United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion to
Dismiss Defendant's Second Counter-Claim, [Doc. No. 61].
The motion is fully briefed. For the reasons set forth below,
the Motion is denied.
moves to dismiss Defendant's Second Counterclaim for
interference with contractual relations. Curiously, Plaintiff
argues that the counterclaim must be dismissed for failure to
allege the necessary elements of the claim, citing Brown
v. Simmons, 478 F.3d 922, 923 (8th Cir.
2007), while arguing in its Response to the Motion to Dismiss
Count III that the formulaic recitation of the elements of a
claim are not necessary under Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
respect to the Second Counterclaim, Defendant alleges the
Stahl ("Stahl") is the founder and Chief Executive
Office of XL Medica ("XL"), a medical supply
distributor, with a focus on selling regenerative medicine
related biologics, based in Ft, Myers, Florida. XL is a
distributor of Kimera products. On March 28, 2018, Stahl
obtained a telephone number attributed to Greg Murphy
("Murphy"). At the time that Stahl obtained
Murphy's telephone number, Murphy had been selling for
New Life Regenerative Medicine, a company in the business of,
among other things, distributing and selling biologics in the
regenerative medicine space.
16, 2019, Stahl received a text from the number attributed to
Murphy. The text contended, regarding exosomes injections, a
regenerative medicine related product/service offered by
Kimera, that the marketing, legality, and health risks are
unknown. The text further represents that Kimera's
license had been suspended by the State of Florida. Finally,
the text contends that Kimera's "property of record
was raided and their corporate officers were criminally
arrested for conducting drug raves at their facility last
year." Each and every allegation set forth in the text
message was false and misleading. Defendant believes Murphy
sent Stahl the text message in the course of his employment
either by DB or a distributor of DB products with the
intention of persuading Stahl and XL to become a distributor
of DB products rather that Kimera products.
Carroll ("Carroll") is the principal of
Regenerative Solutions, ("RS"), a medical supply
distributor which focuses on selling regenerative medicine
related biologics, based in Kansas City, Missouri. Carroll
and RS are distributors of Kimera products. Between May 1,
2019 and June 30, 2019, Pat Klinger ("Klinger") an
employee of DB, spoke with Carroll by telephone. Klinger
requested that Carroll and RS distribute exosomes provided by
DB rather than Kimera exosomes. To persuade Carroll, Klinger
made the following statements: (1) Duncan Ross, the president
of Kimera, was operating Kimera's laboratory out of the
back of a nightclub; (2) Kimera has had no shipping or safety
validation; (3) DB completed an independent third party lab
test of Kimera exosomes, which indicated that the product did
not consistently maintain appropriate dosage concentrations
so as to be medically viable; (4) DB attempted to convince
Kimera's principals, Duncan Ross and Douglas Spiel, to
become compliant with appropriate safety regulations, but
Kimera refused to do so; (5) Kimera has no tissue bank
accreditation or AATB (American Association of Tissue Banks)
certification; (6) DB received a large order from Kimera in a
poor shipping container and the packages of product crumbled;
(7) DB was forced to give away over $350, 000 of product it
purchased from Kimera due to the poor quality of the Kimera
product; and (8) after FDA's most recent inspection of
Kimera's lab, FDA left with more questions than answers.
the allegations made by Klinger was false and misleading. On
information and belief, Klinger made the eight statements to
Carroll described above in the course of his employment with
DB with the intention of persuading Carroll and RS to become
a distributor of DB products rather than Kimera Products.
the Christmas season of 2018, Dr. Crispino Santos, a
physician in Las Vegas, Nevada who regularly used Kimera
regenerative products, particularly exosomes, in his medical
practice, sought an immediate order of exosomes to
accommodate a particular patient in need. Dr. Santos
contacted Carl Thompson, his rep and a distributor of Kimera
products, regarding such an order.
of the holiday, Kimera could not provide the products which
Dr. Santos needed in a timely fashion. To attempt to
nevertheless accommodate the patient, Dr. Santos communicated
with Andrew McNaughton ("McNaughton"), who Dr.
Santos knows to be either a distributor of DB products or a
sales employee of DB. McNaughton advised Dr. Santos that
Kimera would be unable to provide exosomes in the future
because its lab was unable to maintain appropriate quality
statement made by McNaughton described in the above paragraph
is false and misleading. McNaughton made the statement in the
course of his employment by DB or as a distributor of DB with
the intention of persuading Dr. Santos to become a customer
of DB products rather than Kimera products.
information and belief, employees or agents of DB have also
made false and misleading statements about Kimera's key
personnel and its products to unidentified distributors or
customers of Kimera to persuade such distributors or
customers to become distributors or customers of DB product.
On information and belief, the DB agents or distributors
making such false or misleading statements did so in the
course of employment for, or as agents of, DB or as a
distributor of DB.
had an established business relationship with Stahl and XL
pursuant to which Stahl and XL were distributors of Kimera
products and Kimera had legal rights arising out of the
relationship. Kimera had an established business relationship
with Carroll and RS, pursuant to which Carrol and RS were
distributors of Kimera products, and Kimera had legal rights
arising out of the relationship .Kimera had an established
business relationship with Dr. Santos, ...