UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MEDTECH PRODUCTS, INC.,

 Plaintiff,

v.

RANIR, LLC, et al.,

 Defendants.

07 Civ. 3302 (KMK) (LMS)

ECF Case

MEDTECH PRODUCTS, INC.,

 Plaintiff,

v.

DENTEK ORAL CARE, INC., et al.

 Defendants.

 

MEDTECH PRODUCTS, INC.,

 Plaintiff,

v.

POWER PRODUCTS, INC.,

 Defendant.

DEFENDANT DENTEK ORAL CARE, INC.’S RESPONSE TO

PLAINTIFF MEDTECH’S OBJECTIONS TO THE REPORT & RECOMMENDATION

OF MAGISTRATE JUDGE SMITH DATED JUNE 2, 2008

PROSKAUER ROSE LLP

James H. Shalek

Alan Federbush

Theodore K. Cheng

1585 Broadway

New York, NY 10036-8299

(212) 969-3000

Case 7:07-cv-03302-KMK-LMS Document 165 Filed 07/07/2008 Page 1 of 14
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TABLE OF CONTENTS

Page

ARGUMENT..............................................................................................................................1

I. The Report & Recommendation Properly Recommends Dismissal of the Count 

for Tortious Interference With Contractual Relations.......................................................1

A. There Are No Allegations in the SAC of the Second Element - Actual 

Knowledge of the Contracts.................................................................................2

B. The Third Element Also Has Not Been Adequately Plead ....................................4

II. The Report & Recommendation Properly Recommends Dismissal of the Count 

for Civil Conspiracy ........................................................................................................5

III. Leave To Amend The SAC Should Not Be Granted If Medtech’s Objections Are 

Overruled ........................................................................................................................7

CONCLUSION.........................................................................................................................11

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Defendant DenTek Oral Care, Inc. (“DenTek”) respectfully submits this response to 

Plaintiff Medtech Products, Inc.’s Objections To Magistrate Judge’s Report and

Recommendation Regarding Defendants’ Motions To Dismiss (“Medtech’s Objections”).

In the June 2, 2008 Report and Recommendation (“R&R”), among other things, 

Magistrate Judge Smith recommended dismissal of Medtech’s counts against DenTek in the 

Second Amended Complaint (“SAC”) for tortious interference with contractual relations (Count 

X), civil conspiracy (Count XII), and tortious interference with advantageous business 

relationship (Count XIV). Medtech objects only to the first two of those recommendations.1

ARGUMENT

I. THE REPORT & RECOMMENDATION PROPERLY RECOMMENDS 

DISMISSAL OF THE COUNT FOR TORTIOUS INTERFERENCE WITH 

CONTRACTUAL RELATIONS

Count X of Medtech’s SAC alleges that DenTek tortiously interfered with five 

agreements Dental Concepts had with defendants Ray Duane (“Duane”), C.D.S. Associates, Inc.

(“CDS”), and Kelly Kaplan (“Kaplan”) – namely, Duane/CDS’ Consulting Agreement (SAC, 

Ex. A), Duane/CDS’ and Kaplan’s respective Proprietary Information and Inventions 

Agreements (“PIIA”) (SAC, Exs. C and D), and Duane and Kaplan’s respective General 

Releases (SAC, Exs. G and H). SAC ¶ 257.

The parties agree that the elements of a claim for tortious interference include:

(1) the existence of a valid contract;2

 

1 Accordingly, DenTek further requests that the Court adopt the unopposed recommendation in 

the R&R to dismiss Count XIV.

2

 A tortious interference claim cannot survive based on Duane or Kaplan’s PIIA’s. As properly 

noted in the R&R, “the confidentiality provisions of the PIIAs are superseded by the General 

Releases.” R&R at 21. The General Releases – executed by Duane and Kaplan in connection 

with Medtech’s acquisition of Dental Concepts – each contain a merger and integration clause, 

providing: “The parties hereto acknowledge that this Release constitutes a full, final, and 

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(2) knowledge of that contract;

(3) intentional procurement of a breach of that contract without justification;

(4) actual breach of the contract; and

(5) resulting damage.

See DenTek’s Motion To Dismiss (Dkt. #109) at 22; Medtech’s Objections (Dkt. #159) at 2; see 

also R&R at 25 (citing Kirch v. Liberty Media Corp., 449 F.3d 388, 401 (2d Cir. 2006)).

A. There Are No Allegations in the SAC of the Second Element - Actual 

Knowledge of the Contracts 

The second element requires that DenTek have had “actual knowledge of a specific 

contract.” Int’l Minerals and Res., Inc. v. Pappas, No. 87 Civ. 3988 (PKL), 1992 WL 354504, at 

*3 (S.D.N.Y. Nov. 17, 1992). “To avoid dismissal of a tortious interference with contract claim 

a plaintiff must support his claim with more than mere speculation.” Burrowes v. Combs, 25 

A.D.3d 370, 373 (1st Dept. 2006). Speculation is all Medtech’s SAC contains in its averments, to 

wit:

DenTek knew or should have known of the valid contracts between Duane and 

Dental Concepts/Medtech and Kaplan and Dental Concepts/Medtech.

DenTek is a sophisticated entity well aware of the industry practice of securing 

confidentiality agreements, as evidenced by its own conduct with Duane, Kaplan 

and the Tufts Doctors.

SAC ¶¶ 258-259. These averments cannot make out a claim of tortious interference. See Sedona 

Corp. v. Ladenburg Thalmann & Co., 2005 U.S. Dist. LEXIS 16382, at *61 (S.D.N.Y. Aug. 8, 

2005) (allegations that defendant “knew or should have known” of contract are “plainly 

 

complete settlement of their differences and supersedes and replaces any and all other written or 

oral exchanges, agreements, understandings, arrangements, or negotiations between or among 

them.” SAC, Ex. G at 3-4, ¶ 10; id., Ex. H at 3-4, ¶ 10.

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insufficient to address the most basic elements of the tortious interference with contract cause of 

action”). 

The cases relied upon by Medtech in this regard are inapposite. In Rahl v. Bande, 328 

B.R. 387 (S.D.N.Y. 2005), the elements of the alleged count included a “knew or ought to have 

known” standard. Such is not the case for a claim of tortious interference, which requires that 

the defendant have actual knowledge. Int’l Minerals, supra. Moreover, in Rahl, this Court noted 

that “conclusory allegations that fail to give notice of the basic events and circumstances are 

insufficient as a matter of law.” Rahl, 328 B.R. at 417.3

 In Rahl, the Court denied the motion to 

dismiss, noting that this was not the case, as “plaintiff has sufficiently alleged facts concerning 

the various D&O defendants’ knowledge ... to survive a motion to dismiss.” Id. at 418 n.14. 

For example, the plaintiff alleged that the defendant “served as a director and officer of Limited 

at the time of the illegal transaction. As he was responsible for Limited’s corporate direction, he 

is liable for causing Limited to issue the illegal dividend.” Id. at 421. 

In contrast, as the Magistrate stated in the R&R, “there are no allegations in the Amended 

Complaint that Duane or Kaplan told DenTek about the Consulting Agreement, PIIAs, or 

General Releases, that DenTek saw copies of the contracts, or any other allegations stating that 

DenTek was otherwise informed of the contracts.” R&R at 26-27. There are only the 

conclusory allegations that DenTek “knew or should have known” of the contracts in question. 

See SAC ¶¶ 258-59. In fact, the SAC makes plain that DenTek was unaware of any obligations 

between Dental Concepts and Duane/CDS. See, e.g., SAC ¶ 113 (“when asked [by DenTek] 

whether he was subject to any non-competition covenants with Dental Concepts or Medtech, 

 

3

See also Starr v. Time Warner, Inc., No. 07 Civ. 5871 (DC), 2007 WL 4144627, at *2 

(S.D.N.Y. Nov. 21, 2007) (“In any event, ‘bald contentions, unsupported characterizations, and 

legal conclusions are not well-pleaded allegations’ and will not defeat a motion to dismiss.”)

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Duane responded that he was not”); id. ¶ 116 (“Duane allegedly failed to inform Fox that he 

could not work on the [DenTek] project, given that he was bound by the terms of a noncompetition covenant.”) See R&R at 27. Medtech has taken discovery prior to filing the SAC, 

including Duane’s deposition, and still cannot allege that DenTek knew of the contracts with 

which they purportedly interfered. Because of the omission of this element alone, Medtech’s 

claim for tortious interference with contractual relations fails as a matter of law.

B. The Third Element Also Has Not Been Adequately Plead

Medtech cites Cerveceria Modelo, S.A. De C.V. v. USPA Accessories LLC, No. 07 Civ 

7998 (HB), 2008 WL 1710910, at *4 (S.D.N.Y. Apr. 10, 2008) for the proposition that it “is 

under no obligation to plead ‘wrongful means’” as an element of its tortious interference with 

contract claim. This ignores, however, the precedent of this Court to the contrary, and, oddly 

enough, relied upon by Medtech – Darby Trading Inc. v. Shell Int’l Trading and Shipping Co. 

Ltd., No. 07-CV-0400 (KMK), 2008 WL 852787 (S.D.N.Y. Mar. 31, 2008) (Karas, J.) – which 

concludes just the opposite. In discussing a tortious interference with contract claim, this Court 

held: “as with Plaintiff’s previous tortious interference claim [with business relations], Plaintiff 

has failed to properly allege ‘wrongful means,’ a necessary element of the claim.” Id. at *16. 

See also Wolff v. Rare Medium, Inc., 171 F. Supp. 2d 354, 359 (S.D.N.Y. 2001) (“Under New 

York law, a tortious interference with contract claim must plead that a defendant used ‘wrongful 

means’ to induce the third party to breach the contract.”)

Medtech does not dispute that the allegations of the SAC referenced in the R&R do not 

adequately set out the third element of a tortious interference with contract claim, nor do 

Medtech’s Objections direct this Court to any specific averments in the SAC that do.

Therefore, this Court should overrule Medtech’s objection and adopt the R&R’s 

recommendation to dismiss the tortious interference with contractual relations claim.

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II. THE REPORT & RECOMMENDATION PROPERLY RECOMMENDS 

DISMISSAL OF THE COUNT FOR CIVIL CONSPIRACY4

In order to state a claim for conspiracy, there must be allegations of an independent 

actionable tort.5 See, e.g., Agron v. Douglas W. Dunham, Esq. & Assocs., No. 02 Civ. 10071, 

2004 WL 691682, at *6 (S.D.N.Y. Mar. 31, 2004); Antonios A. Alevizopoulos & Assocs. v. 

Comcast Int’l Holdings, Inc., 100 F. Supp. 2d 178, 187-88 (S.D.N.Y. 2000). In addition to 

properly alleging an underlying tort, to set out a claim for civil conspiracy, Medtech must allege 

“a corrupt agreement between two or more parties, an overt act, intentional participation in the 

furtherance of the conspiracy, and a causal connection to the claimed damages.” Donini Int’l, 

S.P.A. v. Satec (U.S.A.) LLC, No. 03 Civ. 9471 (CSH), 2004 U.S. Dist. LEXIS 13148, at *8-9 

(S.D.N.Y. July 12, 2004). Though not subject to the more stringent pleading requirements of 

Fed. R. Civ. P. 9(b), “the complaint must allege some factual basis for a finding of a conscious 

agreement among the defendants.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 26 

n.4 (2d Cir. 1990); accord Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir. 1981) (“a 

bare conclusory allegation of conspiracy does not state a cause of action”); Donini, 2004 U.S. 

Dist. LEXIS at *9 (“Conclusory claims of conspiracy that are not pleaded with sufficient factual 

grounding should be dismissed.”) Specifically, “to survive a motion to dismiss, a complaint 

must contain more than general allegations in support of the conspiracy. Rather, it must allege 

 

4

 The civil conspiracy count was asserted against all defendants. Thus, in addition to the 

response set forth herein, DenTek incorporates by reference any responses by co-defendants 

Duane and Kaplan to Medtech’s objection to the R&R relating to the civil conspiracy count.

5

The R&R recommends a finding that the SAC states a claim against each of the defendants for 

the underlying tort of trade secret misappropriation. R&R at 23. Thus, as an initial matter, if the 

Court sustains DenTek’s objection to the independent recommendation in the R&R upholding 

the count for trade secret misappropriation (see Dkt. #158, at pp. 5-18), the recommendation to 

dismiss the civil conspiracy count should be adopted as a matter of law for this reason alone.

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the specific times, facts, and circumstances of the alleged conspiracy.” Brownstone Inv. Group, 

LLC v. Levey, 468 F. Supp. 2d 654, 661 (S.D.N.Y. 2007). 

In its objections, Medtech states that the SAC sufficiently sets out that there was a “plan 

hatched among DenTek, Duane, and Kaplan to utilize Medtech’s trade secrets in order to 

improperly manufacture and market a competing dental protector.” Medtech’s Objections at 8. 

However, it is evident that the SAC contains no allegations relating to the first part -- a “plan” 

among the defendants to “utilize Medtech’s trade secrets” -- but rather, only allegations that 

DenTek took steps to “market a competing dental protector.” An agreement to bring a 

competing product to market (and any steps taken in furtherance of such an agreement) is not a 

tortious act and cannot support a claim of civil conspiracy. See Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 597 n.21 (1986) (“conduct that is as consistent with 

permissible competition as with illegal conspiracy does not, without more, support even an 

inference of conspiracy.”) Accordingly, to survive dismissal, the SAC must provide sufficient 

allegations of a “conscious agreement among the defendants” to use Medtech’s trade secrets. 

Hecht, supra; see also Grove Press, Donini, Brownstone. 

In support of its objection, Medtech points to five paragraphs from the SAC (¶¶ 120, 128, 

130, 163, and 270) that supposedly set out relevant allegations of an agreement among the 

defendants. See Medtech’s Objections at 6. But none of these allege any “specific times, facts, 

[or] circumstances” of an agreement between the defendants to use Medtech’s trade secrets. See

Brownstone, 468 F. Supp. 2d at 661. SAC ¶ 120 states nothing more than the fact that DenTek 

hired Duane to assist in developing a competing product. SAC ¶¶ 128, 163 aver that DenTek got 

its product to market quickly. SAC ¶ 130 avers that the defendants called upon various vendors 

to develop its nightguard, and SAC ¶ 270 is nothing but a conclusory statement, devoid of any 

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facts, stating that, “upon information and belief,” there was a conspiracy. None of these five 

paragraphs allege facts of an agreement amongst the defendants to use Medtech’s trade secrets. 

Indeed, “there are no allegations in the [SAC] that the Defendants specifically agreed to use the 

trade secrets that Duane and Kaplan [allegedly] gleaned from their employment with Medtech in 

order to produce DenTek’s competing product.” R&R at 24. Put simply, there are no allegations 

in the SAC of a “plan” to use Medtech’s trade secrets. Thus, Medtech’s claim of civil 

conspiracy must fail as a matter of law. Accordingly, Medtech’s objection to the 

recommendation to dismiss the count for civil conspiracy should be overruled. 

III. LEAVE TO AMEND THE SAC SHOULD NOT BE GRANTED IF 

MEDTECH’S OBJECTIONS ARE OVERRULED

The R&R, quite understandably, makes no recommendation as to whether Medtech 

should be granted leave to amend those counts of the SAC that are dismissed because, in 

opposing defendants’ Rule 12(b)(6) motion, Medtech never requested such relief. Having made 

such a request for the first time informally in its objections to the R&R, the request for leave to 

amend has been waived.6“Courts have held that while the Magistrate Judge Act, 28 U.S.C. 

§ 631 et seq., permits de novo review by the district court if timely objections are filed, absent 

compelling reasons, it does not allow parties to raise at the district court stage new arguments or 

issues that were not presented to the magistrate... Hence, Petitioner’s failure to raise this claim 

before the magistrate constitutes waiver.” Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 

2000)(citations omitted); accord Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) 

(“Issues raised for the first time in objections to the magistrate judge’s recommendation are 

deemed waived.”); Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 

 

6

It is within the Court’s discretion to deny leave to amend “when leave is requested informally in 

a brief filed in opposition to a motion to dismiss.” Joblove v. Barr Labs. Inc., 466 F.3d 187, 220 

(2d Cir. 2006).

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985, 990 (1st Cir. 1988) (“The rule [72(b)] does not permit a litigant to present new initiatives to 

the district judge.”); see also Odom v. Kerns, No. 99-CV-10668 (KMK), 2008 U.S. Dist. LEXIS 

47336, at *16 (S.D.N.Y. June 17, 2008)(Karas, J.) (“A party may not, however, introduce an 

entirely new basis for summary judgment by means of objections to a report and 

recommendation.”); Hightower v. Kelly, 657 F. Supp. 516, 518 (S.D.N.Y. 1987) (“The Court has 

serious doubts as to whether a petitioner may properly raise new grounds for a writ of habeas 

corpus for the first time in objections to a Magistrate’s Report.”)

However, even if Medtech has not waived its right to request leave to amend its SAC, 

such leave should be denied. Where amendment would be futile, denial of leave to amend is 

proper. Joblove, 466 F.3d at 220; see Foman v. Davis, 371 U.S. 178, 182 (1962). Also, leave to 

amend may be denied “where the moving party knows or should have known of the facts upon 

which the proposed amendment is based, but failed to include them in the original pleading.” 

Priestley v. American Airlines, Inc., No. 89 Civ. 8265 (JMC), 1991 U.S. Dist. LEXIS 4804, at *3 

(S.D.N.Y. Apr. 12, 1991); Turkenitz v. Metromotion, Inc., No. 97 Civ. 2513, 1997 U.S. Dist. 

LEXIS 19762, at *25 (S.D.N.Y. Dec. 11, 1997); Whelan v. Bank United, No. 97 Civ. 0479, 1999 

U.S. Dist. LEXIS 6374, at *5 (S.D.N.Y. May 5, 1999); cf. Lozano v. Ocwen Fed. Bank, FSB, 489 

F.3d 636, 644 (5th Cir. 2007) (“district court may consider that the moving party failed to take 

advantage of earlier opportunities to amend.”)

As set forth in greater detail in DenTek’s objections to the R&R (Dkt. #158, at 2), in 

June, 2007, Medtech moved for leave to file a First Amended Complaint (“FAC”) alleging, 

among other things, that DenTek conspired with Kaplan to misappropriate unspecified trade 

secrets from Medtech, and that DenTek tortiously interfered with Kaplan’s General Release 

agreement. (Dkt. #23, Ex. 1, Part 1, at 29-30.) At a hearing before Magistrate Judge Smith on 

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July 9, 2007, Medtech sought limited discovery to support its newly added claims. After the 

Court granted its request, Medtech took significant discovery, including the depositions of Ray 

Duane and two of the Tufts doctors, as well as receiving documents from all of them. Shortly 

thereafter, Medtech moved for leave to file the SAC, retaining the claims in the FAC, and adding 

Duane and CDS as parties. Having taken the discovery they sought and twice amending the 

Complaint, Medtech was in a position to know, or at least should have known, the facts upon 

which the claims alleged in the SAC were based.7

 Having failed to adequately allege them on 

multiple occasions, Medtech should not be allowed yet a further attempt. To the extent that 

Medtech is seeking leave to amend to circumvent dismissal of its claims, such a request is 

improper. Turkenitz, 1997 U.S. Dist. LEXIS at *25 (“Leave to amend a complaint will generally 

be denied when the motion to amend is filed solely in an attempt to prevent the Court from 

granting a motion to dismiss ... particularly when the new claim could have been raised earlier.”)

Moreover, the only suggestion of what facts Medtech can add to its pleading comes in 

connection with Medtech’s objection to dismissal of the tortious interference count (Count X). 

Medtech states, without elaboration, that it would “incorporate documents it has obtained from 

DenTek through discovery that relate to DenTek’s possession of, or access to, certain 

confidential documents from Dental Concepts.” Medtech’s Objections at 4. Accordingly, leave 

to amend can still be denied for at least two additional reasons. First, Medtech, though avering 

that it has documents that would now support additional allegations, did not submit them or a 

proposed revised Complaint to the Court for review. See Richardson Greenshields Sec. Inc. v. 

Mui-Hin Lau, 113 F.R.D. 608, 610 (S.D.N.Y. 1986) (“A proposed amendment or new pleading 

 

7 Plainly, the statement in Medtech’s Objections that “the allegations in the SAC were made at a 

time when virtually no discovery had taken place” is a misrepresentation. Medtech’s Objections 

at 7.

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should be submitted with the motion.”) Second, even still, Medtech does not state that it has 

facts or documents supporting a contention that DenTek was aware of any of the agreements

between Duane or Kaplan and Dental Concepts with which they purportedly interfered. Thus, 

any attempt at amendment would be futile.

Further, Medtech does not claim to now have any additional facts at its command in 

support of its tortious interference or civil conspiracy counts. It simply seeks to have the Court 

sanction its continued fishing expedition, stating: “if this Court should hold that any of 

Medtech’s claims should be dismissed, that dismissal should be without prejudice and with leave 

for Medtech to amend its pleadings upon discovery of additional information supporting any 

dismissed claim.” Medtech’s Objections at 1. Medtech’s request is a blatant abuse of the legal 

system. Richard Greenshields Sec., 113 F.R.D. at 611 (“The discovery rules are designed to 

support a properly pleaded cause of action and to prepare defenses to charges made – not to 

discover whether a claim exists.”) Defendants should not be required to respond to a moving 

target while Medtech speculates that there was some illicit plan between defendants to 

misappropriate their purported, though still unidentified, trade secrets. In re Terrorist Attacks on 

September 11, 2001, 471 F. Supp. 2d 444, 448 (S.D.N.Y. 2007) (denying reconsideration of 

refusal to allow leave to amend where plaintiff could “offer no facts, only speculation and 

conjecture, in support of their allegation that Saudi American Bank knew or had any reason to 

know such an arrangement existed between Bin Laden and Sudan at the time.”) Otherwise, no 

motion to dismiss could ever be granted.

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CONCLUSION

For the foregoing reasons, DenTek respectfully requests that the Court overrule 

Medtech’s objections to the R&R and deny Medtech leave to amend the SAC.

Dated: July 7, 2008 Respectfully submitted,

New York, New York PROSKAUER ROSE LLP

By: s/ Alan Federbush 

Alan Federbush (afederbush@proskauer.com)

James H. Shalek (JShalek@proskauer.com)

Theodore K. Cheng (TCheng@proskauer.com)

1585 Broadway

New York, NY 10036-8299

(212) 969-3000

Attorneys for Defendant DenTek Oral Care, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on July 7, 2008, I caused a true and correct copy of 

DEFENDANT DENTEK ORAL CARE, INC.’S RESPONSE TO MEDTECH’S 

OBJECTIONS TO THE REPORT & RECOMMENDATION OF MAGISTRATE JUDGE 

SMITH DATED JUNE 2, 2008 to be served upon the following parties by use of the Court’s 

ECF system:

Attorneys for Plaintiff Medtech Products, Inc.:

Karl Geercken

ALSTON & BIRD LLP

90 Park Avenue

New York, NY 10016

AND

Thomas O. Helton

BAKER, DONELSON, BEARMAN

 CALDWELL & BERKOWITZ, P.C.

1800 Republic Centre

633 Chestnut Street

Chattanooga, TN 37450-1800

Attorney for Defendant Kelly Kaplan:

John P. Fulco

Salon Marrow Dyckman Newman & Broudy LLP

292 Madison Avenue

New York, NY 10017

Attorney for Defendants Ray Duane and CDS Associates:

Michael A. Freeman

Greenberg Freeman LLP

24 West 40th Street - 17th Floor

New York, NY 10018

s/ Alan Federbush

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