, 2013) smissing (S.D.N.Y. intiff's replevin claim cause "where a plaintiff is essentially seeking enforcement of the bargain, action should proceed under a contract (quotation marks and ory") tation omitted). Accordingly, Counts 4 and 5 are subject to the patent ownersh six-year statute of limitations, under which both counts accrued when Plaintiffs learned of the patent application 2002 and under which both cia are therefore time-barred. Dkt. 57 at 24 26.) aintiffs' "new" assertion that these claims accrued in 2012 has already been twice be success. (See . 49 at 13; D this court without . 60 at 7.) Order explains: "The latter accrual pe As the March 18 od [] appl s only if defendants' alleged acquisition of the Ferring documents and patents-in suit were lawful. However, Ferring has pI acquisition was unlawful." Kunsts Cir. 1982). that the See Mar. 18 Order at 41); see also 678 F.2d 1150, 1161 (2d Zu Weimar v. Plaintiffs still allege that the acquisition was unlawful; accordingly the demand-and-refusal rule still does not apply. 13 As to concluded he lergan specifically, the March 18 Order that third-party transferees of allegedly misappropriated patents-such as Allergan-are not proper fendants ownership actions. (See March 18 Order, at 22.) Plaintiffs now cites Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311 (1991) to overcome the spe s rule. Yet Lubell concerns ith purchasers; by al rules that apply to good contrast, Plaintiffs here repeatedly allege t anything but a good218.) i th purchaser. Allergan is (See, e. g., SAC 'lI'lI 204, Moreover, Lubell involves the sale of tangible property (i.e., fine art); it says nothing about the proper a patent owners conversion, action such as this fendants in (replevin, Ii s not apply to patentable ideas). Furt , since the claims sounded in contract, the Court also dismissed them because Allergan was not involved in the inventions claimed in the patent, and was neither a party to, nor a beneficiary of, Nardi's and Fein's alleged obligations to Ferring. 22.) See . at Because Allergan still is not alleged to have any involvement with F e ' s and Nardi's work until 2010, Ferring again fails to allege the requisite relationship to support a patent ownership claim. (Id. ) 14 lly, Plaintiffs' amended ownership claims are also re, barred by laches, which applies where, as p (1) the intiff knew, or should have known, of his claim; layed in taking action; and (3) t plaintiff inexcusably defendants were prejudiced as a result. See Inc. L.L.C. v. Nine West G --------------------------~~------ defense of laches is im should be clear on the face of the complaint," the smissing claims Each element of laches is admit that 2003, were aware of Fein's see SAC ~ ~S.~o_l~o_w ~B__~____~ __ No. 00-cv-7685, 2001 WL 736794, at *3 (S.D.N.Y. June 29, 2001). "When ssed. See id. th prej ed. cel. rst, PIa time. iffs ent applications in 75), and were thus on notice of for ownership at t (2) the ir cia (See Mar. 18 Order at 24-25) i see also Board of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular S 2009) (cl of 583 F.3d 832, 847-48 ( . Cir. for ownership accrue upon constructive knowledge patent lication). Second, despite knowing about the applications, subsequent filings, and issuances of these patents, see SAC lucrative Al 110), P t ~~ 95-101), as well as the announcement of rgan-Reprise-Serenity agreement intiffs 2010, id. ~ not file suit until nearly nine years a applications were filed. rd, 15 lergan s alleged both r and economic prejudice as result of Plaintiffs' del as s, including significant monetary investments (such cost of clinical trials). (Id. 'IT 118); see also 532 F.3d 1352, 1360 c v. Adv. Med. v. GMFanuc Robotics Co r. 2008); cf. F.3d 1062, 1065 (Fed. Cir. 1995) 52 (in the context of estoppel, s constitute cost of procuring patents and developing economic prejudice) . Plaintiffs have contended that Hor v. i 1331 (Fed. Cir. 2012) makes laches 1, 4; Dkt. 66 at 2-3.) However, that the language and procedures of t e. tent law for establishing inventorship, applies to asserted here. See Hor, patent issuance); claims under cia r state law, as 699 F.3d at 1335 language of the provision [§ 256J re See Dkt. 60 at cision, which relies on federal federal patent law, not ownersh 699 F.3d laining that "the ires" accrual to begin at see also Mar. 18 Order at 19 (describing the Hor court's reliance on " statutory language of confirm that [laches] cannot issues" for "inventor cia § 256 to gin, until the patent actually ") .) In Hor, the Federal Circuit was precluded by statute from giving effect to the important policy consi tions underlying laches, including t 16 cost of undue delay, which appears apt with re PIa to iffs' assertions: Without the threat of laches . omitted . t to remain inventor [or owner] is encoura silent as the applicant [or ass ] bears the entially costs of prosecution and garners lucrative licenses. Then, once ent issues, entitlement to the the omitted inventor can cIa rs. fruit of the applicant's I Hor, 699 F.3d at 1340 (Reyna, J., concurr statute in Hor does not apply to ). Because the claims asserted of I by Ferring, and because each e s is adequately pled, these policy considerat must be given effect and Plaintiffs' claims are appropr ly rred by laches. For the reasons articulated, any amendments to Counts 4 and 5 would be futile leave to amend is denied. See Mahmud v. Kaufmann, No. 05-cv-8090, 2010 WL 2079556, at *2 (S.D.N.Y. Apr. 15, 2010 ) r t should be loathe to coordinate court circumstances. ") law-of-the-case doctrine, "courts or cisions of its own or of a ence of extraordinary (punctuat and citation omitted) . II. Counts 6 and 7 (Breach of Common Law Duty) Remain Time Barred and are in any event Meritless 17 Ferring has contended that it has "amended Counts 6 and 7, [for Breach of Common Law Duty], to clarify that Fein's and Nardi's breaches, respectively, are not limited to the 2003 timeframe, but rather occurred during various timeframes, including as recently as the 2010-2013 timeframe." (SAC ~~ 111, 142, 208, 222, 233, 250, 263, 277, 299, 302, 320, 323, 424, 430. ) The March 18 Order determined that Counts 6 and 7 "are governed by a six year statute of limitations that begins accruing 'when all elements of the tort can be truthfully alleged a complaint,'" and that the filing of the patent application in 2003 was the moment the breach of duty claims could have first been asserted and thus when the statute of limi tat ions began to accrue. (See March 18 Order, at 28.) Because the initial complaint was filed more than six years after 2003, the claims were dismissed as time-barred. Id.) Ferring's "new" allegations of post-2003 conduct were already be the Court on the motion to dismiss and do not change when the claim began to accrue; thus, the new allegations provide no basis granting leave to amend for the reasons stated above. See supra at 6-8. 18 In addition to dismissing Counts 6 and 7 as time rred, the March 18 Order dismiss ot reasons, t contract claims. c Count 7 because, among im is duplicative of the breach of (See March 18 Order at 28.) Ferring now has "amended Count 7 to clarify that the common contends that law duties owed to Ferring by Nardi are broader than, and stinct from, the contractual duties owed to Ferring by Nardi by virtue Nardi's Employment and Severance Agreements." ~~ Ferring has cited Paragraphs 240 and 241 of the SAC 240-41.) r this propos (SAC ion, but these paragraphs remain unchanged from the previous Complaint. The only new allegation asserted is the conclusory sentence that "Nardi's common law duties extend beyond the terms and obligations of his Employment and Severance Agreements with Ferring." (Id.) fferent from Na still not explained as duties, nor does Fe The basis of these duties are ng lege any other evidence to alter the findings of t prior 's contractual cifics or new smissal. Count 7 thus remains duplicative of the breach of contract causes of action. As to Serenity and Reprise, the March 18 Order dismissed counts 6 and 7 against these entities 19 r the additional reason that her Reprise nor Serenity had the requisite relationship with Ferring that "would give rise to any common law duties." (March 18 Order at 28 29.) Ferring's assertions that Reprise and Serenity are "alter egos" of Fe and Nardi does not cure this deficiency and provides no basis for granting leave to amend for the reasons stated above. See supra at 8-10. Because even as amended Counts 6 and 7 fail to state an adequate cause of action and are time-barred, leave to amend is denied. III. Counts 8 and 9 (Aiding and Abetting Breach of Common Law Duties) Remain Time-Barred and are in any event Meritless Plaintiffs' eighth and ninth claims assert that Allergan aided and abetted Fein's and Nardi's breach of common law fiduc ry duties. The tort of aiding and abetting breaches of a common law duty does not encompass a "should have known" standard; actual knowledge of "the primary violator's status as a fiduciary and actual knowledge that the pr ry violator's conduct contravened a fiduciary duty" is required. See Mazzaro 20 de Abreu v. Bank of Am. Co (S.D.N.Y. 2007) facts, 525 F. Supp. 2d 381, 393 (citation omitt ). Plaintiffs "must [] allege in non-conclusory terms, to show knowing participation by fendants in the alleged breach." Musalli Factory for Gold & Jewell ______ v. _ _ _ _ _ _ _ _ _ _ J.P. __ ~L- (S.D.N.Y. 2009) ~ Chase Bank ____________ ~ (citation omitted) N.A., 261 F.R.D. 13, 24 _ _ _ __ _ (dismissing aiding and abetting claim) . The March 18 Order dismissed Counts 8 and 9 because Ferring had not alleged that Allergan "knowingly induced or participated in" any breach wi the requisite specificity, see Palmetto Partners, 83 A.D.3d at 808, and because the Counts were untimely. (See March 18 Order at 30-33.) Plaintiffs' proposed amendments do not in any way buttress the threadbare, speculative allegations that were previously held inadequate to support Plaintiffs' id.) aims. (See To the contrary, the SAC recapitulates the same unsupported chain of i rences-namely, that Allergan "knew" of Fein's and Nardi's obligations based on "due diligence" and/or Al rgan's alleged inspection of documents that "reveal" Fein's and Nardi's employment histories. 261.) Cf. AC ~ 212 with SAC ~ Even if believed, these allegations, namely that Al1ergan 21 rmer employment at Ferr knew of Fein's and Nardi's (employment that terminated eight years before the alle bre ), do not support intiffs' former job, in and of itself, there once were Mine (or are) s & Metals knowing about a s not support a finding that fiduciary obligations. See Global v. Holme, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _L -_ _ _ _ _ _ _ ____ 2006) aim: 35 A.D.3d 93, 102 (1st Dep't allegedly breached fiduciary (knowledge of t d ies cannot be inferred from knowledge of primary tortfeasor's employment) . Counts 8 and 9 were addit Plaintiffs' compla provided Fe ly di did not adequately and Nardi with " required to state a claim ssed because ad that lergan antial assistance, aiding abetting. If as is (See Ma 18 Order at 31.) Pia iffs now assert that t s "substantial assistance U derived Allergan's development of pharmaceutical products, (see Opp. Br. at 16) and from All "gain[ing] 261). knowl from Ferring documents," Both of these assertions (see SAC at i 1 for independent reasons. 22 "sum total of Plaintiffs' allegations First, when t s' substantial assistance" are "not concerning the [] De "hardly constitute[] assisting in a business," such all breach of fiduciary y." See Kaufman v. Cohen, 126 (lst Dep't 2003) against commerc (dismissing aiding and 307 A.D.2d 113, claims 1 real estate developers for assisting an alleged fiduciary in acquiring interest in a Plaintiffs' s' ] r those in the [de [] unusual activit[ies] Iding) . here fail because y merely assert in developing drug cise 1 that Allergan assi activities one would from a pharmaceutical company such as Allergan. See also Roni LLC v. Arfa, 72 A.D.3d 413, 413-14 (1st Dep't), aff'd, and abetting cIa indicates t entities 15 N.Y.3d 826 (2010) because, "[a]t most, property acquisitions commissions-activities real estate documentary evidence the attorney defendants structured and organized as the brokers on and col ssing the aiding are part of ordinary ing") . Second, unless an aider and duty directly to the plaintiff-a tor owes a fiducia ct t Plaintiffs here not pI and cannot plead-the "substantial assistance" necessa r an aiding and ti 23 claim requires affirmat acts to assist the breach or to help conceal the breach; mere inaction is insuffi at 390. ent. See Mazzaro de Abreu, 525 F. Supp.2d Plaintiffs' rely on lergan's alleged acceptance of Ferring confidential information to demonstrate such an ving [] documents" does not rmative act", but "simply "a constitute substantial assistance. Watts v. Jackson Hewitt Tax. Servo Inc., 675 F. Supp.2d 274, 281 (E.D.N.Y. 2009); see Catskill Dev. L.L.C v. Park Place Entm' 136 (2d Cir. 2008) insuf 547 F.3d 115, ("knowing acceptance of benefits. cient to sust so is n a claim for participating in the breach of fiduciary duty" by aiding and abetting). In short, aiding and abetting requires substantial assistance of an actual breach of a known fiduciary duty, and Pi ntiffs have failed to adequately allege any of these elements. See Mazzaro de Abreu, 525 F. Supp.2d at 388 ("The first element of aiding and abetting breach of fiduciary duty is the breach by a fiduciary of obligations to another party."); cf. Palmetto Partners v. AJW 804, 809 (2d Dep't 2011). lified Partners LLC, 83 A.D.3d As such, any amendments to Counts 8 and 9 would be futile and leave to amend is denied. IV. Counts 10 and 11 (Breach of Contract) Remain Time-Barred and are in any event Meritless 24 r breach of h respect to Counts 10 and 11 contract, Ferring once aga contends that it can sue Defendants Reprise and Serenity for breach of a contract that parties to or assignees of, contra well-established precedent. to the Ma are not 18 Order and (See March 18 Order at 33-34.) "It is hornbook law that a non-signatory to a contract cannot be named as a fendant a breach of contract action unless it has thereafter assumed or assigned contract." Crabtree 776 F. Supp. 155, 166 (S.D.N.Y. v. Tristar Auto. 1991) . With respect to all Defendants 18 Order di Nardi, t ssed the breach of contract cIa March because, addition to being time-barred, no contractual relationship existed wi Ferring. s supporti Ferring still is unable to plead any the requisite relationship by Defendants to Ferring for breach of Nardi's Employment Agreement or Severance Agreement, that there was a formal assignment of the contracts, or t Reprise or Serenity assumed Na 25 's obI ions under his employment contracts with his pr leave to amend Counts 10 and 11 would r employer. futile. As such, 1 With respect to Nardi, leave to amend Counts 10 11 is also denied because Counts 10 and 11, even in their amended form, remain time rred. As ld in the March 18 Order, "[t]o the extent Nardi breached any contract by using Ferring information to develop desmopressin products or assist in obtaining patents, those breaches accrued no later than 2003, when Fein first pursued his patent application independently." (March 18 Order at 34.) All of Ferring's purported new allegations of post-2003 conduct were already addressed and dismissed in the March 18 Order and do not change when the claim accrued. See at 6-8. Accordingly, leave to amend Counts 10 and 11 would be futile as to all Defendants. V. Count 12 (Interference with Contractual Relations) Remains Time-Barred and is in any event Meritless 's effort to hold se and Serenity liable for breach of contract under the "alter ego" likewise fails and no basis for granting leave to amend for the reasons stated above. See supr§ at 8 10. 26 Count 12 was dismissed in t Ferring to plead requisite e i intentional r March 18 Order because s of "a claim for rence with contractual relations," including that Allergan (1) had "actual knowledge," or (2) intended to "induce any contractual breaches." (March 18 r at 35 (citing Jones v. City Sch. Dist. Of New Rochelle, 695 F. Supp. 2d 136, 148 (S.D.N.Y. 2010) (stating that intentional claim) ) .) necessary element of Plaintiffs' proposed amendment still adequately plead e is a ils to r of the requisite elements. First, the s not add any allegations dencing that Allergan had actual knowledge of the Employment Severance Agreements (t breached. (See Mar. 18 "Agreements") that Na y r at 35 {citing . v. Lefkowitz, 16 F. Supp. 2d 355,356 (S.D.N.Y. 1998)).) Plaintiffs' contention Court has already reject bare assertion that Alle ,s t ative "due diligence" and inspection of documents supports the conclusion that Allergan "knew" of Nardi's execut obl ions to, Ferring. position at, and ongoing contractual {See at 32 rgan saw or even knew of Na 27 ("There is no allegation 's employment or provided no reason to Severance Agreements.").) Plaintiffs revisit t t finding. that To the contrary, Plaintiffs Allergan did not become aware of the Agreements until February 7, 2012 (SAC occur s after the allegedly induced breaches . See ~ 333) . v. Cafa 302 A.D.2d 588, 588 (2d Dep't 2003)). Plaint if s 'new allegations of willful indness are larly insufficient to infer actual knowledge: "actual notice" is required, and "allegations of constructive knowl or a duty to inquire, are inadequate to constitute an ceable claim". Business s, LLC v. PKR Stores, LLC, ~~--~~~~----------~~~~~~--~ 2010 N.Y. Slip Op. 32831 (Sup. Ct. 2010); see also Martian Entm't LLC v. Harris (tortious inter ntiff [] 12 Misc.3d 1190(A) (N.Y. Sup. Ct. 2006) rence claim "is defective on its face," as i to allege defendant was aware of terms of plaintiff's agreement"). Second, the only t Allergan intended to conclusory statement rgan "act shared, and entially relevant new aIle rfere with Na "[u]pon in 's agreements, is rmation and ly, knowingly, and intentionally" re Ferring's confidential in 28 tion, rmation. lief," sted, (See SAC ~ 336.) That statement, lacking any factual underpinning-or even t basis of the "information and 1 f" on which the allegations are pled-"do[es] not fulfill even the liberal [pleading] standard of Rule 12(b) (6)." See 150 E. 58th St. Partners, L.P. v. Wilkhahn Wilkening & Hahn GmbH & Co, No. 97 cv-4262, 1998 WL 65992, at *2 (S.D.N.Y. Feb. 17, 1998). Similarly, the proposed amendment that Allergan "intended to cause contractual breaches" without any accompanying supporting evidence likewise fails; "[t]he law requires some factual specificity in pleading tortious inter rence." See 150 E. 58th St. Partners, 1998 WL 65992, at *1. Because aintiffs' proposed all ions are inconsistent with the pleading of "actual knowledge," and fail to show any intention to inter would futile. See A A Test Tube Co. v. Sohne, 20 A.D.2d 639, 639 (2d Dep't 1964) inte re by Allergan, any amendment (dismissing allegations of tortious rence for improperly pleading that the defendant "knew or should have known" "of a particular contract in question") . Independently, an essential element of tortious interference with contractual relations claim is an actual breach of contract. See e. . , NBT Banco Inc. v. ----------~~-------- 29 rstar Fin. ~~~~~~~~~-~--~~~ , 87 N.Y.2d 614, 620 (1996). Consequently, if the claims for breach of contract (Counts 10 11) are futile, the c im see at 25-26, as (Count 12). tortious inter With respect to timeliness, that the new re, so too must Ferring also rna legations of post 2003 conduct ins time- t barred nature of Count 12, which was dismissed in the March 18 Order under the applicable statute 0 limitations. See March 18 Order at 35-36.) three with contract r statute of 1 relations begins running "at the time t ury is sustained." suf tat ions for interference Id. "Because the injury allegedly red by Ferring as a result of assistance in devel obtaining desmopressin patents occurred alleged contractual inter 2003, when the rence caused Fe to file his patent r held that Ferring's claims applications," the March 18 accrued in 2003 and were ng and smis as time barred. (Id. ) later post 2003 events cited by Ferring were already and, in any event, do not alter when supra at 6-8. 30 claim accrued. the AC, See Because the amended Count 12 fails to state a valid rred, leave to amend is is time cause of action n VI. Count 13 (Misappropriation of Trade Secrets) Remains Time-Barred and is in any event Meritless Count 13 for misappropriation of trade secrets was iously di ssed in t March 18 Order because no requisite and Ferr relationship between AIle even if were, the s alleged were insuffic constitute "improper means." To state a must all was adequately pled, (See Ma 18 Order at 38-39.) for misappropriation, a plaintiff that "(1) it possessed a t defendants are using secret, and (2) trade secret in breach of an agreement, confidence, or duty, or as a result of improper means." See Geritex F. Supp. 955, 961 Allergan agreement with Ferring, a confi Ferring, or a duty to Ferring, Dkt. 48 at 23)}, PIa the scovery by v. Dermatite Indus. (S.D.N.Y. 1996) Conceding to (quotation omitt s not act LLC 910 ). breach of an ial relationship with (see Mar. 18 r at 38 (citing iffs essentially propose to simply insert se "improper means" into their alre 31 smissed improper conduct. Spe s identifying or allegations, wi (See SAC at fically, ~ ng any speci 353.) Plaintiffs contend that the SAC s that Allergan's improper means invo trade secrets argument Pia c sts knowingly accepting Fein and Nardi 2, see Opp. Br. at 21), an iffs have made, wi success, twice (See Dkt. 49 at 12; Dkt. 60 at 21.) Plaintiffs' conclus inferences-namely that Allergan " " of Fein's and Na nand/or Allergan's obligat sed on "due dili inspection documents-still do not provide adequate means. support an allegation of mere conc Ashcro readbare rted by ory statements," is inadequate as a matter of law. 556 U.S. 6 678 (2009). Similarly, Ferring's allegation that mi leged s to Indeed, a" recital[] of the elements of a cause of action, s ,s iated Ferring t secrets by "disclos lergan [] Plaintiff's reliance on ~o. 93-cv 4003, 1994 WL 9681 (S.D.N.Y. Jan. 10, 1994) to show misappropriation "does not re that the defendant himself breach a duty" is misplaced. ld. There, the defendant ion was on notice that it was soliciting and trade secret information becaese the corporation's principals were former employees of the iff. Similarly, in v. R W No. 95-cv-4552, 1996 ~"IL 531873 (S.D.~.Y. Sept. 19, 1996), defendants were (and then violated) fic instructions to avoid us the plaintiff's confidential programming. No sech facts are here. 2 32 documents containing such t secret information to the District Court of The Hague," already pled in the AC, is unsupported. (SAC ~ 355.) ss, the submission of documents to The Hague as part of a judicial proceeding cannot constitute trade secret mis (See Mar. 18 Order at 38-39 ("Ferring alleges only s' evidentiary submissions in The Hague were rse to Ferring's interest, but s not plead any actual damages res therefrom.") .) t In addition, a claim for mis i , see Abe's Rooms Inc. v. iation requires bad ce Hunters 690, 692-93 (2d Dep't 2007), yet the propos a conclusory assertion that Inc. 38 A.D.3d SAC does not even with "bad 1 et alone factual allegations that would support such a or even that Allergan was aware of Fein's and Nardi's 1 Ins. Co. compet obl ions to Ferring. See LoPresti v. Mass. Mut. Life 30 A.D.3d 474, 476 (2d Dep't 2006) ion c ith mi because "the complaint ation"); see also Bul i ssing unfair to allege [J bad 1 Doulton PLC, --~~--------~----------~---- No. 05 cv-7709, 2006 WL 3771016, at *8 (S.D.N.Y. Dec. 19, 2006) (dismissing with udice plaintiffs' unfair competition cIa as it only conta a conclusory allegation that the 33 defendants' conduct was "willful, malicious, oppressive, and committed with actual or constructive knowledge"). In terms of timeliness, Ferring also maintains that the new allegations of post 2003 conduct remedy the time-barred nature of Count 13. Under New York law "misappropriation claims must brought within three years of 'when the defendant discloses the trade secret or when he rst makes use of the plaintiff's ideas.'" (March 18 Order at 39 (quoting S ~----~---------~------ 2009 WL 2016872, at *2).) As such, the "three-year limitations period began in 2003, when Fe first applied for patents covering desmopressin formulations," more than three years fore the filing of the initial Complaint. (Id. at 39 40) Though Ferring again contends that it has added reference to post-2003 events that the claim timely, these events were already before the Court on the motion to dismiss, and cannot change when the c im accrued. See at 6-8. Nor does Ferring's continuing tort theory bring Count 13 within the limitations period: for misapprop ation to be a "continuing tort" such that the statute runs from each 34 alleged misappropriation, success defendant must "keep the secret confidential yet make use of it to his own Norbrook Labs. Ltd. v. G.C. Hanfo advantage." 297 F. Supp. 2d 463, 488 n.20 (N.D.N.Y. 2003). Here, PIa allege the opposite, called trade secrets. "discI informat Defendants disclos See SAC ~ iffs Ferring's so- 123 (asserting that Fein confidential and proprietary to Ferring" in his patent application).) Accordingly, Count 13 accrued in 2003, and any alleged later conduct cannot render the claim timely. See ~~~~~~~~~~~, ("misappropriation cIa 'when must be brought within three years of defendant discloses the t makes use of the pIa 2009 WL 2016872, at *2 iff's secret or when he rst as" (emphasis added)). Because Ferring's SAC fails to plead the elements of misappropriation, and is any event untime isite ,any amendment would be futi VII. Count 14 (Unfair Competition) Remains Time-Barred and is in any event Meritless With re Ferring notes that " to Count 14 for unfair competition, Court's rationale for dismiss 14 is not clear to Ferring." (Pl. Br. at 22.) 35 Count Despite Plaintiffs' apparent confusion, March 18 Order states that Count 14 was ssed because duplicat claim (Count 13), which the of the misappropriat Court also di ssed. (See Mar is 18 Order at 40.) F e ' s amended unfair competition claim remains a duplicate of s amended misappropriation claim. ("Fein and Na i have unfairly misappropriat (See SAC '][ 370 with Ferring Ferring's labor, s 11, know-how, secret, ary and privil iding Fein, AIle , Serenity, and and confidential, t information by s with such materials ise breach of their common law and/or contractual duties to maintain the secrecy of these rna t e ria 1 s . fI) ¢ ) An ir competition claim can only survive dismissal ation claim if of a duplicative mis dif rent factual Siernza Microdevices two rest on cates. See Inc. No. 03-cv-1851, 2006 WL 6937123, at *20 n.21 (E.D.N.Y. July 11, 2006). Since Plaintiffs' claims for misappropriation (SAC '][ 349) and unfair competition (id. '][ 371) are rtually identical, if the Court once again finds that the 36 claim is defi misappropr il. would also competition unfair ent or untimely, See Is on Ice Li rie v. BodyLines, Inc., 425 F. Supp.2d 286, 296-97 (S.DN.Y. 2004) (dismissing un as unt ly) claim even ir competition claim based on misappropriation Accordingly, cause Ferring's misappropriation, and s amended form remains time-bar deficient, see supra 31 35, leave to amend Count 14 remains futile. Regardless, Ferr independently without me A claim for un 's claim for un ir competition is t. ir competition bas on iation requires the plaintiff to mis omissions by defendants mis iation." Co proximately caused a Data Servers, Inc. v. I.B.M. 166 F. Supp. 2d 891, 894 and citation omitted) i the innovat misappropriated "to "acts or (S.D.N.Y. 1991) A plaintiff must (quotation marks so "sufficiently or developments l i allegedly low the reader to understand P:a~nt~ffs assert, for the third time, that 41 F. Supp.2d 491 (S . . N.Y. 2006) saves the c1aiD. But Kwan is a "reverse pass off" case, involving a different statutory period than P:aintiffs' unfair competition claim, which is grounded in mis ation. 37 specifically was misappropriated and to evaluate [the] plaintiff's property rights in it." See Commercial Data Servers, 166 F. Supp. 2d at 894-95 (emphasis added) (dismissing unfair competition claim with prejudice) . Plaintiffs generalized, conclusory statements fail to specify what or how was misappropriated. (See SAC ~ 371.) For instance, Plaintiffs allege that Fein and Nardi "improperly provided [AllerganJ with [J confidential information"-without any corresponding allegation that Allergan "misappropriated the information from them." See Czech Beer Importers, Inc. v. C. Haven Imports, LLC, No. 04-cv-2270, 2005 WL 1490097, at *7 (S.D.N.Y. June 23, 2005) competition claim). (dismissing plaintiffs' unfair Similarly, Plaintiffs simply assert that Allergan has run desmopressin clinical trials based on "Ferring confidential information" (see SAC at ~ 118) and that Allergan allegedly misappropriated Ferring's "confidential, trade secret, proprietary, and privileged information," (see id. at ~ 371), but conspicuously fail to identify what innovations or developments that were allegedly misappropriated by Allergan. These vague statements fail to articulate "specific acts of misappropriation," and thus do not satisfy the pleading 38 standards. See Data Broad. . v. Tele-Communications ~~--~~ ---~~----------------------------~-----' No. 92-cv-4840, 1992 WL 350624, at *3 n.4 1992) (emphasis added) competition Inc., No. (dismissing plaintiffs' un aim); see Consumer USA, so - - - - - - Carson (E.D.N.Y. 2013) (S.D.N.Y. Nov. 19, ll-cv~3677, (finding pi competition claims, which" ir Inc. v. 2013 WL 1209041, at *6 iffs' "conclusory" unfair il to identify specifically t alleged wrongful conduct undertaken by defendants," as "insufficient to establish a claim of unfair competition under New York law") . Accordingly, any amendment to Count 14 would be futile and leave to amend is denied. VIII. The Proposed Amendments to Count 15 (Conversion) Would be Futile as to Allerqan and Count 15 Remains Time-Barred as to Fein and Nardi Ferring does not add any allegations with respect to Count 15 that were not previously be re the Court or would cure the time-barred nature of the claim. The tort of conversion requires that the defendant, "intentionally and without authority, assumes or exe 39 ses control over personal property belonging to someone else." Reiman Marketxt Ho P.C. 69 3 F. S u pp. 2 d 387, 395 (S.D.N.Y. 2010). The Court already dismissed this claim as to Allergan, because Ferring has not alleged any facts demonstrating that Allergan intentionally exercised control over Ferring property. See March 18 Order at 40.) The claim also fails cause the types of "property" that Allergan allegedly converted-confidential Ferring documents and formation (SAC (id. at ~ well-settl ~ 388), and inventions belonging to Ferring 387)-are not amenable to claims for conversion. It is that "[aJ claim for conversion does not lie for the withholding of inde nite, intangible, and incorporeal species of property," see Matzan v. Eastman Kodak Co., 134 A.D.2d 863, 864 (4th Dep't 1987), as "an idea alone cannot be converted" such that it satisfies the required elements. MP Innovations, Inc. v. Atl. Horizon Int'l, Inc., No. 604133/2007, 2008 WL 7729118 omitted) (N.Y. Sup. Ct. 2008) (quotation marks and citation smissing claim for conversion of "[iJnformation" comprised of "strategies, a formula, a system, a model, methodologies and techniques"). Plaintiffs' allegation that 40 Ferring "confidential, trade secret, Allergan convert proprietary, and privileged information," (see SAC at (emphasis added)), flies in the face of this ru survive a motion to dismiss. 7729118, at *1. MP Innovations, "idea" matures into a patentable invention. and any amendment would be lerga See id. t I claim must fail --~----~ No. 02-cv-4887, 2005 WL 1262095, at *15 (E.D.N.Y. May 26, 2005) (ci by plaintiffs at (Defendant's "use [of] the source code did not prohibit plaintiffs from using [] took a copy Inc., 2008 WL ile. See Software Ferring Mot. at 6) and would not re is no allegation of definite, tangible property that was converted by Inc. v. Uni 388 remains regardless of whether t This Because ~ code, because fendant the code."); Hair --~-- .. ~~--~~~~~~~~~~~ Inc., 6 Misc. 3d 1041(A), at *6 (N.Y. Sup. Ct. 2005) (a conversion action cannot lie when defendants merely possess a copy of the allegedly converted property) . As to Fein and Nardi, Ferring contends once again that Count 15 is timely "because Ferring's conversion claims did not accrue until Ferri's demands and [Defendants'] re als in early 2012." (Cf. Ferring Mot. at 24 with Ferring Opp. to Non 41 Allergan Motion to Dismiss (Dkt. No. 49) at 13.) The March 18 Order already concluded that the demand and refusal accrual period did not apply here because Ferring has alleged the documents at issue were obtained through unlawful means. 18 Order at 41 ("The later accrual refus appl (March riod [of demand and s only if defendant's alleged acquisition of the Ferring documents and patents-in-suit were lawful.").) Ferring does not add any new facts or allegations that alter this ruling. As the March 18 Order he ,the statute of limitations began to run "when the alleged conversion takes place," whi here occurred in 2002 when Nardi and Fein purportedly retained documents after comp and/or consultancies. See ting their employment at 6-8. Because the proposed amendment to Count 15 would be futile, leave to amend is denied. IX. The Proposed Amendments to Count 16 (Fraudulent Concealment) Would be Futile ring maintains that the SAC cures the fects of its original Count 16, for fraudulent concealment against Fein and Nardi, which was dismissed in the March 18 Order for failing 42 to allege: occurred; (3) (1) "when, where or how" alleged misrepresentations (2) any "fraudulent intent with particularity"; and "that [Plaintiffs'] or omission by either Na relied on any specific misrepresentation or Fe or that such alleged e." reliance was reasonable or justi (March 18 Order at 44 45.) Plaintiffs, however, il to any new allegations as to Fein, and the new allegations as to Nardi fail to show any Ise statements supporting a claim As to Fein, lent concealment. r Ferring's SAC relies on t correspondence that was considered on motion to dismiss, and ils to add new allegations evidencing For instance, act s Ferring's new al lent intent. "Fein t th fraudulent intent in making his affirmat sentations and his fraudulent omiss " (SAC at i of alleging facts giving rise to Ils far 409) i re rence of intent under even the most lenient of st st to same tion, n scrib to Ferring. t though Ferring's SAC devotes ra December 14, 2004 letters from Fein's attorney (SAC at i i 404-07), the full contents of t 43 se fore the Court on the motion to di letters were already , when Quoting the text of these letters in the already be y were ,s the Court, does nothing to improve Ferr baseless fraudulent concealment claim. Regardless, Ferring's allegations as to t either Plaintiffs did not conduct an letters demonstrate init se 1 review of the letters, as claimed, or that the review ked due diligence and equitable tolling is inappli e. The December 14, 2004 letters state that "[w]hatever Ferring data is set appl rth in Dr. Fein's subject patent ion comes solely from text of UK priority application filed by Ferring in May 2002" (Reeves Decl. Ex. L) and "that the new data [in the lication] did not emanate from Ferring" and "came from an independent clinical evaluation commissi by Dr. Fein." attorney likewise not applicat (Reeves Fein's that "Dr. Fein's published U.S. contains data beyond Ferring UK application . Ex. M.) included in . We trust you 11 be origi e to 4 The letters were incorporated by reference into Ferring's AC and were annexed to the declaration of Allergan's attorneys in opposition to the motion. SAC at , 75; Declaration of Je Reeves, "Reeves Decl."; June 29, 2012 (Docket No. 28), Exs. 6, 7; March 18 Order, at 16-18 (summarizing the in the factual discussion); Sxs. L, M.l 44 quickly determine for yourself that the new data did not emanate from Ferring." Id.) Ferring now alleges that these statements were false because t application "did in fact 'disclose information confidential and proprietary to Ferring,'" "disclosed Ferring information that was not in Ferring's UK application," and "contained data that emanated from Ferring." (SAC ~ 407.) Ferring also aIle fraudulent srepresentations in these letters occurred "following Ferring's ~ s, however, that the supposed ew of Fein's patent application." (Id. 405.) Ferring thus alleges that, on the one hand, Fein's patent application "did in fact disclose [] information confidential and proprietary to Ferring," yet, on the other hand, acknowledges that it had reviewed Fein's patent application. If Fein's patent application contained confidential Fe ng information, as Ferring alleged, then Ferring could have readily determined this, exercising reasonable reviewing application, as it now claims A party must plead that it was reasonably did. (E.D.N.Y. 2008). nce, a (SAC ~ er 405) ligent in investigating fraud to claim the benefit of equ See C.A. Inc. v. Rocket So Ii able tolling. 579 F. Supp.2d 355, 361 Either Ferring never conducted the review it 45 claims it did, whi is fatal to its equit le tolling theory, or it conducted a review but, through a lack of reasonable diligence, iled to recognize that the patent application contained confidential Ferr in rmation, which likewise is al. Ferring's fraudulent concealment claim is thus, as now pled, quite literally an admission that Ferring either did not review t applications as required, or failed to exercise the reasonable diligence required r equitable toll Even if the SAC's new allegation that Ferring relied on Fein's attorney's statements in the letters were credited, Ferring must also alle s showing that such reliance was reasonable and justified. The letters do not include a statement "that Fein's patent applications were not bas Ferring formation." on any nonpublic (Non-Allergan Defendants' Opposition Brief, "Opp. Br."; at 11-12.) Ins , one of the letters states that "there exists no basis for the assertion that the publication of Dr. Fein's application has improperly made publ confidential information of Ferring." (Reeves Decl. Ex. M.) Thus, if Ferring determined that Fein had disclosed its confidential Ferring information after threatening to sue him on this sis, that was not a result of reasonable reliance on F e ' s attorney's statements, but rather was based on Ferring's 46 own review of the patent application and ~ s own judgment. (SAC 405.) Wi to Nardi, Ferring's SAC details re correspondence between Nardi and Ferring during his termination process. Ferring contends t these correspondences, including two letters on October 7, 2002 and November 1, 2002, respectively, provides the required specificity to support its fraudulent concealment claim, which was previously t March 18 Order lack of rticularity. smissed in (March 18 Order at 46.) rst, Ferring asserts that its fraudulent concealment claim against Na is buttressed by additional allegations that "Nardi intentionally made fraudulent misrepresentations via his communications with Ferring in Ferring" document t context of his severance from October 7, 2002 letter from Nardi to Wayne Anderson. See SAC Ex. N.) P allegation on t following statement intiffs base this the October 7, 2002 ter: The trans r of computer files was initiated last week and should complet later this week on my home systems. As you know the ctice I initiated at FPI was to have all data stored in the "Archive." I downloaded copies of electronic files or made working copies of paper files for 47 work that I was do . Consequently the only unique fi s on my computer were t presentations created by me ba on information in the archive. All of this will be deleted from my storage sks and trans rred to Ferring. (SAC Ex. N.) Ferring's SAC states in conclusory fashion that this statement was" Na lse, fraudulent, and misleading because did not 'delete [] from [his] storage disks and trans [] to Ferring' the 'copies of electronic copies of paper files.'" al (SAC any facts supporting t ~ 416.) les or this letter. . working Ferring does not, though, t Nardi's statement regarding the manner in which he maintained documents at home is even that Nardi r iled to do exactly what lse, or said he would do In short, Ferring never points to any allegations supporting the conclusion that anything stated in letter is actually false. later correspondence that Ferring submits support of its cl against Nardi, the November 1, 2002 letter Nardi countersigned relating to his termination process, provides no better support claim. (SAC Ex. N.) r Ferring's audulent concealment The letter is so heavi is difficult to fully understand the contents of t cted that it document. One of the few sections of the letter that is not redacted states in pertinent part: 48 We are prepa for you to keep the computer equipment you have at your home on an "as is" basis. It is a condition, however, of the transfer of this equipment t you rmit a Techneto t ician to visit your home within three (3) da of this letter the sole purpose of removing from the memory of your computer all Ferring information. This s should not be seen as a lack of trust on our part, simply that our technicians can more ef ctively remove material which might acci ntally 11 into the wrong hands. Simila aile y to the October 7 letter, Ferring does not that any statement that is actually made in the ter is Ise. Instead, Ferring alleges that "Nardi did not permit the removal 'from the memory [his] computer [of] all Ferring information'" and that thus the letter contained a false statement. (SAC ~ 416.) But the letter does not say that Na will permit or indeed have hing to do with removing Ferring information from his computer. What the letter states is that Nardi will "permit a Techneto technician to visit [his] home with three (3) days of this letter the so purpose of removing from the memory of [his] computer all Ferring formation." Nardi was to (SAC Ex. N.) The letter furt fer to the technicians 49 cause r details that y can "more ally effectively remove the material which might acci into the wrong hands." (Id. ) 11 re is no allegation in failed in this obligat Ferring's SAC or otherwise that N or did not allow the Techneto technician to "visit [his] home," or in any way otherwise obstruct Because Ferr this process. (Id. ) 's new allegations as to both Fein and Nardi fail to plead any fraudulent intent or reliance with any specifi y, the proposed amendments would be futile and leave to amend Count 16 is denied. See Woods v. Ma 2010 U.S. Dist. LEXIS 116595, at *14 (E.D.N.Y. Nov. 2, 2010). X. Count 17 (Unjust Enrichment) Remains Time-Barred and is in any event Merit1ess Count 17 di ssed as t -barred and, independently, because Ferring failed to adequate Plaintif unjust enrichment was previously plead the requisite relationsh and Allergan, Serenity or Reprise. between See March 18 Order at 48.) determinat With respect to t the claim is time-barred, Ferring's only basis for seeking leave to amend is that its fraudulent concealment statute of limitations. As aim itably tolls the ld, Count 16 was previously 50 dismissed in t Ma 18 Order and leave to amend that claim is here denied as futile. See supra at 40 41. 16 cannot be used to t I Accordingly, Count intiffs' unjust enrichment cIa and Count 17 remains time-barred. Ferring also contends that appropriate because the s amended Count 17 is clarifies that this claim is also asserted against Serenity and Reprise, which are "alter-egos" of Fein and Nardi and thus have the requisite relationsh support a claim for unjust enrichment. inapplicable. See to This theory is likewise at 8-10. Because Ferring has thus failed to show how any the SAC would cure the deficiencies in Count 17 amendments articulated in the March 18 Opinion, leave to amend is denied. Conclusion For foregoing reasons, aintiffs' motion for leave to amend is denied in its entirety. 51 fih! It is so ordered. New York, NY March 2014 7' (I ~~ ~. 52 ROBERT W. SWEET U.S.D.J.

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