United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE.
the Court is Defendant's Motion to Dismiss. Defendant
asserts that this Court does not have personal jurisdiction
over Defendant; there is no case or controversy that needs
declaratory judgment; and Plaintiff fails to state facts
sufficient to support its claims. For the reasons discussed
below, the Court will deny Defendant's Motion.
Myco Industries, Inc. (“Myco”) is a corporation
organized and existing under the laws of Michigan. Dkt. No.
9, pg. 2 (Pg. ID 24). Defendant BlephEx, LLC
(“BlephEx”) is a corporation organized under the
laws of Florida with its principal place of business located
in Tennessee. Id. Mr. John Choate is Myco's
Chairman. Dkt. No. 20, pg. 9 (Pg. ID 1184). Dr. James
Rynerson is BlephEx's owner and President. Id.
In August of 2012, Dr. Rynerson sought out Mr. Choate to
design and develop a prototype for a device that could treat
blepharitis. Id. at pg. 10 (Pg. ID 1185). Rynerson
and Choate formed RySurg LLC (“RySurg”), a
Michigan company and the BlephEx's company's
predecessor. Id. at pg. 10 (Pg. ID 1185). Mr. Choate
modified Dr. Rynerson's device design, developed a
prototype, and oversaw the manufacture and commercialization
of the final product, named the Blephex. Id. The
Blephex removes debris from the eyelid using the ‘718
patent method. Id. at pg. 11 (Pg. ID 1186). It went
to market in 2013. Id. Mr. Choate was employed by
and served as President of RySurg from December 2012 until
January 2014. Dkt. No. 10, pg. 16 (Pg. ID 64). Choate and
Rynerson ended their partnership due to financial conflicts.
Id. Dr. Rynerson then formed BlephEx, LLC to market
now sells the BlephEx treatment device that is used by
healthcare professionals for the treatment of blepharitis.
Dkt. No. 15, pg. 13 (Pg. ID 975). Blepharitis is an eyelid
disease characterized by the inflammation, scaling,
reddening, and crusting of the eyelid, creating dandruff-like
scales on the eyelashes. Dkt. No. 9, pg. 3 (Pg. ID 25); Dkt.
No. 20, pg. 10 (Pg. ID 1185). Blepharitis can be anterior or
posterior. Anterior blepharitis affects the front edge of the
eyelid where the eyelashes join it, and posterior blepharitis
affects the inner edge of the eyelid. Id.
February 20-24 of 2019, both BlephEx and Myco attended the
Southern Educational Congress of Optometry
(“SECO”) conference in New Orleans, Louisiana.
Dkt. No. 10, pg. 17 (Pg. ID 65). The SECO conference allows
companies to promote and display their goods and service to
thousands of optometric professionals from around the world.
Id. Myco began marketing its AB Max tool in 2019 at
the SECO conference. Id. The AB Max is a device
intended for the treatment of anterior blepharitis only.
Id. at pg. 25 (Pg. ID 73). Myco showed the AB Max
tool and handed out materials explaining the AB Max's
functionality and use at the conference. Id.
According to Plaintiff, Dr. Rynerson approached the Myco
booth at the conference and stated that the AB Max infringes
on his Blephex patent. Id. at pg. 18 (Pg. ID 66).
Dr. Rynerson allegedly made this accusation loudly and within
earshot of prospective customers. Id. Plaintiff
alleges that Dr. Rynerson returned to his BlephEx booth and
told optometrists that Myco's AB Max was infringing on
his patents and that he would take action. Id. at
pg. 19 (Pg. ID 67).
to Dr. Rynerson, he approached the Myco booth at the SECO
conference and asked Choate if he thought the AB Max might
infringe Rynerson's patent. Dkt. No. 15-1, pg. 5 (Pg. ID
996). Rynerson asserts that he did not threaten to sue anyone
for patent infringement. Id. He further states that
to the best of his recollection, he did not tell doctors and
practitioners visiting the BlephEx booth that the AB Max
infringed on his patent. Id. at pg. 15 (Pg. ID 977).
March 4, 2019, Plaintiff filed a complaint in this Court.
Dkt. No. 1. Plaintiff filed an amended complaint on March 14,
2019. Dkt. No. 14. The amended complaint requests a
declaratory judgment of non-infringement, a declaratory
judgment of invalidity of the ‘718 patent, and asserts
federal and common law unfair competition claims.
Id. On March 18, 2019, Plaintiff also filed a motion
for a preliminary injunction to enjoin Defendant from making
patent infringement allegations and threatening litigation
against Plaintiff's potential customers. Dkt. No. 11.
Defendant opposed the motion for preliminary injunction on
April 8, 2019. Dkt. No. 17. Plaintiff replied on April 22,
2019. Dkt. No. 19. On April 8, 2019, Defendant filed a Motion
to Dismiss, asserting that this Court does not have personal
jurisdiction over Defendant. Dkt. No. 15. Plaintiff opposed
the Motion to Dismiss on April 29, 2019. Dkt. No. 20.
Defendant replied on May 13, 2019. Dkt. No. 21.
Civ. P. 12(b)(6) governs motions to dismiss. The Court must
construe the complaint in favor of the plaintiff, accept the
allegations of the complaint as true, and determine whether
plaintiff's factual allegations present plausible claims.
See Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must “allege enough facts to make
it plausible that the defendant bears legal liability.”
Agema v. City of Allegan, 826 F.3d 326, 331 (6th
Cir. 2016). The facts need to make it more than “merely
possible that the defendant is liable; they must make it
plausible.” Id. “Bare assertions of
legal liability absent some corresponding facts are
insufficient to state a claim.” Id. A claim
will be dismissed “if the facts as alleged are
insufficient to make a valid claim or if the claim shows on
its face that relief is barred by an affirmative
defense.” Riverview Health Inst., LLC v. Med. Mut.
of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
Civ. P. 8(a)(2) requires “a short and plain statement
of the claim showing that the pleader is entitled to
relief” such that the defendant has “fair notice
of what the claim is and the grounds upon which it
rests.” Bell Atlantic Corp. v. Twonbly, 550
U.S. 544, 554 (2007).