FS Medical Supplies, LLC v. TannerGAP, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:21-CV-501-RJC-DCK
THIS MATTER IS BEFORE THE COURT on the “Notice Of Parties’ Agreement To
Conduct Discovery And Motion To Stay Time For Plaintiff’s Response To Defendants’ Motion
To Dismiss” (Document No. 19) and Defendants’ “Motion To Dismiss” (Document No. 15).
These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§636(b), and immediate review is appropriate. Having carefully considered the motions and the
record, the undersigned will respectfully recommend that the motion to stay be granted with
modification and that the motion to dismiss be denied without prejudice.
BACKGROUND
FS Medical Supplies, LLC (“Plaintiff” or “FSMS”) initiated this action with the filing of
its “Complaint” (Document No. 1) on September 23, 2021. Defendants TannerGAP, Inc. (“GAP”)
and Tanner Pharma UK Limited (“Tanner UK”) (together, “Defendants”) responded with a
“Motion To Dismiss” (Document No. 15) filed on December 6, 2021.
Defendants contend that the Complaint should be dismissed for lack of personal
jurisdiction, forum non conveniens, and for failure to state a claim. (Document No. 15). More
specifically, Defendants assert that the claims against GAP should be denied with prejudice and
FS MEDICAL SUPPLIES, LLC, )
)
Plaintiff, )
)
v. ) MEMORANDUM AND
) RECOMMENDATION
TANNER PHARMA UK LIMITED
TANNERGAP, INC.,
)
)
)
Defendants. )
)
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that the claims against Tanner UK should be denied without prejudice to being brought, if at all,
in the Courts of the United Kingdom. Id.
On December 14, 2021, the undersigned granted Plaintiff’s unopposed motion to extend
time to respond to the motion to dismiss and extended the response deadline to January 14, 2022.
(Document No. 18). In addition, the Court directed the parties to confer regarding the need for
early discovery related to jurisdictional issues. Id.
The parties now inform the Court that they have reached an agreement to conduct early
discovery related to jurisdictional issues and, therefore, seek to further extend the briefing schedule
for the pending motion to dismiss. (Document No. 19). The parties expect to complete discovery
related to this Court’s jurisdiction over Defendant Tanner UK by April 14, 2022. Id.
DISCUSSION
The undersigned commends the efforts of counsel and the parties in reaching an agreement
on early jurisdictional discovery and finds that a stay of other action in this case through the end
of April 2022 is appropriate. However, in the interests of judicial economy and efficient case
management, the undersigned finds that the pending motion to dismiss should be denied, without
prejudice to being re-filed at the conclusion of the jurisdictional discovery. It seems likely that the
Complaint and/or the Motion To Dismiss will benefit from amendment following the parties’ early
discovery.
RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that the
“…Motion To Stay Time For Plaintiff’s Response To Defendants’ Motion To Dismiss”
(Document No. 19) be GRANTED, with modification. The parties shall have until April 14,
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2022 to conduct jurisdictional discovery and this matter will be STAYED as to other briefing or
motions practice unrelated to discovery.
IT IS FURTHER RECOMMENDED that Defendants’ “Motion To Dismiss” (Document
No. 15) be DENIED WITHOUT PREJUDICE.
IT IS FURTHER RECOMMENDED that Plaintiff be directed to file an Amended
Complaint, or notice of intent not to amend, by April 22, 2022. Defendants shall then file an
Answer, file a renewed motion to dismiss, or otherwise respond to the Complaint/Amended
Complaint, on or before May 6, 2022.
TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.
Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude
the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue
in a magistrate judge’s report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED. Signed: January 18, 2022
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