Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rx USA International, Inc v. Superior Pharmaceutical Co.

December 7, 2005

RX USA INTERNATIONAL, INC, PLAINTIFF,
v.
SUPERIOR PHARMACEUTICAL CO. D/B/A RXBAZAAR, INC. D/B/A FPP DISTRIBUTORS, INC., C. ROBERT CUSICK, ROBERT CAWTHORN, HANDEL EVANS, SHIKAR GHOSH, WOLF & CO., P.C., FOLEY, HOAG & ELLIOTT, LLP, WEST AMERICAN INSURANCE COMPANY AND OHIO CASUALTY INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Platt, District Judge

MEMORANDUM OPINION and ORDER

In a letter dated, November 8, 2005, Defendant Foley, Hoag & Elliott, LLP ("Foley") moves this Court to (i) order the correction of the Court's Memorandum and Order of October 20, 2005 ("the Order") as well as the July 25, 2005 transcript of oral argument ("the transcript"), (ii) reconsider the Order denying Foley Hoag's Motion to Dismiss, and (iii) grant Foley Hoag's Motion to Dismiss. For the following reasons, Defendant's motions are GRANTED IN PART AND DENIED IN PART.

A. Correction of Court Documents

On November 4, 2005, counsel for Plaintiff ("Rx USA"), Donald N. Rizzuto, submitted a letter to this Court stating that he was misquoted in the oral argument transcript. Mr. Rizzuto was quoted as follows: "What happened was, shortly thereafter Foley and RxBazaar was [sic] indicted by the Justice Department for selling contraband product across state lines."

Mr. Rizzuto stated that this passage was incorrectly recorded by the Court Reporter. The passage should have read: "What happened was, shortly thereafter RxBazaar was indicted by the Justice Department for selling contraband product across state lines."

Accordingly, this Court orders the Court Reporter to correct the oral argument transcript. The Court will also issue an amended Memorandum and Order, which deletes any reference to an indictment of Foley by a federal grand jury or an investigation of Foley by the Justice Department.

B. Reconsideration of this Court's Memorandum and Order

Local Rule 6.3 governs motions to reconsider in this District.*fn1

Consideration of such a motion is "committed to the sound discretion of the district court." Quartararo v. Catterson, 73 F. Supp. 2d 270, 273 (E.D.N.Y. 1999). Reconsideration will generally be denied "'unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" Bell Sports, Inc. v. System Software Assocs., Inc., 71 F. Supp. 2d 121, 125 (E.D.N.Y. 1999) (quoting Shrader v. CSX Transportation, Inc., 70 F.3d 255, 256-57 (2d Cir. 1995)).

Foley argues that this Court's Order overlooked two controlling legal decisions: Friedman v. Hartmann, 1994 WL 97104 (S.D.N.Y. March 23, 1994) and Prudential Insurance Co. v. Dewey, Ballantine, Bushby, Palmer & Wood et al., 80 N.Y.2d 377 (N.Y. 1922). In Friedman, plaintiffs, who were not clients of the defendant attorney, alleged that the defendant had negligently failed to disclose certain key documents, and negligently failed to advise plaintiff of necessary disclosures. 1994 WL 97104 at *5. The court held that the attorney had no duty of care to the non client plaintiff. Id. at *6-7. Similarly, in Prudential, a non client plaintiff brought a claim for negligence, alleging that the law firm's opinion letter had given the plaintiff false assurance that its security interest would be protected. 80 N.Y.2d at 381. The court held that while the law firm owed a duty of care in this situation, the defendants had not breached that duty.

Id. at 385-87.

Unlike the plaintiffs in Friedman and Prudential, Rx USA does not allege ordinary negligence in the complaint; rather, the company claims that Foley "intentionally, willfully, wantonly, recklessly and/or grossly negligently failed to use reasonable and prudent care . . . ."*fn2 (Compl. ¶ 113.) Thus, the cases Foley cites are inapposite. Controlling case law must involve allegations of grossly negligent, intentional, or reckless conduct. Such cases were discussed in the Court's original order. See Rx USA v. International Inc., v. Superior Pharmaceutical Co. et al., No. 04-5074 at 19 (Oct. 20, 2005) (citing Singer v. Whitman & Ransom, 442 N.Y.S.2d 26 (N.Y. App. Div. 1981); Newburger, Loeb, & Co., Inc. v. Gross, 563 F.2d 1057 (2d Cir. 1977)).

Defendant further argues that this Court's decision was incorrect because Foley made no statement or representation on which Plaintiff could have relied. (Def.'s Mot. Reconsider at 4.) However, RxBazaar listed Foley as a reference in its Credit Application. This reference may be considered a statement by Foley which attested to RxBazaar's business practices.*fn3 See Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996) (holding that in ruling on a 12(b)(6) motion "[t]he [c]court must . . . construe all reasonable inferences in favor of the Plaintiff.") RxBazaar sent the Credit Application to Rx USA, and Rx USA claims it relied on the application in conducting business with RxBazaar. Thus, Plaintiff has properly demonstrated reliance on a representation made by Foley.

Foley also argues that under controlling case law, lawyers have no duty to stand by a contract they prepare but do not sign. (Def.'s Mot. Reconsider at 5.) Foley then claims that the SEC filing it allegedly prepared but did not sign or certify is indistinguishable from a contract. Foley, however, misses an important difference: while lawyers normally draft contracts for parties, SEC filings are prepared for the public. The New York Court of Appeals has suggested that professionals may ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.