Desch v. Merz North America, Inc. et al
| Inna Desch |
| Merz North America, Inc. and Ulthera, Inc. |
| Jonathan Waldauer |
| 1:2022cv02688 |
| May 9, 2022 |
| US District Court for the Eastern District of New York |
| Hector Gonzalez |
| Tort Product Liability |
| 28 U.S.C. § 1332 Diversity-Product Liability |
| Defendant |
Docket Report
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ORDER granting motion to withdraw as attorney. See ECF No. #36 . Attorney Brian T. Ruocco shall be removed from the docket. Ordered by Judge Hector Gonzalez on 1/14/2023. (BH)
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| Filing 36 MOTION to Withdraw as Attorney of Record (Brian T. Ruocco) by Merz North America, Inc., Ulthera, Inc.. (Ruocco, Brian) |
| Minute Entry for proceedings held before Judge Hector Gonzalez: Oral argument on defendant's Motion to Dismiss held on December 19, 2022. Jay Massaro appeared on behalf of the plaintiff. Brian Ruocco appeared on behalf of the defendants. Arguments in support and in opposition of the motion were heard from the parties. The Court informed the parties that the motion would be taken under advisement. (Court Reporter Victoria Butler.) (PN) |
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SCHEDULING ORDER: The Court has rescheduled the telephonic oral argument on Defendants' pending motion to dismiss for December 19, 2022, at 3:00pm. Members of the public may join the conference in a listen-only mode by calling (866) 590-5055 and using access code #9720458. The Court will distribute by email to counsel of record, in advance of the oral argument, the separate telephone credentials that they need to participate. Ordered by Judge Hector Gonzalez on 12/7/2022. (BH)
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Filing 35
ORDER: As further explained in the accompanying Order, the Court denies as moot Plaintiff's motion to compel compliance with subpoenas that she has served on nonparties, see ECF No. #30 , in light of the fact that Plaintiff and the subpoena recipients explained during a telephone conference on November 4, 2022, that they have resolved the disputes raised in Plaintiff's motion. Ordered by Judge Hector Gonzalez on 11/4/2022. (BH)
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| Minute Entry for proceedings held before Judge Hector Gonzalez: Telephonic status conference held on November 4, 2022. Jay Massaro appeared on behalf of Plaintiff. Craig May and Brian Ruocco appeared on behalf of Defendants. Jonathan Waldauer appeared on behalf of non-party defendants in the related state action. The Court requested a status update regarding the response in opposition to plaintiff's Motion for Discovery See #33 . Plaintiff's counsel informed the Court that the letter filed by counsel for the non-parties has sufficiently resolved the majority of issues raised in their motion, and they will work out any outstanding issues regarding purchase orders for certain medical equipment. Plaintiff's Motion to Dismiss was addressed and the Court granted defendants' request for oral argument. Oral argument on Plaintiff's Motion to Dismiss has been set for December 14, 2022, at 2:00pm, and will take place telephonically. Members of the public may join the conference in a listen-only mode by calling (866) 590-5055 and using access code #9720458. The Court will distribute by email to counsel of record, in advance of the oral argument, the separate telephone credentials that they need to participate. (Court Reporter Leeann Musolf.) (PN) |
| Filing 34 First MOTION to Adjourn Conference by Inna Desch. (Massaro, Jay) |
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ORDER: The Court grants Plaintiff's motion to adjourn the telephone conference, currently scheduled for October 28, 2022, regarding Plaintiff's motion to compel a response to her nonparty subpoena. See ECF No. #34 . The telephone conference shall occur on November 4, 2022, at 1:00pm. Members of the public may join the conference in a listen-only mode by calling (866) 590-5055 and using access code #9720458. The Court will distribute by email to counsel of record, in advance of the conference, the separate telephone credentials that they need to participate. Plaintiff's counsel shall file a letter before the close of business on November 3, 2022, advising the Court whether the response filed by the nonparty subpoena recipients, see ECF No. #33 , along with their production of additional documents, has resolved any of the disputed issues raised in Plaintiff's discovery motion, see ECF No. #30 . Ordered by Judge Hector Gonzalez on 10/27/2022. (BH)
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| Filing 33 RESPONSE in Opposition re #30 First MOTION for Discovery Letter requesting permission to file Discovery Motion filed by Jonathan Waldauer. (PN) |
| Filing 32 NOTICE of Appearance by Jonathan Waldauer on behalf of Jonathan Waldauer (aty to be noticed) (PN) |
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Filing 31
ORDER: The Court treats Plaintiff's letter, see ECF No. #30 , as a motion to compel compliance with the nonparty subpoena discussed therein and grants Plaintiff's request for a conference to discuss the motion. As further described in the accompanying Order, counsel for the subpoena recipients shall file a letter no longer than three pages in opposition to Plaintiff's motion on or before October 26, 2022. The Court will hold a telephone conference to address this discovery dispute on October 28, 2022, at 1:00pm, during which the Court will likely resolve the dispute without the opportunity for further briefing. The Court will distribute the telephone credentials necessary to participate in advance of the conference. Plaintiff's counsel shall provide a copy of this order to counsel for the subpoena recipients as soon as reasonably practical. Ordered by Judge Hector Gonzalez on 10/17/2022. (BH)
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| Filing 30 First MOTION for Discovery Letter requesting permission to file Discovery Motion by Inna Desch. (Attachments: #1 Exhibit A - Subpoenas, #2 Exhibit B - Rubin's Response Letter) (Massaro, Jay) |
| Filing 29 Letter Request for Oral Argument by Merz North America, Inc., Ulthera, Inc. (May, Craig) |
| Filing 28 REPLY in Support re #18 MOTION to Dismiss for Failure to State a Claim , #17 Amended Complaint, Defendants' Reply Brief in Further Support of Their Motion to Dismiss filed by Merz North America, Inc., Ulthera, Inc.. (Ruocco, Brian) |
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Filing 27
SCHEDULING ORDER: The parties shall comply with the discovery deadlines in the accompanying order, as discussed on the record during the conference on August 23, 2022. Ordered by Judge Hector Gonzalez on 8/23/2022. (Herrmann, Brendan)
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| Minute Entry for proceedings held before Judge Hector Gonzalez: Telephonic initial status conference held on August 23, 2022. Jay Massaro appeared on behalf of Plaintiff. Christopher Abatemarco, Craig May, Shawn Neal, and Brian Ruocco appeared on behalf of Defendants. The Court discussed the parties' proposed discovery schedule and the potential impact on discovery of Defendants' pending motion to dismiss. See ECF Nos. #18 , #23 . The Court will issue a separate order with deadlines for the parties' preliminary discovery obligations and will set deadlines related to additional discovery obligations, if necessary, after the Court's consideration of Defendants' motion to dismiss. (Court Reporter Linda Marino.) (Neptune, Pierre) |
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Filing 26
ORDER: The Court grants the parties' joint motion for a protective order and adopts the parties' accompanying Stipulation for Protective Order. See ECF No. #22 . Ordered by Judge Hector Gonzalez on 8/22/2022. (Herrmann, Brendan)
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| Filing 25 MEMORANDUM in Opposition re #18 MOTION to Dismiss for Failure to State a Claim filed by Inna Desch. (Massaro, Jay) |
| Filing 24 First MOTION for Leave to File Excess Pages by Inna Desch. (Attachments: #1 Exhibit A - proposed opposition brief) (Massaro, Jay) |
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ORDER: The Court denies the parties' joint motion to adjourn the initial status conference scheduled for August 23, 2022, at 11:00am. See ECF No. #21 . However, the Court shall conduct the conference telephonically rather than in person. Members of the public may join the conference in a listen-only mode by calling (866) 590-5055 and using access code #9720458. The Court will distribute by email to counsel of record, in advance of the conference, the separate telephone credentials that they need to participate. Ordered by Judge Hector Gonzalez on 8/18/2022. (Herrmann, Brendan)
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ORDER: The Court grants Plaintiff's motion to file a memorandum of law in opposition to Defendants' motion to dismiss that is no longer than 30 pages. See ECF No. #24 . Pursuant to the Court's prior order, see ECF No. #16 , Plaintiff shall file her memorandum of law and any other papers in opposition to Defendants' motion to dismiss on or before August 26, 2022. Ordered by Judge Hector Gonzalez on 8/18/2022. (Herrmann, Brendan)
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| Filing 23 Letter Joint Letter re: Initial Status Conference by Merz North America, Inc., Ulthera, Inc. (Attachments: #1 Civil Case Management Plan) (May, Craig) |
| Filing 22 MOTION for Protective Order Motion for Court Order on Stipulated Protective Order by Merz North America, Inc., Ulthera, Inc.. (Ruocco, Brian) |
| Filing 21 Joint MOTION to Continue Joint Motion for an Order Continuing the Initial Scheduling Conference by Merz North America, Inc., Ulthera, Inc.. (Attachments: #1 Proposed Order) (May, Craig) |
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Filing 20
ORDER: As further explained in the accompanying Order, the Court denies Defendants' motion to file under seal an excerpted version of their FDA petition as an exhibit in support of their motion to dismiss Plaintiff's Amended Complaint. See ECF No. #19 . The information contained in Defendants' proposed excerpt of the FDA petition is not relevant to the Court's eventual decision on Defendants' motion to dismiss. The Court has therefore struck from the docket ECF No. 19-2, which contained Defendants' proposed excerpts of the petition. The Court's decision on this motion is without prejudice to Defendants seeking to file under seal part or all of their FDA petition at a later stage of this litigation if and when the information in the petition becomes relevant. Ordered by Judge Hector Gonzalez on 7/28/2022. (Herrmann, Brendan)
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| Filing 19 MOTION to Seal Document #18 MOTION to Dismiss for Failure to State a Claim by Merz North America, Inc., Ulthera, Inc.. (Attachments: #1 Proposed Order) (Ruocco, Brian) |
| Filing 18 MOTION to Dismiss for Failure to State a Claim by Merz North America, Inc., Ulthera, Inc.. (Attachments: #1 Memorandum in Support, #2 Exhibit A-Skintology Medspa Complaint and Summons, #3 Exhibit B-Carranza Declaration, #4 Exhibit B1-De Novo Submission (Placeholder Document), #5 Exhibit B2-K072505 - 09.11.09, #6 Exhibit C-Guidance Document, #7 Proposed Order) (Ruocco, Brian) |
| Filing 17 AMENDED COMPLAINT against All Defendants, filed by Inna Desch. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Exhibit, #10 Exhibit, #11 Exhibit, #12 Exhibit, #13 Exhibit) (Massaro, Jay) |
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Filing 16
ORDER: The Court grants Plaintiff's request for leave to file an Amended Complaint and Defendants' request to modify the briefing schedule for their forthcoming motion to dismiss. See ECF No. #15 . Plaintiff shall file her Amended Complaint on or before July 5, 2022. Defendants shall file an Answer, move to dismiss, or otherwise respond to the Amended Complaint on or before July 26, 2022. If Defendants file a motion to dismiss, then Plaintiff shall file her papers in opposition to the motion on or before August 26, 2022, and Defendants shall file their reply papers on or before September 2, 2022. Additionally, the initial status conference previously scheduled for June 29, 2022, is rescheduled for August 23, 2022, at 11:00 AM. The parties shall file a joint letter describing the case and the completed civil case management plan, as further described in the attached mandatory requirements. The attached mandatory requirements supersede the version included in the Court's prior scheduling order. See ECF No. #6 . Ordered by Judge Hector Gonzalez on 6/15/2022. (Herrmann, Brendan)
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| Filing 15 Joint MOTION to Continue to Modify Briefing Schedule and Grant Plaintiff Leave to Amend Complaint by Merz North America, Inc., Ulthera, Inc.. (Attachments: #1 Exhibit 1 - Proposed Order) (Ruocco, Brian) |
| Filing 14 NOTICE of Appearance by Brian Ruocco on behalf of Merz North America, Inc., Ulthera, Inc. (notification declined or already on case) (Ruocco, Brian) |
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ORDER granting motion to appear pro hac vice. See ECF No. #11 . Attorney Shawn K. Neal is granted permission to appear pro hac vice on behalf of Defendants Ulthera, Inc. and Merz North America, Inc. The attorney shall register for ECF at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ordered by Judge Hector Gonzalez on 6/12/2022. (Herrmann, Brendan)
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ORDER granting motion to appear pro hac vice. See ECF No. #12 . Attorney Craig R. May is granted permission to appear pro hac vice on behalf of Defendants Ulthera, Inc. and Merz North America, Inc. The attorney shall register for ECF at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Ordered by Judge Hector Gonzalez on 6/12/2022. (Herrmann, Brendan)
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ORDER granting motion to appear pro hac vice. See ECF No. #13 . Attorney Brian T. Ruocco is granted permission to appear pro hac vice on behalf of Defendants Ulthera, Inc. and Merz North America, Inc. The attorney shall register for ECF at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Ordered by Judge Hector Gonzalez on 6/12/2022. (Herrmann, Brendan)
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| Filing 13 Notice of MOTION to Appear Pro Hac Vice for Brian T. Ruocco Filing fee $ 150, receipt number ANYEDC-15647554. by Merz North America, Inc., Ulthera, Inc.. (Attachments: #1 Affidavit Affidavit of Brian T. Ruocco, Esq. in Support of Motion for Admission Pro Hac Vice, #2 CO Certificate of Good Standing, #3 DC Bar Certificate of Good Standing) (Ruocco, Brian) |
| Filing 12 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-15647314. by Merz North America, Inc., Ulthera, Inc.. (Attachments: #1 Affidavit in Support of Craig May re Notice of Motion for Admission Pro Hac Vice, #2 Exhibit Certificate of Good Standing in Colorado, #3 Exhibit Certificate of Good Standing) (May, Craig) |
| Filing 11 Notice of MOTION to Appear Pro Hac Vice for Shawn K. Neal Filing fee $ 150, receipt number ANYEDC-15647331. by Merz North America, Inc., Ulthera, Inc.. (Attachments: #1 Affidavit, #2 Certificate of Good Standing) (Neal, Shawn) |
| Filing 10 NOTICE of Appearance by Shawn Neal on behalf of Merz North America, Inc., Ulthera, Inc. (aty to be noticed) (Attachments: #1 Affidavit in Support, #2 Certificate of Good Standing) (Neal, Shawn) |
| Filing 9 NOTICE of Appearance by Jay Joseph Massaro on behalf of Inna Desch (aty to be noticed) (Massaro, Jay) |
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ORDER granting in part and denying in part Defendants' request for a pre-motion conference. See ECF No. #7 . Upon reviewing Defendants' submission, the Court concludes that a pre-motion conference is unnecessary, and Defendants may file their proposed motion to dismiss. Defendants shall file their opening papers on or before June 21, 2022. Plaintiff shall file her opposition papers on or before July 19, 2022. Defendants shall file their reply papers on or before July 29, 2022. Ordered by Judge Hector Gonzalez on 5/24/2022. (Herrmann, Brendan)
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| Filing 8 NOTICE of Appearance by Patrick Joseph Hughes on behalf of All Defendants (aty to be noticed) (Hughes, Patrick) |
| Filing 7 Letter MOTION for pre motion conference by Merz North America, Inc., Ulthera, Inc.. (Abatemarco, Christopher) |
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Filing 6
SCHEDULING ORDER: Counsel for all parties are directed to appear before Judge Gonzalez for an initial status conference in accordance with Fed. R. Civ. P. 16 on JUNE 29, 2022 AT 2:00PM in a courtroom to be determined. The parties are directed to comply with the attached mandatory requirements, including filing on the docket a joint letter describing the case and a completed civil case management plan prior to the conference. Requests for adjournment of the initial status conference will be considered only if made in writing and otherwise in accordance with Section I.D of Judge Gonzalez's Individual Practices. Ordered by Judge Hector Gonzalez on 5/12/2022. (Herrmann, Brendan)
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| Filing 5 Corporate Disclosure Statement by Ulthera, Inc. identifying Corporate Parent Merz, Incorporated for Ulthera, Inc.. (Abatemarco, Christopher) |
| Filing 4 Corporate Disclosure Statement by Merz North America, Inc. identifying Corporate Parent Merz, Incorporated for Merz North America, Inc.. (Abatemarco, Christopher) |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) |
| Filing 2 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) |
| Case Assigned to Judge Hector Gonzalez. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) |
| This case has been opened in the Eastern District of New York. If you plan to continue representing your client(s), you must be admitted to practice before this court. You must do so by applying for Pro Hac Vice or permanent admission. To apply for Pro Hac Vice admission, you must first register for an ECF login and password. Please visit the Court's website at www.nyed.uscourts.gov/attorney-admissions for guidance. Once registered, you must electronically file a Motion to Appear Pro Hac Vice. You must pay the required pro hac vice fee online. (Davis, Kimberly) |
| Filing 1 NOTICE OF REMOVAL by Merz North America, Inc., Ulthera, Inc. from Supreme Court of the State of New York, County of Kings, case number 510357/2022. ( Filing fee $ 402 receipt number ANYEDC-15548340) (Attachments: #1 Exhibit A - State Court Pleadings, #2 Exhibit B - Declaration, #3 Exhibit Notice To Clerk of Supreme Court of Removal, #4 Civil Cover Sheet) (Abatemarco, Christopher) |
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