1

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

____________________________________

)

MEDTECH PRODUCTS INC., )

)

Plaintiff, )

)

v. )

)

RANIR, LLC and )

CVS PHARMACY, INC. )

)

Defendant. )

____________________________________)

)

MEDTECH PRODUCTS INC., )

)

Plaintiff, )

) 07 CV 3302 (KMK) (LMS)

v. )

)

DENTEK ORAL CARE, INC., ) PLAINTIFF’S REPLY

) IN SUPPORT OF ITS MOTION

Defendant. ) TO AMEND THE SCHEDULING

____________________________________) ORDER AND MOTION

) FOR LEAVE TO FILE ITS

MEDTECH PRODUCTS INC., ) SECOND AMENDED COMPLAINT

)

Plaintiff, ) ECF FILED

)

v. )

)

POWER PRODUCTS, INC. )

d/b/a SPLINTEK, )

)

Defendant. )

____________________________________)

Medtech Products Inc. (“Medtech”) hereby respectfully submits this Reply in Support of

its Motion to Amend the Scheduling Order and Motion for Leave To File Its Second Amended

Complaint in response to Defendant Dentek Oral Care Inc.’s Response to Plaintiff’s Motion for

Leave To File Its Second Amended Complaint, Motion To File Exhibits Under Seal, and Motion

Case 7:07-cv-03302-KMK-LMS Document 60 Filed 09/19/2007 Page 1 of 4
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to Amend the Scheduling Order, and Cross-Motion for an Extension of Time To Respond to

Second Amended Complaint (“DenTek’s Response” and “DenTek’s Cross-Motion,”

respectively) (Docket No. 57).

In its Response, DenTek states that it does not oppose Medtech’s motion for leave to file

its Second Amended Complaint. In light of this, and for the reasons set forth in Medtech’s

Motion to Amend, Medtech respectfully requests that this Court grant its motion for leave to file

its Second Amended Complaint. For the Court’s convenience, Medtech is submitting a proposed

order granting its motion for leave.

In addition, DenTek’s Cross-Motion seeks “an extension of time to answer, move, or

otherwise respond to Medtech’s Second Amended Complaint up to and until the first response of

the newly added defendants – Kelly M. Kaplan, Ray Duane, and C.D.S. Associates, Inc. — to

the amended pleading.” (Id. at p. 1.) While DenTek’s Cross-Motion asks that the defendants be

permitted file coordinated responses, there is no authority for such a request in the Federal Rules

of Civil Procedure.

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Further, DenTek is not surprised by the allegations in the Second Amended

Complaint because Medtech provided a copy of the Second Amended Complaint to DenTek’s

counsel on August 23, 2007, the day before Medtech’s motion for leave was filed, in an attempt

to gain DenTek’s consent to the filing. Thus, DenTek has already had the substantive allegations

of the Second Amended Complaint for over three weeks. If and when the Second Amended

Complaint is filed, DenTek will have another ten days from service to file an answer. FED. R.

CIV. P. 15(a). Therefore, Medtech does not believe an extension of time to answer is warranted.

1 The only reason cited by DenTek was that the “length of the new pleading” justifies the extension.

Ironically, it was DenTek that requested specificity in its opposition to the First Amended Complaint. (Docket No.

33 at pp. 4-5.)

Case 7:07-cv-03302-KMK-LMS Document 60 Filed 09/19/2007 Page 2 of 4
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In sum, Medtech respectfully requests that the Court grant its motion for leave to file its

Second Amended Complaint and deny DenTek’s Cross-Motion for an extension of time to

answer or otherwise respond to the Second Amended Complaint.

Dated: September 19, 2007.

Respectfully submitted,

ALSTON & BIRD LLP

By: /s/ Amy Manning

Karl Geercken (KG 5897)

Amy Manning (AM 0338)

90 Park Avenue

New York, New York 10016-1387

(212) 210-9471 (phone)

(212) 210-9444 (facsimile)

karl.geercken@alston.com

amy.manning@alston.com

W. Edward Ramage, TN BPR No. 16261

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, P.C.1800

Commerce Center, Suite 1000

211 Commerce Street

Nashville, Tennessee 37201

(615) 726-5600

eramage@bakerdonelson.com

Admitted Pro Hac Vice

Carl M. Davis II, GA Bar Number 207710

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, P.C.1800

Six Concourse Parkway

Suite 3100

Atlanta, Georgia 30328

(678) 406-8700

cdavis@bakerdonelson.com

Admitted pro hac vice

Case 7:07-cv-03302-KMK-LMS Document 60 Filed 09/19/2007 Page 3 of 4
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Lea Speed, TN BPR No. 19410

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, P.C

165 Madison Avenue

Suite 2000

Memphis, TN 38103

lspeed@bakerdonelson.com

Admitted pro hac vice

Micheline Kelly Johnson, TN BPR No. 13847

Clinton P. Sanko, TN BPR No. 23354

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, P.C.

1800 Republic Centre

633 Chestnut Street

Chattanooga, Tennessee 37450-1800

(423) 756-2010

mjohnson@bakerdonelson.com

csanko@bakerdonelson.com

Admitted pro hac vice

Of Counsel:

Todd R. David , GA BPR No. 206526

ALSTON & BIRD LLP

One Atlantic Center

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

todd.david@alston.com

Attorneys for Plaintiff

Medtech Products Inc.

Case 7:07-cv-03302-KMK-LMS Document 60 Filed 09/19/2007 Page 4 of 4