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, ) 

 ) Civil Action No. 07 CV 03302-UA-LMS 

 v. ) 

 ) 

DENTEK ORAL CARE, INC., ) PLAINTIFF’S MEMORANDUM OF 

 ) LAW IN SUPPORT OF ITS MOTION

 Defendant. ) FOR LEAVE TO FILE ITS

____________________________________) AMENDED COMPLAINT AGAINST 

 ) DENTEK ORAL CARE, INC. 

MEDTECH PRODUCTS INC., ) 

 ) ECF FILED 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

POWER PRODUCTS, INC. ) 

 d/b/a SPLINTEK, ) 

 ) 

 Defendant. ) 

____________________________________) 

The Plaintiff, Medtech Products Inc. (“Medtech”), by counsel, pursuant to Rules 15(a) 

and 21 of the Federal Rules of Civil Procedure, hereby submits this Memorandum of Law in 

Support of its Motion for Leave to File its Amended Complaint against Defendant DenTek Oral 

Case 7:07-cv-03302-KMK-LMS Document 24 Filed 06/06/2007 Page 1 of 6
2 

Care, Inc. (“DenTek”) to add certain allegations relating to DenTek’s current advertising, as well 

as add a new Defendant, Ms. Kelly Kaplan (“Ms. Kaplan”). A copy of the proposed Amended 

Complaint is attached as Exhibit 1 to Plaintiff’s Motion for Leave to File its Amended Complaint 

(“Mot. to Amend”). 

ARGUMENT

A. STANDARD OF LAW. 

The standards applicable to Medtech’s Motion to Amend are liberal and permissive. 

Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that a party may 

amend his pleading “by leave of court or by written consent of the adverse party; and leave shall 

be freely given when justice so requires.” FED. R. CIV. P. 15(a) (emphasis added). Rule 21 of 

the Federal Rules of Civil Procedure allows that “[p]arties may be dropped or added by order of 

the court on motion of any party or of its own initiative at any stage of the action and on such 

terms as are just.” FED. R. CIV. P. 21. In this situation, “the same basic standard for adding or 

dropping a party will apply whether [Medtech, as the pleader,] moves under Rule 15(a) or Rule 

21.” Wright, Miller & Marcus, Federal Practice and Procedure, v. 6, § 1471 (West 1990, 

updated); Kaminsky v. Abrams, 41 F.R.D. 168, 170 (S.D.N.Y. 1966) (affirming that the standards 

utilized by a Court for Rule 15(a) motions are to guide a Court in adjudicating Rule 21 motions.)

The United States Supreme Court has confirmed that the mandate of Rule 15(a)—that 

leave to amend “shall be freely given when justice so requires”—is to be heeded. Foman v. 

Davis, 371 U.S. 178, 182 (1962). In Foman, the Supreme Court explained that in the absence of 

an explicit reason not to, leave to amend should be given. Id. These reasons include such factors 

as undue delay in filing the amendment, bad faith or dilatory motive, undue prejudice to the 

opposing party, and futility of amendment. Id. 

Case 7:07-cv-03302-KMK-LMS Document 24 Filed 06/06/2007 Page 2 of 6
3 

Rule 15(a)’s liberal amendment standard is well-established, with the Advisory 

Committee Notes stating that “[p]rovision for amendment of pleading before trial, by leave of 

court, is in almost every code. If there is no statute the power of the court to grant leave is said 

to be inherent.” Advisory Committee Notes, 1937 Adoption of Rule 15 (citing Clark, Code 

Pleading (1928), pp. 498, 509). See also Wright, Miller & Marcus, Federal Practice and 

Procedure, v. 6, § 1471 (West 1990, updated). Federal Practice and Procedure notes that “Rule 

15 reflects two of the most important policies of the federal rules:” 

First, the rule’s purpose is to provide maximum opportunity for each claim to be 

decided on its merits rather than on procedural technicalities. This is 

demonstrated by the emphasis Rule 15 places on the permissive approach 

that the district courts are to take to amendment requests, no matter what 

their character may be . . . Second, Rule 15 reflects the fact the federal rules 

assign the pleadings the limited role of providing the parties with notice of the 

nature of the pleader’s claim or defense and the transaction, event, or occurrence 

that has been called into question . . . . 

Id. (emphasis added). See also Siegel v. Converters Trans., Inc., 714 F.2d 213, 216 (2d Cir. 

1983) (citing Federal Practice and Procedure and the liberal pleading standards of Rule 15(a)). 

B. THE AMENDMENT SHOULD BE PERMITTED

In the instant case, the Foman factors and fundamental fairness support a granting of this 

Motion for Leave. 

 The Proposed Amended Complaint makes two substantive changes to the Complaint. 

First, Ms. Kaplan is added as a defendant. (Mot. to Amend at Ex. 1, ¶¶ 7, 13, 15, 16, 23-27, 44-

46, 59, 102-119, and Prayer for Relief, ¶¶ 6-8, 10, 12, 13, and 15.) Ms. Kaplan was a former 

Vice President of Marketing of Dental Concepts LLC, Medtech’s predecessor-in-interest. (Id. ¶¶ 

7, 23.) As an executive, Ms. Kaplan would have had substantial access to confidential and 

proprietary information and material relating to the product at issue in this case: THE 

Case 7:07-cv-03302-KMK-LMS Document 24 Filed 06/06/2007 Page 3 of 6
4 

DOCTOR’S® NIGHTGUARDTM dental protector. (Id.) Any such confidential and proprietary 

information and material is subject to an agreement with Ms. Kaplan to maintain its 

confidentiality. (Id. ¶ 24-27.) Medtech asserts three causes of action claiming that Ms. Kaplan 

provided confidential and proprietary information to DenTek: Count VII, Breach of Contract 

Against Ms. Kaplan; Count VIII, Tortious Interference with Contractual Relations Against 

DenTek; and Count IX, Civil Conspiracy Against DenTek and Ms. Kaplan. 

Second, the Proposed Amended Complaint adds certain recently discovered information 

relating to DenTek’s advertising campaign. (Mot. to Amend at Ex. 1, ¶¶ 49-52.) This new 

campaign information shows the manner in which Medtech’s NIGHTGUARDTM mark is being 

used by DenTek to promote its competing dental protector product. 

Medtech is acting in good faith in making this Motion to Amend and putting the issue of 

Ms. Kaplan’s agreement and actions squarely before this Court. The Motion to Amend will not 

prejudice Ms. Kaplan because this case has just started. Moreover, it will not prejudice DenTek 

because DenTek’s conduct in bringing its infringing dental protector to the market, and attempts 

to trade on Medtech’s goodwill, are already at issue in this case—both through Medtech’s 

Complaint, as well as DenTek’s various Counterclaims. See Answer and Counterclaim of 

DenTek Oral Care, Inc. (Docket No. 15) at pp. 14-18. 

There is no undue delay as Medtech has filed its Motion to Amend within a week of the 

filing of the Answer, before any discovery has been served by Medtech, and within the time 

period provided in the parties’ Discovery Plan. In particular, the request is made within the time 

period allowed for joinder and amendment in the Civil Case Discovery Plan and Scheduling 

Order (Docket No. 17), which provides that joinder of additional parties must be accomplished 

by June 15, 2007, and amended pleadings may be filed until June 15, 2007. 

Case 7:07-cv-03302-KMK-LMS Document 24 Filed 06/06/2007 Page 4 of 6
5 

Moreover, Medtech has given timely notice of its intentions to put this issue before the 

Court, both to Ms. Kaplan, the party to be added, and DenTek. On May 25, 2007, shortly after 

learning that Ms. Kaplan was associated with DenTek, Medtech sent a letter to DenTek’s 

counsel, and hand delivered a copy of that letter to Ms. Kaplan. (A copy of the letter to DenTek 

and Ms. Kaplan is attached hereto as Exhibit A.) This letter advised both DenTek and Ms. 

Kaplan of the claim that “any use of Dental Concepts confidential information and material 

would constitute a material violation by Ms. Kaplan of the [agreement], and would constitute 

unfair competition by DenTek.” (Id. at p. 3.) 

At the conference of the parties on May 31, 2007, Medtech informed DenTek of the three 

claims that would be asserted against Ms. Kaplan. On June 1, 2007, Medtech specifically 

requested via e-mail to counsel that DenTek consent to an amendment of the Complaint (a copy 

of the request is attached as Exhibit B.) DenTek refused to consent, citing jurisdiction and the 

current schedule. See id. DenTek’s reasons are insufficient to deny the amendment under 

Foman and the liberal standards of Rules 15(a) and 21. 

CONCLUSION

Under the liberal standards of Rules 15(a) and 21 of the Federal Rules of Civil 

Procedure, Medtech respectfully requests that this Court grant it leave to file its Proposed 

Amended Complaint and add Ms. Kaplan as a defendant in this action. 

Dated: June 6, 2007

Respectfully submitted, 

ALSTON & BIRD LLP 

By: s/ Karl Geercken 

Karl Geercken (KG 5897) 

Amy Manning (AM 0338) 

90 Park Avenue 

New York, New York 10016-1387 

Case 7:07-cv-03302-KMK-LMS Document 24 Filed 06/06/2007 Page 5 of 6
6 

(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

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 

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 

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 

Attorneys for Plaintiff 

Medtech Products Inc. 

Case 7:07-cv-03302-KMK-LMS Document 24 Filed 06/06/2007 Page 6 of 6