1749764-1 

Michael J. Feldman, Esquire 

OLENDERFELDMAN LLP 

2840 Morris Avenue 

Union, New Jersey 07083 

Phone: (908) 964-2486 

Fax: (908) 810-6631 

Anthony Volpe, Esquire 

Ryan W. O’Donnell, Esquire 

VOLPE AND KOENIG, P.C. 

United Plaza 

30 South 17th Street 

Philadelphia, Pennsylvania 19103 

Phone: (215) 568-6400 

Fax: (215) 568-6499 

Kristine L. Butler, Esquire 

VOLPE AND KOENIG, P.C. 

One Palmer Square 

Suite 315 

Princeton, New Jersey 08542 

Phone: (609) 924-7900 

Fax: (609) 924-7902 

Attorneys for Defendant 

Advanced Health Media, LLC 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

TRENTON DIVISION

CALL, INC. d/b/a MEDFORCE, 

 Plaintiff, 

v. 

Advanced Health Media, LLC, 

 Defendant. 

 

Civil Action No. 3:11-CV-03723-FLW-TJB 

Hon. Freda L. Wolfson, U.S.D.J. 

Hon. Tonianne J. Bongiovanni, U.S.M.J. 

ELECTRONICALLY FILED 

Return Date: October 3, 2011 

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS 

COUNT VII PURSUANT TO FED. R. CIV. P. 12(b)(6) 

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TABLE OF CONTENTS 

 Page 

I. INTRODUCTION .....................................................................................................1 

II. ARGUMENT.............................................................................................................1 

 

III. CONCLUSION..........................................................................................................4 

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1749764-1 

I. INTRODUCTION

 Defendant Advanced Health Media, LLC (“AHM”) submits this Memorandum of Law in 

further support of its Motion to Dismiss Count VII of the Complaint of Plaintiff CALL, INC. 

d/b/a MedForce (“MedForce”) pursuant to Fed. R. Civ. P. 12(b)(6).1

 Though AHM’s moving 

Memorandum of Law addressed MedForce’s original Complaint, this Reply Memorandum of 

Law will address MedForce’s Amended Complaint and its Memorandum in Opposition to 

AHM’s Motion. 

II. ARGUMENT

 As a preliminary matter, the applicable legal standards that govern AHM’s Motion to 

Dismiss are set forth in AHM’s moving Memorandum, and the caselaw cited by MedForce does 

not alter the applicable standards or suggest otherwise. Ultimately, this Motion comes down to a 

determination of whether MedForce’s Amended Complaint alleges, beyond a speculative level 

that MedForce “would have received the expected economic advantage” but for the alleged 

“wrongly, intentional interference” by AHM with MedForce’s expected economic advantage. 

See Fineman v. Armstrong World Indus., 980 F. 2d 171, 186 (3d Cir. 1992) (internal citations 

omitted). As set forth herein and in AHM’s moving Memorandum, MedForce is unable to meet 

 

1

 The remainder of AHM’s Motion to Dismiss was withdrawn after MedForce filed an 

Amended Complaint after AHM filed its original Motion to Dismiss. AHM did not file a 

separate Answer to Counts I through VI of MedForce’s Amended Complaint as many of the 

allegations contained therein relate directly to Count VII – the subject of the remainder of this 

Motion to Dismiss. Therefore, neither the Rules nor logic compelled a partial Answer to the 

Amended Complaint when the Court has not yet determined which allegations will survive the 

Motion to Dismiss. AHM obviously has not waived its rights to file its responsive pleading, 

including Counterclaims, to the remainder of the Amended Complaint after the Motion to 

Dismiss is decided, and in fact, will do so.

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this burden, and therefore, Count VII of its Amended Complaint must be dismissed with 

prejudice. 

 Accepting the allegations in MedForce’s Amended Complaint as true, as the Court must 

for purposes of this Motion, MedForce still fails to state a cause of action with respect to Count 

VII. Rather than repeat the reasons Count VII must be dismissed as set forth in AHM’s moving 

Memorandum, AHM hereby addresses the major defects in MedForce’s opposition papers. 

 To prevail on a tortious interference claim, a plaintiff must prove malice, which “is 

defined to mean that the harm was inflicted intentionally and without justification or excuse.” Id. 

“When a business targets its competitor's customers, it exercises a valid business judgment and 

that alone does not constitute tortious interference with prospective economic advantage.” 

Foxtons, Inc. v. Cirri Germain Realty, 2008 WL 465653, *7 (N.J. App. Div. 2008) (internal 

quotations and citations omitted). Simply making the conclusory statement that defendant acted 

“maliciously” will not suffice. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

Though given the opportunity to amend its Complaint and file an Opposition Memorandum, 

MedForce ignores the import of Foxtons in its allegations and legal argument, and instead, 

pretends that the case does not exist. Indeed, MedForce’s allegations, if taken as true, solely 

allege that AHM was acting “intentionally and without justification or excuse” because AHM 

was purportedly targeting its customers – or in this case, potential purchasers of MedForce for 

the purported purpose of harming MedForce’s business. Thus, MedForce has effectively 

admitted that it fails to overcome the holding in Foxtons, and therefore, a mandatory element of 

its tortious interference claim. 

 In addition, MedForce’s Amended Complaint still fails to meet the requirement that but 

for the acts of AHM, MedForce “would have received the anticipated economic benefits.” 

Foxtons, 2008 WL 465653 at *7. See also Fineman v. Armstrong World Indus., Inc., 980 F.2d 

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171, 186 (3d Cir. 1992). MedForce summarizes its attempt to meet the foregoing requirement by 

stating: “It specifically alleges that at least two potential bidders2

 have advised MedForce that the 

dispute with AHM is the reason they are not submitting bids and that as a consequence 

MedForce has suffered economic harm.” See MedForce Opposition Memorandum at 6. Based 

thereupon, MedForce’s allegations remain insufficient to overcome the above requirement for 

two primary reasons – neither of which is cured by its Amended Complaint. First, the alleged 

fact that one or two “potential bidders” decided to temporarily not submit a mere bid to purchase 

MedForce remains far too remote a proximate cause for a failed transaction, let alone any 

determination of damages flowing therefrom. That is, even if MedForce’s allegations are taken 

at face value, proof of damages would always be impossible because there could never be any 

evidence of what the bid would have been, whether the bid would have been accepted, whether 

such a deal pursuant to a non-existent bid would have resulted in closing of a deal, and what, if 

any, the profit would have been to MedForce.3 There is simply no fact or circumstance that 

could be obtained through the course of discovery which would change this fact due to the 

inherent speculative nature of MedForce’s claim. As a result of the foregoing, MedForce’s 

tortious interference claim must be dismissed with prejudice. 

 Second, MedForce’s tortious interference claim is admittedly premature. By MedForce’s 

own allegations, two facts must be accepted as true: (1) AHM’s patents will be invalidated in this 

litigation; and (2) once AHM’s patents are invalidated, the “potential bidders” will submit bids 

and the alleged sale of MedForce’s business will continue. Thus, MedForce is acknowledging 

 

2

 The primary change from its initial Complaint to its Amended Complaint is that 

MedForce now alleges that two, instead of one, “potential bidders” have temporarily put off their 

bids.

3

 Critically, MedForce fails to even allege if it received other bids, the substance of those 

bids, what price it was seeking, or whether it entered into negotiations or signed a contract with 

any other party.

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that it will, at the end of the day, obtain the business relationship which it also asserts AHM 

interfered with; or at least receive the purportedly critical bids that were not yet made. 

Alternatively, MedForce must admit that whether or not it really would have received the bids, 

and whether or not any actual deal would have occurred, is purely speculative. Any of the 

foregoing would nullify MedForce’s current claim of purported damages. Since, based upon 

MedForce’s own pleadings, one of the foregoing must occur, MedForce’s tortious interference 

claim must be dismissed with prejudice. 

III. CONCLUSION 

 For all of the reasons set forth herein and in AHM’s moving papers, AHM respectfully 

requests that Count VII (Tortious Interference) of MedForce’s Amended Complaint be dismissed 

with prejudice. 

 Respectfully submitted, 

 

Dated: November 1, 2011 By: s/ Michael J. Feldman 

OLENDERFELDMAN LLP 

2840 Morris Avenue 

Union, New Jersey 07083 

Phone: (908) 964-2486 

Fax: (908) 810-6631 

 s/ Ryan W. O’Donnell

 Ryan W. O’Donnell, Esquire 

 Anthony S. Volpe, Esquire 

VOLPE AND KOENIG, P.C. 

United Plaza 

30 South 17th Street 

Philadelphia, Pennsylvania 19103 

Kristine L. Butler, Esquire 

VOLPE AND KOENIG, P.C. 

One Palmer Square 

Suite 315 

Princeton, New Jersey 08542 

Attorneys for Defendant 

Advanced Health Media, LLC 

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CERTIFICATE OF SERVICE

 I hereby certify that a true and correct copy of Defendant’s Reply in Support of Its Motion 

to Dismiss Count VII Pursuant to Fed. R. Civ. P. 12(b)(6) is being served via Notice of 

Electronic Filing on the following persons: 

Donald A. Robinson, Esquire 

Keith J. Miller, Esquire 

Leda Dunn Wettre, Esquire 

ROBINSON, WETTRE & MILLER LLC 

One Newark Centre, 19th Floor 

Newark, NJ 07102 

drobinson@rwmlegal.com

kmiller@rwmlegal.com

lwettre@rwmlegal.com

Dated: November 1, 2011 By: s/ Ryan W. O’Donnell

 Ryan W. O’Donnell, Esquire 

VOLPE AND KOENIG, P.C. 

United Plaza 

30 South 17th Street 

Philadelphia, PA 19103 

Phone: (215) 568-6400 

Fax: (215) 568-6499 

Attorneys for Defendant 

Advanced Health Media, LLC

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