Sunrise Pharmaceutical Inc v. Vision Pharma LLC ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-1960
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SUNRISE PHARMACEUTICAL, INC.,
Appellant
v.
VISION PHARMA, LLC; SANDER S. BUSMAN
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-17-cv-04074)
District Judge: Honorable Claire C. Cecchi
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Argued on March 5, 2020
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.
(Filed: April 3, 2020)
Nancy A. Del Pizzo (ARGUED)
Gregory D. Miller
Joshua D. Sibble
Rivkin Radler
25 Main Street, Court Plaza North
Suite 501
Hackensack, NJ 07601
Counsel for Appellant Sunrise Pharmaceutical, Inc.
Henry A. Gabathuler (ARGUED)
Cameron S. Reuber
Leason Ellis
1 Barker Avenue
Fifth Floor
White Plains, NY 10601
Counsel for Appellees Vision Pharma, LLC and Sander S. Busman
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OPINION *
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HARDIMAN, Circuit Judge.
This appeal involves a longstanding battle between two companies: Sunrise
Pharmaceutical, Inc. and Vision Pharma, LLC. Initially, Vision sued Sunrise and issued a
press release about the lawsuit. Sunrise viewed the press release as “false and
defamatory,” so it sued Vision years later. App. 20. The District Court dismissed
Sunrise’s complaint, holding that the Noerr-Pennington doctrine barred Sunrise’s claims.
We will affirm the District Court’s order on the alternative ground that Sunrise failed to
plausibly plead a right to relief.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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I
In its lawsuit against Vision, Sunrise alleged unfair competition and false
advertising under the Lanham Act, unfair competition under state statutory and common
law, tortious interference with prospective economic relations, and trade libel. 1 Its
complaint deemed “false and defamatory” the following statements in Vision’s press
release:
44. . . . Vision Florida falsely states that Sunrise “defective[ly]
manufacture[d] . . . certain drug products deemed adulterated and unsalable
by the U.S. Food & Drug Administration.”
45. . . . Vision Florida falsely states that Sunrise “willful[ly]” sold
“adulterated drugs to Vision Pharma.”
46. . . . Mr. Busman, who is listed as the “Founder, President & CEO” of
“Vision Pharma,” also defames Sunrise, as he is quoted as stating that the
false and defamatory statements [sic] resulted in “severe damage” to Vision
Florida, and that the company filed a lawsuit based on those false and
defamatory statements “for a well-deserved victory.”
App. 27–28.
Vision moved to dismiss Sunrise’s complaint, claiming that the statements in the
press release were true or, alternatively, the Noerr-Pennington doctrine barred Sunrise’s
claims. Under the Noerr-Pennington doctrine, “[t]hose who petition [the] government for
1
Sunrise also alleged unlawful monopolization and attempted monopolization in
violation of the Sherman Act and the Clayton Act, and state statutory law, but did not
appeal the District Court’s dismissal of those claims.
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redress are generally immune from antitrust liability.” Prof. Real Estate Inv’rs, Inc. v.
Columbia Pictures Indus., Inc. (PRE), 508 U.S. 49, 56 (1993). Vision argued the doctrine
applies even to claims not arising under the antitrust laws and immunizes it from liability
for statements in the press release.
The District Court granted Vision’s motion. It ruled the Noerr-Pennington doctrine
immunizes Vision from liability for the statements in the press release unless Vision’s
lawsuit against Sunrise was objectively baseless. Finding Vision’s lawsuit was not baseless,
it held Noerr-Pennington barred Sunrise’s claims. Sunrise moved for reconsideration and
the Court denied the motion. Sunrise timely appealed.
II 2
We review de novo the District Court’s order dismissing Sunrise’s claims under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Phillips v. Cty. of Allegheny, 515
F.3d 224, 230 (3d Cir. 2008). “We may affirm the district court on any ground supported
by the record.” Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (citations
omitted).
We need not address the District Court’s Noerr-Pennington analysis because the
record demonstrates that Sunrise failed to plead a plausible cause of action. Sunrise says
2
The District Court had jurisdiction under 28 U.S.C. § 1332(a)(1). We have
jurisdiction under 28 U.S.C. § 1291.
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its claims “sound[] in defamation,” Sunrise Br. 10, yet it failed to plausibly plead that
Vision made a false statement. See, e.g., DeAngelis v. Hill, 180 N.J. 1, 13 (2004).
We first identify Sunrise’s averments that are merely legal conclusions not entitled
to the presumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). These
include Sunrise’s allegations, in paragraphs 44–46 of its complaint, that certain
statements in the press release were “false and defamatory.” App. 27–28. Next, we ask
whether there are any well-pleaded factual allegations that plausibly give rise to an
entitlement to relief. See Iqbal, 556 U.S. at 679. Sunrise’s complaint contains no such
facts. Notably, Sunrise did not plead facts suggesting its drugs were properly
manufactured or that the FDA erred in deeming its drugs adulterated and unsalable. Nor
did it plead facts suggesting that, if its drugs were adulterated, it did not sell them
willfully or Vision did not suffer severe damage.
In sum, Sunrise’s allegation that Vision made false statements is a “naked
assertion[] devoid of further factual enhancement,” Iqbal, 556 U.S. at 678, insufficient to
survive a motion to dismiss. So we will affirm the District Court’s order dismissing
Sunrise’s complaint.
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