INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------- X : Index No.: 613760/2016 THE COUNTY OF SUFFOLK, : Plaintiff, v. : PURDUE PHARMA L.P., PURDUE PHARMA INC., THE PURDUE FREDERICK COMPANY,: INC., TEVA PHARMACEUTICALS USA, INC., CEPHALON, INC., JOHNSON & JOHNSON,: JANSSEN PHARMACEUTICALS, INC., ORTHOMCNEIL-JANSSEN PHARMACEUTICA, INC.: N/K/A JANSSEN PHARMACEUTICALS, INC., ENDO HEALTH SOLUTIONS INC., ENDO: PHARMACEUTICALS, INC., RUSSELL PORTENOY, PERRY FINE, SCOTT FISHMAN,: AND LYNN WEBSTER, : Defendants. ---------------------------------------------------------------- X MEMORANDUM OF LAW IN SUPPORT OF THE INDIVIDUAL DEFENDANTS’ MOTION TO DISMISS GORDON & REES, LLP ATTORNEYS FOR DEFENDANTS PERRY FINE AND LYNN WEBSTER ONE BATTERY PARK PLAZA New York, New York 10004 PHONE: (212) 269-5500 FAX: (212) 269-5505 1 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT .................................................................................................................................. 4 I. PERSONAL JURISDICTION ................................................................................ 4 A. The Court Lacks General Jurisdiction Over the Physician-Defendants ..... 5 B. The Long-Arm Statute does not Reach the Physician-Defendants ............. 7 C. II. (1) The Court Lacks Jurisdiction Under CPLR 302(a)(1) .................... 8 (2) The Court Lacks Jurisdiction Under CPLR 302(a)(2) .................. 11 (3) The Court Lacks Jurisdiction Under CPLR 302(a)(3) .................. 15 (4) The Court Lacks Jurisdiction Under CPLR 302(a)(4) .................. 18 Exercising Jurisdiction over Physician-Defendants Would Offend Due Process ...................................................................................................... 19 PLAINTIFF FAILS TO STATE A CAUSE OF ACTION .................................. 23 A. Adoption and Incorporation ...................................................................... 23 B. Additional Flaws and Supplemental Analysis .......................................... 26 (1) Plaintiff’s General Business Law § 349 Claim Fails .................... 26 (2) Plaintiff’s General Business Law § 350 Claim Fails .................... 30 (3) Plaintiff Fails to State a Public Nuisance Claim ........................... 32 i. The Physician-Defendants Do Not Owe a Duty to Plaintiff ........................................................................................... 33 ii. Plaintiff Cannot Adequately Plead Proximate Cause ....... 37 (4) Plaintiff’s Claim Under New York Social Services Law § 145-B Fails ............................................................................................... 38 (5) Plaintiff Fails to State a Claim of Fraud ....................................... 39 (6) Plaintiff Fails to State an Unjust Enrichment Claim ..................... 48 CONCLUSION ............................................................................................................................. 49 i 2 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 TABLE OF AUTHORITIES Cases 777388 Ontario Ltd. v. Lencore Acoustics Corp., 142 F. Supp. 2d 309 (E.D.N.Y. 2001) ...................................................................................... 13 Ace Decade Holdings Ltd. v. UBS AG, 2016 NY Slip Op 32415(U (Sup. Ct. N.Y. Co. Dec. 7, 2016).................................................... 6 AHA Sales, Inc. v Creative Bath Prods., Inc., 58 A.D.3d 6, (2nd Dep’t 2008) ................................................................................................. 48 Anos Diner, Inc. v. Pitios Gourmet, Ltd., 100 AD2d 948 (2d Dept 1984) ................................................................................................. 46 Armouth Int’l, Inc. v. Haband Co., 277 A.D.2d 189 (2d Dep’t 2000) .............................................................................................. 11 Arthur v. Offit, No. 01:09-cv-1398, 2010 WL 883745 (E.D. Va. Mar. 10, 2010) ............................................ 43 Barclay Arms, Inc. v. Barclay Arms Assocs., 74 N.Y.2d 644 (1989) ............................................................................................................... 40 Baron v. Pfizer, Inc., 2006 NY Slip Op 51115(U) 820 N.Y.S.2d 841 (1st Dep’t 2006) ............................................. 49 Bensusan Rest. Corp. v. King, 126 F.3d 25 (2d Cir. 1997) ...................................................................................................... 19 Best Cellars, Inc. v. Grape Finds at Dupont, Inc., 90 F. Supp. 2d 431 (S.D.N.Y. 2000) ........................................................................................ 13 BHC Interim Funding v Bracewell & Patterson, 2003 U.S. Dist. LEXIS 10739 (S.D.N.Y. June 25, 2003) ........................................................ 13 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) ................................................. 19, 22 Chaiken v. VV Publ. Corp., 119 F.3d 1018 (2d Cir. 1997) ................................................................................................... 21 Chen v. Guo Liang Lu, 2016 NY Slip Op 07290 (2d Dep’t 2016)................................................................................... 5 Cipriano by Cipriano v. Hank, 197 A.D.2d 295 (1st Dep’t 1994) ............................................................................................... 4 Competitive Tech., Inc. v. Pross, 14 Misc. 3d 1224(A), 1224A, 836 N.Y.S.2d 492, 492 (Sup. Ct. Suffolk County January 26, 2007) ............................................................................................................................... 8, 11, 16 Contrast Okeke v. Momah, 2015 NY Slip Op 07252, 132 A.D.3d 648, 17 N.Y.S.3d 746 (2d Dep’t 2015) .......................... 6 ii 3 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .................................................................................................................. 6 DH Cattle Holdings Co. v. Smith, 195 A.D.2d 202 (1st Dep’t 1994) ..................................................................... 42, 43, 44, 45, 47 Dime Sav. Bank v. Steinman, 206 A.D.2d 404, 613 N.Y.S.2d 945 (2d Dep’t 1994) ................................................................. 4 Farkas v. Farkas, 36 A.D.3d 852 (2d Dep’t 2007) ................................................................................................ 9 Feathers v. McLucas, 15 N.Y.2d 443, 209 N.E.2d 68, 261 N.Y.S.2d 8 (1965) ....................................................... 11 Fischbarg v. Doucet, 9 N.Y.3d 375 (2007) .................................................................................................................. 8 Fowler v American Lawyer Media, Inc., 306 AD2d 113, 761 N.Y.S.2d 176 (1st Dept 2003).................................................................. 41 Goel v. Ramachandran, 2013 NY Slip Op 7708, A.D.3d 783 (2nd Dep’t 2014) ............................................................ 49 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011) ................................................................................. 6 Greco v. Ulmer & Burne L.L.P., 2009 NY Slip Op 29054 (Sup. Ct. Kings County 2009) ........................................................ 18 Grosser v. Commodity Exchange, Inc., 639 F. Supp. 1293 (S.D.N.Y. 1986) ......................................................................................... 12 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001) ............................................................................................. 33, 34, 35, 37 High Tides, LLC v. DeMichele, A.D.3d 954 (2d Dep’t 2011) ....................................................................... 41, 42, 43, 44, 45, 47 Hollander v. Shepherd, 2016 NY Slip Op 30042(U) (Sup. Ct. N.Y. County 2016)......................................................... 5 Hopstein v Cohen, 2016 NY Slip Op 06803 (2d Dep’t 2016) ............................................................................... 18 Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d 906 (1991) ................................................... 29 In re Libor-Based Financial Instruments Litigation, No. MDL 2262 NRB, 2015 WL 4634541 (S.D.N.Y. 2015) ..................................................... 20 Ingraham v. Carroll, 90 N.Y.2d 592 (1997) ......................................................................................................... 17, 18 International Shoe Co. v. Washington, 326 U.S. 310 (1945) ........................................................................................................... 19, 21 iii 4 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 ISI Brands, Inc. v. KCC Intern., Inc., 458 F. Supp.2d 81 (E.D.N.Y. 2006) .......................................................................................... 10 Karlin v. IVF Am., 93 N.Y.2d 282 (1999) ............................................................................................................... 27 Kent v. Dometic, LLC, 2012 NY Slip Op 51519(U) Misc. 3d 1226(A), 1226A, 959 N.Y.S.2d 89 (N.Y. Sup. Ct. 2012) .................................................................................................................................................. 16 Lacoff v. Buena Vista Publ’g, Inc., 183 Misc. 2d 600, 705 N.Y.S.2d 183, 2000 N.Y. Misc. LEXIS 25 (Sup. Ct. New York County 2000) ................................................................................................................................... 31, 41 LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210 (2000) ..................................................................................................... 8, 17, 19 Laufer v. Ostrow, 55 N.Y.2d 305 (1982) ................................................................................................................ 7 Lawati v. Montague Morgan Slade Ltd., 102 AD3d 427, 961 N.Y.S.2d 5 (1st Dep't 2013) ...................................................... 12, 13, 14 Lehigh Valley Indus., Inc. v. Lehigh Colonial Corp., 527 F.2d 87 (2d Cir. 1975) ....................................................................................................... 12 Luberda v. Purdue Frederick Corp., Civil Action No. 4:13-cv-00897-RBH, 2014 U.S. Dist. LEXIS 41951 (D.S.C. Mar. 28, 2014) .................................................................................................................................................. 22 Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914 (2nd Dep’t 2013) ............................................................................................ 36 Malone v. County of Suffolk, 128 A.D.3d 651 (2nd Dep’t 2015) ...................................................................................... 35, 36 Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173 (2011) ....................................................................................... 42, 43, 44, 45, 47 Matter of Nilsa B. B. v Clyde Blackwell H., 84 A.D.2d 295, 445 N.Y.S.2d 579 (2d Dep’t 1981) ................................................................... 5 McCracken v. Adams, 2016 NY Slip Op 30492(U) (Sup. Ct. New York County 2016) .......................................... 11 McGill v. GMC, 231 A.D.2d 449, 647 N.Y.S.2d 209 (1st Dep’t 1996) .............................................................. 31 Merck Eprova AG v. BrookStone Pharms., LLC, 920 F. Supp. 2d 404 (S.D.N.Y. 2013) ...................................................................................... 30 Montgomery v. Minarcin, 263 A.D.2d 665 N.Y.S.2d 293 (1999) ...................................................................................... 11 Morrissey v. Nextel Partners, Inc., 2010 NY Slip Op 1565, 72 A.D.3d 209, 216, 895 N.Y.S.2d 580 (3rd Dep’t 2010) ................ 30 iv 5 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 New York Public Interest Research Group, Inc. v Insurance Information Institute, 140 Misc. 2d 920, 531 N.Y.S.2d 1002, 1988 N.Y. Misc. LEXIS 499 (Sup. Ct. New York County 1988), aff’d, 161 A.D.2d 204 (1st Dep’t 1990) ............................................................................. 28, 31 Noise Mktg. LLC v. Great Works Am., Inc., 2009 NY Slip Op 30965(U)) (Sup. Ct. New York County 2009) ............................................ 49 Norex Petroleum Ltd. v. Blavatnik, 2015 NY Slip Op 51280(U) (Sup. Ct. N.Y. Co. Aug. 25, 2015) .................................... 6, 12, 14 O'Keefe v. Blue & Gold Fleet, L.P., 634 F. Supp. 2d 284 (E.D.N.Y. 2009) ....................................................................................... 10 Old Republic Natl. Tit. Ins. Co. v. Cardinal Abstract Corp., 14 A.D.3d 678 (2d Dep't 2005)................................................................................................. 48 ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013) ....................................................................... 28, 29, 43, 44, 45, 47 Opticare Acquisition Corp. v. Castillo, 25 A.D.3d 238 (2d Dep’t 2005) ................................................................................................ 8 Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995) ................................................................................................................. 27 Paterno v. Laser Spine Inst., 24 N.Y.3d 370 (2014) ................................................................................................................ 9 Pelman v. McDonald's Corp., 237 F. Supp. 2d 512, 2003 U.S. Dist. LEXIS 707 (S.D.N.Y. 2003) ........................................ 30 People v. Bank of N.Y. Mellon Corp., 2013 NY Slip Op 31813(U) (2013)........................................................................................... 39 People v. Sturm, Ruger & Co., 761 N.Y.S.2d 192 (1st Dep’t. 2003).................................................................. 32, 33, 35, 37, 38 Perm Central Transp. v. Singer Warehouse & Trucking Corp., 86 A.D.2d 826, 447 N.Y.S.2d 265 (1st Dep’t 1982) ................................................................ 32 Pichardo v. Zayas, 122 A.D.3d 699 (2d Dep’t 2014) ............................................................................................ 5, 6 Rosenberg v. PK Graphics, 2004 U.S. Dist. LEXIS 8266 (S.D.N.Y. May 10, 2004) ........................................................... 10 S’holder Representative Servs. LLC v. Sandoz Inc., 2015 N.Y. Misc. LEXIS 740, 9 N.Y.S.3d 595 (N.Y. Sup. Ct. 2015) ... 41, 42, 43, 44, 45, 46, 47 Savage Universal Corp. v. Grazier Constr., Inc., 2004 U.S. Dist. LEXIS 16088 (S.D.N.Y. Aug. 13, 2004) ......................................................... 10 Simon v. Kyrejko, 2015 NY Slip Op 31075(U) (N.Y. Sup. Ct. 2015) ................................................................... 46 v 6 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Singer v. Bell, 585 F. Supp. 300 (S.D.N.Y. 1984) ........................................................................................... 13 SNCB Corporate Fin. Ltd. v. Schuster, 877 F. Supp. 820 (S.D.N.Y. 1994) ......................................................................... 42, 43, 44, 45 SPCA of Upstate N.Y., Inc. v. Am. Working Collie Assn., 2012 NY Slip Op 857 N.Y.3d 400,, 940 N.Y.S.2d 525, 963 N.E.2d 1226 (2012) ............ 5, 9, 10 Stein v. Doukas, 98 AD3d 1024 (2d Dept 2012) ................................................................................................. 46 Steinmetz v. Energy Automation Sys., Inc., 2014 NY Slip Op 50566(U) Misc. 3d 1210(A), 1210A, 990 N.Y.S.2d 440 (Sup. Ct. Kings County 2014)............................................................................................................................. 11 Stortini v. Pollis, 138 A.D.3d 977 (2nd Dep’t 2016) ........................................................ 41, 42, 43, 44, 45, 46, 47 Strelsin v. Barrett, 36 A.D.2d 923 (1st Dep’t 1971) ................................................................................................ 11 Stutman v. Chemical Bank, 95 N.Y.2d 24, 709 N.Y.S.2d 892, 731 N.E.2d 608, 2000 N.Y. LEXIS 910 (2000)................. 27 Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915 (1917) ............................................................................................ 5 Team Obsolete Ltd. v. A.H.R.M.A. Ltd, 2002 U.S. Dist. LEXIS (E.D.N.Y. March 15, 2002) ................................................................ 14 Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606 N.E.2d 1300, 665 N.Y.S.2d 17 (1997) ............................................................. 36 Underwager v. Salter, 22 F.3d 730 (7th Cir. 1994) ...................................................................................................... 43 W. Hempstead Water Dist. v. Buckeye Pipeline Co., L.P., 2010 NY Slip Op 33040(U) (Sup. Ct. Nassau County 2010) ................................................... 32 Waggaman v. Arauzo, 117 A.D.3d 724, 985 N.Y.S.2d 281 (2d Dep’t 2014) ............................................................... 21 Walden v. Fiore, 134 S. Ct. 1115 (2014) ........................................................................................................ 21, 22 Wilner v. Allstate Ins. Co., 2010 NY Slip Op 248 A.D.3d 155 (2nd Dep’t 2010) ............................................................... 29 World Skating Fed’n v. Int’l Skating Union, 357 F. Supp. 2d 661 (S.D.N.Y. 2005) ...................................................................................... 12 World—Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................................................................................................................. 19 Yanni v. Variety, Inc., 48 A.D.2d 803, 369 N.Y.S.2d 448 (1975) ................................................................................ 11 vi 7 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Young v. Mallet, 49 A.D.2d 528, 371 N.Y.S.2d 1 (1st Dep’t 1975) .................................................................... 11 Statutes New York General Business Law Section 349 ............................................................................................. 1, 26, 27, 28, 29, 30, 31 New York General Business Law Section 350 ............................................................................................................... 1, 28, 30, 31 New York Social Services Law Section 145-B ................................................................................................................. 1, 38, 39 Rules New York Civil Practice Laws & Rules Rule 301 .............................................................................................................................. 5, 6, 7 New York Civil Practice Laws & Rules Rule 302 ................................................................................ 5, 7, 8, 9, 11, 12, 13, 15, 16, 17, 18 New York Civil Practice Laws & Rules Rule 3211 ........................................................................................................................ 1, 36, 49 New York Civil Practice Laws & Rules Rules 3016 ................................................................................................................................ 46 Regulations 12th Annual Report of New York Judicial Confernece ................................................................ 17 Restatement (Second) of Torts Section 821B ............................................................................................................................. 32 Restatement (Second) of Torts Section 834 ............................................................................................................................... 32 vii 8 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 PRELIMINARY STATEMENT This memorandum of law is submitted on behalf of defendants, Perry Fine (“Dr. Fine”) and Lynn Webster (“Dr. Webster”) (collectively, the “Physician-Defendants”), in support of the within motion seeking an order, pursuant to CPLR 3211(a)(3), CPLR 3211(a)(5), CPLR 3211(a)(7) and CPLR 3211(a)(8), dismissing the claims of plaintiff, The County of Suffolk (“Plaintiff”), for lack of standing, for lack of personal jurisdiction, as barred by applicable statutes of limitation, and for failure to state a claim. Plaintiff alleges six causes of action against all 15 defendants, including the Physician-Defendants: (1) New York General Business Law § 349; (2) New York General Business Law § 350; (3) public nuisance; (4) New York Social Services Law § 145-B; (5) fraud; and (6) unjust enrichment. Defendant, Dr. Russell Portenoy (“Dr. Portenoy”), joins this memorandum of law except with respect to the lack of personal jurisdiction under CPLR 3211(a)(8), which is inapplicable to him. In its complaint (“Complaint”), Plaintiff alleges the existence of a farfetched “coordinated, sophisticated, and highly deceptive marketing campaign” dating back to the 1990s among 11 pharmaceutical companies and four individual physicians (collectively, the “Defendants”) to create a false perception of the safety and efficacy of opioids. Plaintiff claims that because the Defendants allegedly misrepresented and omitted the appropriate uses and risks of opioids, opioid abuse has consequently risen in Suffolk County, New York. Plaintiff further claims that as a direct and foreseeable consequence of Defendants’ actions, the residents of Suffolk County have been injured, and Plaintiff has been required to spend millions of dollars annually in response. The Complaint has a scholarly appearance. It is grammatically sound, offers many interesting statistics, and cites several journal articles and authoritative websites. Perhaps with some revision, refinement, and addition it could itself be published somewhere. But that is 1 9 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 literary form, not legal substance. Simply because something might qualify as a law review article does not mean it contains a viable cause of action, or even comes close. That emphatically applies here. Plaintiff does not even come close. As demonstrated below, Plaintiff’s Complaint completely and fundamentally fails on two critical levels as to the claims against the PhysicianDefendants. First, as a jurisdictional matter, Plaintiff fails to adequately plead that this Court possesses personal jurisdiction over the Physician-Defendants. The Physician-Defendants do not reside in New York, do not own property in New York, do not treat patients in New York, do not conduct any form of business in New York, do not derive substantial revenue from New York, and have never committed any tortious conduct related to New York. Plaintiff, perhaps realizing this absence of a connection to New York, vaguely alleges that the Physician-Defendants are “instrumental in promoting opioids for sale and distribution nationally and in Suffolk County.” Even more, Plaintiff also fails to satisfy the due process requirements for personal jurisdiction over the Physician-Defendants. This is a separate requirement apart from being within the reach of New York’s long-arm statute. Here, Plaintiff fails to properly plead that the PhysicianDefendants (1) have “minimum contacts” with New York State so they could reasonably foresee defending a suit here and that (2) the prospect of defending a suit in New York State comports with traditional notions of fair play and substantial justice. If the Physician-Defendants can be held to answer in Suffolk County, New York, why not in Des Moines, Iowa; Laramie, Wyoming; or Nome, Alaska? Their connection with those fora or myriad others throughout the country is no less than their connection with Suffolk County. The answer to the question is because Due Process forbids it. Moreover, the jurisdictional rules of New York will not allow it here. Putting aside the jurisdictional basis for dismissing this Complaint, substantive reasons also warrant dismissal. As explained below, Plaintiff’s recurring theme throughout the Complaint is to treat all 15 defendants as one group, despite the fact that 11 of the defendants are 2 10 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 corporations and four are individuals. Time and time again, Plaintiff fails to identify how either the Physician-Defendants or Dr. Portenoy (collectively “Individual Defendants”) had any specific connection to any of the causes of action or any alleged injury. Indeed, Plaintiff references them only very sparingly in its Complaint of 74 pages and 251 paragraphs. Excluding the identification of Dr. Fine as a defendant, Plaintiff mentions him only three times, once to note his residency, once to note he served as president of the American Academy of Pain Medicine, and once to vaguely allege he received unidentified “support from Defendants Janseen, Cephalon, Endo, and Purdue.” Dk. 2, ¶¶ 54, 117, 141.1 Excluding the identification of Dr. Webster as a defendant, Plaintiff mentions him only five times, once to note his residency, once to note he served as president of the American Academy of Pain Medicine, once to vaguely allege he “created” the “Opioid Risk Tool … linked to Janssen,” once to allege he “taught” “a 2011 webinar” dealing with opioid use and risk,2 and once to generically allege he wrote a continuing medical education course. Id. at ¶¶ 56, 141, 184, 185, 198. The Individual Defendants are nonetheless prominent academics renowned in the field of pain management. Plaintiff is thus, in essence, suing them for expressing their medical opinions regarding opioids, which are protected by the First Amendment to the United States Constitution. Permitting Plaintiff to bring lawsuits against physicians, especially those who have no connection to New York, would have adverse and disturbing consequences. First, it would create a chilling effect upon the free speech of physicians throughout the country since they will be concerned about their vulnerability to future litigation, especially in places with which they have no relationship or connection. Second, even worse than causing physicians to hold their tongues, permitting these lawsuits may cause physicians to practice “defensive medicine.” In other words, 1 2 All references to “Dk. __” are to the document number of documents filed in this case. Teaching of the webinar is discussed below. 3 11 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 physicians may be afraid of exposure to future lawsuits if they continue to prescribe opioids, and thus will stop prescribing these federally regulated medications to patients who truly need and benefit from them. Third, permitting these lawsuits against individual physicians potentially opens the flood gates to copycat lawsuits brought by the other 61 counties in New York State, as well as counties and boroughs throughout the country.3 Accordingly, this Court should dismiss Plaintiff’s claims against the Individual Defendants. ARGUMENT I. PERSONAL JURISDICTION This Court lacks personal jurisdiction over each of the Physician-Defendants who, as shown below, are not New York residents, do not own property in New York, do not treat patients in New York, transacted no business in New York, did not commit a tort in New York, and did not commit a tort outside New York that caused injury in New York. Personal jurisdiction is a fundamental threshold issue, because when a “court is without personal jurisdiction over [a] defendant,” “all subsequent proceedings [are] rendered null and void.” Cipriano by Cipriano v. Hank, 197 A.D.2d 295, 298 (1st Dep’t 1994). “The burden of proving jurisdiction is upon the party asserting it and when challenged that party must sustain that burden by preponderating evidence.” Dime Sav. Bank v. Steinman, 206 A.D.2d 404, 405, 613 N.Y.S.2d 945, 946 (2d Dep’t 1994)(internal quotes omitted). Especially relevant to the Physician-Defendants, the New York Court of Appeals has instructed that “[p]articular care must be taken to make certain that non-domiciliaries are not haled into court in a manner that potentially chills free speech.” Hollander v. Shepherd, 3 In fact, according to Plaintiff’s counsel, Erie and Broome Counties reportedly have already commenced copycat actions. 4 12 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 2016 NY Slip Op 30042(U) (Sup. Ct. N.Y. County 2016), quoting SPCA of Upstate N.Y., Inc., 18 N.Y. 400, 406 (2012)(non-domiciliary defendants’ motion to dismiss granted based upon “very minimal, attenuated New York contacts.”). Under the New York long-arm statute, there are two ways that a New York court can properly exercise personal jurisdiction over a non-resident defendant: general jurisdiction pursuant to CPLR 301 or specific jurisdiction pursuant to CPLR 302. Under either provision, Plaintiff does not and cannot meet its burden of establishing that New York has personal jurisdiction over the Physician-Defendants. A. The Court Lacks General Jurisdiction Over the Physician-Defendants This Court does not have general jurisdiction over any of the Physician-Defendants because Plaintiff’s claims purportedly arise out of conduct that occurred outside of New York. With respect to general jurisdiction, CPLR 301 provides that “[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore.” Chen v. Guo Liang Lu, 2016 NY Slip Op 07290, *2 (2d Dep’t 2016). “[T]he bases for jurisdiction recognized by our common law before the date of the enactment of the CPLR [were] physical presence within the State, domicile or consent.” Id., quoting Matter of Nilsa B. B. v Clyde Blackwell H., 84 A.D.2d 295, 303, 445 N.Y.S.2d 579 (2d Dep’t 1981). “Pursuant to the ‘doing business’ test first articulated by Judge Cardozo in Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917), corporations have been determined to be ‘present’ in New York, based on their activities within the State. Pichardo v. Zayas, 122 A.D.3d 699, 702 (2d Dep’t 2014). However, in January 2014, the U.S. Supreme Court held that, under the protection afforded by the Due Process Clause of the U.S. Constitution, a court (federal or state) can exercise general jurisdiction over a corporation only if the corporation’s “affiliations with the State [are] so continuous and systematic as to render [it] essentially at home in the forum 5 13 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 State.” Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014)(quotation omitted). “Since Daimler, New York courts have recognized that ‘doing business’ in New York is no longer a constitutionally sufficient basis for the exercise of general jurisdiction over foreign entities.” Ace Decade Holdings Ltd. v. UBS AG, 2016 NY Slip Op 32415(U), ¶ 12 (Sup. Ct. N.Y. Co. Dec. 7, 2016); see also Norex Petroleum Ltd. v. Blavatnik, 2015 NY Slip Op 51280(U), *48 (Sup. Ct. N.Y. Co. Aug. 25, 2015)(Bransten, J.)(“Daimler brought an end to doing business jurisdiction [under CPLR 301].”)(internal quotations omitted). In order to exercise general jurisdiction over an individual, “the paradigm forum…is the individual’s domicile,” whereas for a corporation “it is an equivalent place, one in which the corporation is fairly regarded as at home.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853-54, 180 L. Ed. 2d 796 (2011); Daimler AG v. Bauman, 134 S. Ct. 746, 760, 187 L. Ed. 2d 624 (2014). However, the Second Department itself appears split over whether an individual is subject to the “doing business” test under CPLR 301. Contrast Okeke v. Momah, 2015 NY Slip Op 07252, *1, 132 A.D.3d 648, 649, 17 N.Y.S.3d 746, 748 (2d Dep’t 2015)(“[a]n individual cannot be subject to jurisdiction under CPLR 301 unless he [or she] is doing business in New York as an individual rather than on behalf of a corporation”), with Pichardo v. Zayas, 122 A.D.3d 699, 703 (2d Dep’t 2014)(“[s]ince the enactment of CPLR 301 did not expand the scope of the existing jurisdictional authority of the courts of the State of New York, that section does not permit the application of the ‘doing business’ test to individual defendants”.). Nonetheless, whether or not the “doing business test” applies to individuals such as the Physician-Defendants ultimately does not matter, because Plaintiff cannot meet the requirements under any test. The Physician-Defendants are medical doctors whose professional activities focus on treating patients and conducting research outside of New York. See affidavits of Dr. Perry Fine (“Fine Aff.”) and Dr. Lynn Webster (“Webster Aff.”) 6 14 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 attached as exhibits 1 and 2, respectively, to the affirmation of Ryan Sestack. Neither of the Physician-Defendants was served with process while physically present in New York. Neither of the Physician-Defendants consented to jurisdiction in New York. Additionally, neither of the Physician-Defendants is domiciled in New York. Fine Aff. ¶ 2; Webster Aff. ¶ 2. Even if the “doing business test” under CPLR 301 applied to the PhysicianDefendants, it would still fail. Neither one of the Physician-Defendants does business in New York. Fine Aff. ¶¶ 3, 4, 5, 6, 11, 12; Webster Aff. ¶¶ 2, 4 5, 10. Neither one of the Physician-Defendants solicits business in New York. Fine Aff. ¶¶ 3, 4, 5, 6, 10, 11, 12; Webster Aff. ¶¶ 3, 4 5, 9. Neither one of the Physician-Defendants has an office in New York. Fine Aff. ¶ 3, 4 5; Webster Aff. ¶ 3, 4, 5. Neither one of the Physician-Defendants owns an interest in real property in New York. Fine Aff. ¶ 13; Webster Aff. ¶ 12. Therefore, neither one of the Physician-Defendants does business in New York. It follows that the Physician-Defendants’ contact with New York cannot be considered continuous and systematic as to render them essentially at home in New York. Thus, this Court lacks general jurisdiction over Physician-Defendants under CPLR 301. See, e.g., Laufer v. Ostrow, 55 N.Y.2d 305, 313 (1982). B. The Long-Arm Statute does not Reach the Physician-Defendants Plaintiff fails to establish long-arm jurisdiction over the Physician-Defendants under CPLR 302(a) because Plaintiff does not and cannot show that the Physician-Defendants, “in person or through an agent,” did any of the following acts, which gave rise to a cause of action: 1. transacted any business within the state or contracts anywhere to supply goods or services in the state; or 2. committed a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 7 15 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 3. committed a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owned, used or possessed any real property situated within the state. Competitive Tech., Inc. v. Pross, 14 Misc. 3d 1224(A), 1224A, 836 N.Y.S.2d 492, 492 (Sup. Ct. Suffolk County January 26, 2007), quoting CPLR 302(a). In assessing whether nondomiciliaries, like the Physician-Defendants, are subject to specific jurisdiction in New York, a court must “first determine whether [the] long-arm statute (CPLR 302) confers jurisdiction,” and second, “whether the exercise of jurisdiction comports with due process.” LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214 (2000). Here, Plaintiff fails both tests. (1) The Court Lacks Jurisdiction Under CPLR 302(a)(1) No basis for jurisdiction exists under CPLR 302(a)(1) because neither one of the Physician-Defendants transacted any business within New York. Plaintiff did not and cannot identify a single transaction entered into by either of the Physician-Defendants in New York whereby they purposefully availed themselves of the privilege of transacting business within the state. Fischbarg v. Doucet, 9 N.Y.3d 375 (2007). To determine whether jurisdiction is proper under section CPLR 302(a)(1), a court must analyze (1) whether the defendant transacts any business in New York and, if so, (2) whether the cause of action arises from such a business transaction. Opticare Acquisition Corp. v. Castillo, 25 A.D.3d 238, 239 (2d Dep’t 2005). With respect to 302(a)(1), “the first requirement is that there be a transaction of business within New York.” Id. at 243. (emphasis in original). What constitutes a “transaction of business” has not been precisely defined. Id. “Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an 8 16 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 examination of the totality of the circumstances.” Farkas v. Farkas, 36 A.D.3d 852, 853 (2d Dep’t 2007). Moreover, for CPLR 302(a)(1) to apply, “the cause of action [must] arise from the non-domiciliary’s actions that constitute [a] transaction of business” in New York. Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 379 (2014)(emphasis added). Here, neither one of the Physician-Defendants transacts business or treats patients in New York. Fine Aff. ¶¶ 3, 4, 5, 6, 11, 12; Webster Aff. ¶¶ 3, 4, 5, 10, 11. Thus, Plaintiff seemingly attempts to link each of the Physician-Defendants to New York by claiming that their books, journal articles, and other written works and utterances – characterized in the Complaint as “promoting opioids for sale,” which allegedly were “distributed nationally,” are accessible on the Internet by the residents of Suffolk County. Dk. 2, ¶¶ 52-56, 113, 114, 118. Plaintiff, however, never alleges that either of the Physician-Defendants authored their works in New York. Id., generally. Nor does Plaintiff allege that they specifically directed their medical opinions at Suffolk County residents. Id. Nor could Plaintiff honestly make such allegations. Fine Aff. ¶ 16; Webster Aff. ¶ 14. The New York Court of Appeals has held that such circumstances are insufficient to find personal jurisdiction under CPLR 302(a)(1). See SPCA of Upstate N.Y., Inc. v. Am. Working Collie Assn., 2012 NY Slip Op 857, *4, 18 N.Y.3d 400, 405, 940 N.Y.S.2d 525, 528, 963 N.E.2d 1226, 1229 (2012) (affirming dismissal pursuant to CPLR 302(a)(1) because the statements posted on an organization’s website “were not written in or directed to New York” and, although “they were posted on a medium that was accessible in this state, the statements were equally accessible in any other jurisdiction.”). Taking Plaintiff’s apparent position to its logical conclusion, if each of the PhysicianDefendants is deemed to have “transacted business” in New York simply by virtue of having written something that can be accessed by people in the state of New York, then everyone in the world, or at least the country, who posts anything on the Internet or has a book published would 9 17 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 thus be deemed to have conducted business in New York, thereby being subject to personal jurisdiction. That is not the law because that is not how New York’s long-arm statute works. Although there is no allegation that the Physician-Defendants operated commercial websites, New York courts, both federal and state, have routinely held that maintaining a website that is accessible in New York, but does not specifically target New York residents, is insufficient to support personal jurisdiction. See O'Keefe v. Blue & Gold Fleet, L.P., 634 F. Supp. 2d 284, 287 (E.D.N.Y. 2009)(Plaintiff does not allege that the Defendant purposefully solicits New York customers or that its website is in any way targeted towards New York); ISI Brands, Inc. v. KCC Intern., Inc., 458 F. Supp.2d 81, 87-88 (E.D.N.Y. 2006) (noting that “[e]ven the existence of an interactive ‘patently commercial’ website that can be accessed by New York residents is not sufficient to justify the exercise of personal jurisdiction unless some degree of commercial activity occurred in New York.”); Savage Universal Corp. v. Grazier Constr., Inc., 2004 U.S. Dist. LEXIS 16088 at *9 (S.D.N.Y. Aug. 13, 2004)(“It stretches the meaning of ‘transacting business’ to subject defendants to personal jurisdiction in any state merely for operating a website, however commercial in nature, that is capable of reaching customers in that state, without some evidence or allegation that commercial activity in that state actually occurred.”); Rosenberg v. PK Graphics, 2004 U.S. Dist. LEXIS 8266, at *1 (S.D.N.Y. May 10, 2004)(“While some courts have held that a highly interactive website may give rise to personal jurisdiction where otherwise there would have been none . . . in all such cases . . . the plaintiff first established some further contact with the forum state.”); SPCA of Upstate N.Y., Inc. v. Am. Working Collie Assn., 2012 NY Slip Op 857, *4, 18 N.Y.3d 400, 405, 940 N.Y.S.2d 525, 528, 963 N.E.2d 1226, 1229 (2012)(“[I]t is of importance that the statements were not written in or directed to New York. While they were posted on a medium that was accessible in this state, the statements were equally accessible in any other jurisdiction.”); Armouth Int’l, Inc. v. Haband 10 18 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Co., 277 A.D.2d 189, 190 (2d Dep’t 2000)(motion to dismiss upheld when plaintiff failed to sustain its prima facie burden of establishing a substantial relationship between the Internet activity and cause of action); Steinmetz v. Energy Automation Sys., Inc., 2014 NY Slip Op 50566(U), *7, 43 Misc. 3d 1210(A), 1210A, 990 N.Y.S.2d 440, 440 (Sup. Ct. Kings County 2014)(“personal jurisdiction cannot be based upon a website where it is informational only and, thus, passive in nature.”). Furthermore, when a non-domiciliary defendant’s out-of-state pronouncements enter New York as a result of a publisher’s routine distribution, courts hold that the defendant has not transacted business in New York. See Competitive Tech., Inc. v. Pross, 2007 NY Slip Op 50161(U), *3, 14 Misc. 3d 1224(A), 1224A, 836 N.Y.S.2d 492, 492 (Sup. Ct. Suffolk County 2007); Montgomery v. Minarcin, 263 A.D.2d 665, 693 N.Y.S.2d 293 (1999); Yanni v. Variety, Inc., 48 A.D.2d 803, 369 N.Y.S.2d 448 (1975); Strelsin v. Barrett, 36 A.D.2d 923 (1st Dep’t 1971). Neither can Plaintiff successfully argue that the Physician-Defendants’ writings are goods or services rendered for the purposes of CPLR 302(a)(1). See Young v. Mallet, 49 A.D.2d 528, 529, 371 N.Y.S.2d 1, 3 (1st Dep’t 1975)(“Books are not used or consumed nor are they services rendered.”). Thus, the Physicians-Defendants have not transacted business in New York within the meaning of CPLR 302(a)(1). (2) The Court Lacks Jurisdiction Under CPLR 302(a)(2) No basis for jurisdiction exists under CPLR 302(a)(2) because Plaintiff does not, and cannot, adequately allege that the Physician-Defendants committed a tortious act within New York that gave rise to this action. “CPLR 302(a)(2) has been narrowly construed to apply only when the defendant’s wrongful conduct is performed in New York.” McCracken v. Adams, 2016 NY Slip Op 30492(U), *5 (Sup. Ct. New York County 2016)(citing Feathers v. McLucas, 15 N.Y.2d 443, 448, 209 N.E.2d 68, 261 N.Y.S.2d 8 (1965)). This, 11 19 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 alone, is fatal to finding jurisdiction pursuant to CPLR 302(a)(2), because Plaintiff has not alleged that the Physician-Defendants conducted a tortious act in New York. Moreover, Plaintiff fails to establish jurisdiction under CPLR 302(a)(2) based on a conspiracy theory. “For jurisdictional purposes, a co-conspirator will be considered an agent of another co-conspirator for actions relating to the conspiracy.” Norex Petroleum Ltd. v. Blavatnik, 2015 N.Y. Misc. LEXIS 3136, *38, 48 Misc. 3d 1226(A), 22 N.Y.S.3d 138 (Sup. Ct. New York County 2015). To assert jurisdiction over non-domiciliary defendants under CPLR 302(a)(2), Plaintiff must plead that “(a) the defendant had an awareness of the effects in New York of its activity; (b) the activity of the co-conspirators in New York was to the benefit of the out-of-state conspirators; and (c) the co-conspirators acting in New York acted at the direction or under the control, or at the request of or on behalf of the out-of-state defendant.” Lawati v. Montague Morgan Slade Ltd., 102 AD3d 427, 428, 961 N.Y.S.2d 5 (1st Dep't 2013). While some courts have held that under CPLR 302(a)(2) “the acts of a co-conspirator within the state may be attributed to an out-of-state defendant for the purpose of obtaining personal jurisdiction over that defendant,” see e.g., Grosser v. Commodity Exchange, Inc., 639 F. Supp. 1293, 1308 (S.D.N.Y. 1986), these cases are unanimous that a “bland assertion” of a conspiracy is insufficient to establish personal jurisdiction under New York’s long-arm statute. World Skating Fed’n v. Int’l Skating Union, 357 F. Supp. 2d 661, 665 (S.D.N.Y. 2005), quoting Lehigh Valley Indus., Inc. v. Lehigh Colonial Corp., 527 F.2d 87, 93-94 (2d Cir. 1975). Rather, to establish jurisdiction on the basis of an alleged conspiracy, Plaintiff must clear two hurdles: (1) it must make a prima facie showing of a conspiracy; and (2) it must allege specific facts warranting the inference that the defendant was a member of the conspiracy. 777388 Ontario 12 20 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Ltd. v. Lencore Acoustics Corp., 142 F. Supp. 2d 309, 318 (E.D.N.Y. 2001), citing Singer v. Bell, 585 F. Supp. 300, 303 (S.D.N.Y. 1984)). Under New York law, a prima facie showing of a conspiracy requires an allegation of a primary tort and four additional elements: (1) a corrupt agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury. Best Cellars, Inc. v. Grape Finds at Dupont, Inc., 90 F. Supp. 2d 431, 446 (S.D.N.Y. 2000). To allege facts warranting the inference that the defendant was a member of the conspiracy, a plaintiff may claim that: (a) the defendant had an awareness of the effects in New York of its activity; (b) the activity of the coconspirators in New York was to the benefit of the out-of-state conspirators; and (c) the coconspirators acting in New York acted at the direction or under the control, or at the request of or on behalf of the out-of-state defendant. Lawati, 102 AD 3d at 428. Plaintiff’s allegations fail to clear either hurdle. The Complaint contains nothing more than conclusory allegations of a conspiracy and a convoluted diagram, attached as an exhibit, purporting to demonstrate the “relationships between corporate and Physician Defendants, uses of Front Groups and Selective Deceptive Marketing Materials and Resources.” Dk. 3. Plaintiff offered no factual allegations of the existence of a conspiracy or any factual allegations about the Physician-Defendants participating in a conspiracy. Dk 2, generally. The Complaint lacks any detail of a conspiratorial agreement made by the Physician-Defendants or any overt act undertaken by them in furtherance of such an agreement. Id. At most, the diagram evidences routine professional relationships among the Defendants (and others), which utterly fail to demonstrate the requisite agency relationship for asserting person jurisdiction under CPLR 302(a)(2). See BHC Interim Funding v Bracewell & Patterson, 2003 U.S. Dist. LEXIS 10739 at * 16-17 (S.D.N.Y. June 25, 2003)(allegations that implicate only a normal business relationship, 13 21 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 and not a principal-agent relationship are insufficient to support the co-conspirator theory of personal jurisdiction); Team Obsolete Ltd. v. A.H.R.M.A. Ltd, 2002 U.S. Dist. LEXIS 10737 at *8-9 (E.D.N.Y. March 15, 2002)(mere professional relationship will not support an inference that a corrupt agreement and conspiracy existed between them). Even if, for the sake of argument, Plaintiff’s ad hoc diagram establishes a prima facie showing of conspiracy, the Complaint fails to allege a single fact to warrant an inference that the Physician-Defendants were members of the alleged conspiracy. Plaintiff does not allege that the Physician-Defendants had an awareness of any effects in New York, that any acts by a New York co-conspirator were for the benefit of the Physician-Defendants, or that any New York coconspirator acted at the direction, control, or request of the Physician-Defendants. Indeed, far from alleging that the pharmaceutical companies were controlled by the PhysicianDefendants or any of the other individual physicians, the Complaint suggests the contrary: that the pharmaceutical companies controlled the Individual Physicians. Dk. 2, ¶¶ 91, 94, 99, 109, 117, 137, 141, 143, 148, 187, 192, 196, 203, 216; Dk. 3.4 Because Plaintiff does not claim, and cannot credibly claim, that the huge, multi-national pharmaceutical companies “acted at the direction or under the control, or at the request of or on behalf of” the Physician-Defendants, Plaintiff’s “conspiracy jurisdiction” theory fails for that reason among others. Lawati, 102 AD3d at 428. But that is not the only fatal flaw in Plaintiff’s conspiracy jurisdiction theory. Plaintiff also fails to offer any factual allegations that allow an inference that the PhysicianDefendants had any awareness that their actions would cause an effect in New York. See Norex Petroleum Ltd. v. Blavatnik, 2015 NY Slip Op 51280(U), 48 Misc. 3d 1226(A), 22 4 Exhibit A to the Complaint, Dk. 3, contains arrows leading from the pharmaceutical companies and pointing toward the individual physicians, thereby implying the companies influence and control the physicians. 14 22 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 N.Y.S.3d 138 (Sup. Ct. New York County 2015)(finding no personal jurisdiction pursuant to CPLR 302(a)(2) where nonresident defendants had no awareness of any effects in New York.). The Complaint lacks the requisite factual allegations because the Physician-Defendants were not members of any alleged conspiracy. The Physician-Defendants simply authored medical guidelines, journal articles, and books outside of New York. Neither the content of these medical opinions nor their promotion or distribution targeted New York residents. Fine Aff. ¶ 16; Webster Aff. ¶ 15. Given that the Physician-Defendants never targeted New York residents, there is simply no way Plaintiff can adequately allege that they were aware that their activities outside New York would have any effect in New York. Similarly, Plaintiff does not and cannot adequately allege that the activities of the purported co-conspirators in New York were to the benefit of the Physician-Defendants. Any benefit derived from the marketing or distribution of opioids in New York is captured by the pharmaceutical companies that engage in such efforts. It strains credulity to suggest that the New York activities of these huge, multinational pharmaceutical companies inured to the benefit of the non-resident PhysicianDefendants. The Court therefore lacks personal jurisdiction over the Physicians-Defendants under CPLR 302(a)(2). (3) The Court Lacks Jurisdiction Under CPLR 302(a)(3) No basis for jurisdiction exists under CPLR 302(a)(3). CPLR 302(a)(3)(i) provides that a New York court has personal jurisdiction over a non-domiciliary who committed a tortious act outside of New York, causing injury in New York, but only if he also “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state.” CPLR 302(a)(3)(i). 15 23 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Here, the Physician-Defendants have not committed a tortious act outside of New York. Rather, they have done nothing more than engage in protected free speech by offering their medical opinions through medical guidelines, journal articles, and books. Even if Plaintiff could properly allege the Physician-Defendants committed a tort outside of New York, the PhysicianDefendants did not and do not regularly conduct business in New York, did not and do not engage in a persistent course of conduct in New York, and did not and do not derive substantial revenue from services in New York. Fine Aff.. ¶¶ 3, 4, 5, 6, 15, 16; Webster Aff. ¶¶ 3, 4, 5, 11, 13. As aforementioned, the Physician-Defendants treated no patients in New York and did not author their medical opinions in New York. Fine Aff. ¶¶ 3, 4, 12, 16, 17; Webster Aff. ¶¶ 3, 4, 5, 11, 15, 16. Also, as previously discussed, Plaintiff attempts to link the Physician-Defendants to New York by claiming that their books, journal articles, and other written works are readily accessible on the Internet by the residents of New York. Dk. 2, ¶¶ 113, 114, 118. Plaintiff’s attempt fails because New York courts have routinely dismissed cases in which plaintiffs have attempted to invoke New York personal jurisdiction through Internet accessibility. See Kent v. Dometic, LLC, 2012 NY Slip Op 51519(U), *2, 36 Misc. 3d 1226(A), 1226A, 959 N.Y.S.2d 89 (N.Y. Sup. Ct. 2012)(the ability to purchase products online is insufficient to constitute “regularly soliciting business”); Competitive Tech., Inc. v. Pross, 2007 NY Slip Op 50161(U), *4, 14 Misc. 3d 1224(A), 1224A, 836 N.Y.S.2d 492, 492 (Sup. Ct. Suffolk County 2007). Thus, in this case, the Court cannot exercise personal jurisdiction pursuant to CPLR 302(a)(3)(i). Turning to CPLR 302(a)(3)(ii), it provides that a New York court has long-arm jurisdiction over a non-domiciliary who committed a tortious act outside of New York if he “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” CPLR 302(a)(3)(ii). The New York Court of Appeals has explained that Section 302(a)(3)(ii) requires a showing that: “(1) the 16 24 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 defendant committed a tortious act outside New York; (2) the cause of action arises from that act; (3) the act caused injury to a person or property within the State; (4) defendant expected or should reasonably have expected the act to have consequences in the State; and (5) the defendant derived substantial revenue from interstate or international commerce.” LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214 (2000). Here, Plaintiff has not alleged, and cannot allege, any of these essential elements. First, Plaintiff has failed to adequately plead that the Physician-Defendants committed a tort, much less a tort outside of New York. Second, Plaintiff fails to properly link its claims against the Physician-Defendants to their alleged acts. Third, Plaintiff fails to articulate how, in detail, the Physician-Defendants’ alleged actions injured people within New York,. Fourth, Plaintiff fails to plead how the Physician-Defendants, located thousands of miles away from New York, should have reasonably expected their actions to have consequences in New York. Lastly, Plaintiff is unable to satisfy the fifth element of CPLR 302(a)(3)(ii), which requires a defendant who is a non-domiciliary of New York to derive substantial revenue from interstate or international commerce. The purpose of this element is to preclude the exercise of jurisdiction over non-domiciliaries whose business operations are “of a local character.” LaMarca, 95 N.Y.2d at 215. The New York Judicial Conference described the interstate commerce prong of Section 302(a)(3)(ii) as requiring a showing that a defendant “was engaged in extensive business activities on an interstate or international level.” See 12th Ann. Report of NY Jud. Conf., at 342-343, cited in Ingraham v. Carroll, 90 N.Y.2d 592, 599 (1997). For example, the New York Court of Appeals held that a physician who practiced only in Vermont and earned his entire revenue from his local medical services did not derive “substantial interstate revenue” as contemplated by CPLR § 302 (a)(3)(ii). Ingraham, 90 N.Y.2d at 600. “Unlike a manufacturer who introduces a product into the stream of commerce expecting 17 25 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 it to be sold in other States, a physician treating patients in his or her home State is providing a service that is inherently personal, and local, in nature.” Id. at 599-600. Similarly, here, the Physician-Defendants are simply medical doctors who each derive the overwhelming majority of their income from their practice of medicine, which is conducted exclusively outside of New York. Fine Aff. ¶¶ 3, 4, 5, 11, 12, 15; Webster Aff. ¶¶ 3, 4. The Physician-Defendants are neither manufacturers of products nor engaged in extensive business activities on an interstate or international level, as required under 302(a)(ii). Fine Aff. ¶¶ 3, 4, 5, 6; Webster Aff. ¶¶ 3, 4, 5. Thus, the Court cannot exercise personal jurisdiction pursuant to that provision. (4) The Court Lacks Jurisdiction Under CPLR 302(a)(4) Lastly, the Court cannot exercise personal jurisdiction over the Physician-Defendants pursuant to CPLR 302(a)(4) because the Complaint fails to allege that the PhysicianDefendants own, use, or possess any real property within New York. Dk. 2, ¶¶ 54-56; Hopstein v Cohen, 2016 NY Slip Op 06803, *3 (2d Dep’t 2016)(ruling that CPLR 302(a)(4) does not provide a basis for personal jurisdiction because there was no allegation that defendant owned, used, or possessed real property in New York). Moreover, the affidavits of the Physician-Defendants further demonstrate they do no own, use, or possess any real property within New York. Fine Aff. ¶ 13; Webster Aff. ¶ 12. Therefore, in light of the foregoing, no jurisdiction over the Physician-Defendants exists under CPLR 302(a). Accordingly, this Court need not conduct a Due Process analysis. See Greco v. Ulmer & Burne L.L.P., 2009 NY Slip Op 29054, *12 (Sup. Ct. Kings County 2009)(non-domiciliary defendants’ motion to dismiss granted where the circumstances of this case, when viewed in their totality, were insufficient to subject the defendants to the jurisdiction of this court because the minimum contacts necessary to meet due process requirements have not been met). 18 26 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 C. Exercising Jurisdiction over Physician-Defendants Would Offend Due Process Even if this Court somehow found personal jurisdiction over the PhysicianDefendants through New York’s long-arm statute, its exercise over out-of-state physicians who simply offered their medical opinions would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997). Personal jurisdiction over a non-domiciliary defendant comports with due process only where the defendant has certain minimum contacts with the forum “such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The “minimum contacts” test is satisfied when has a defendant’s “conduct and connection with the forum State” are such that it “should reasonably anticipate being haled into court there.” World— Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Further, “[m]inimum contacts alone do not satisfy due process. The prospect of defending a suit in the forum State must also comport with traditional notions of ‘fair play and substantial justice.’” LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210, 217, 735 N.E.2d 883, 713 N.Y.S.2d 304 (2000), quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). “This is in essence another way of asking what is reasonable” based upon various considerations, including the burden on the defendant, the interest of the forum state, and the plaintiff's interest in obtaining relief. Id. A court may, consistent with due process, only exercise specific personal jurisdiction over a non-resident defendant who has “purposefully directed” his activities at the forum state and where a cause of action “arises out of or relates to” the non-resident defendant’s contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). Thus, in order for the Court to exercise specific personal jurisdiction over the Physician-Defendants consistent with due process, 19 27 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Plaintiff must adequately allege: (1) each of its claims “arises out of or relates to” the PhysiciansDefendants’ activities within New York and (2) the Physician-Defendants “purposefully directed [their] activities” at New York residents. The fact that none of the Plaintiff’s claims “arise out of” the Physician-Defendants’ tenuous connections with New York is determinative and requires that Plaintiff’s claims be dismissed. Second Circuit cases “upholding specific personal jurisdiction on the basis of limited contacts with the forum have involved no less than a ‘but for’ connection between the defendant’s forum-directed activities and the claim.” See In re Libor-Based Financial Instruments Litigation, No. MDL 2262 NRB, 2015 WL 4634541, at *22-23 (S.D.N.Y. 2015). The requirement of a ‘but for’ connection between the Physician Defendants’ minimal and tenuous contacts with New York and Plaintiff’s claims cannot be met. It defies logic to suggest that any rise in opioid abuse let alone the socioeconomic injuries claimed by Plaintiff as a result of opioid abuse in Suffolk County would not have occurred but for the authorship and publication of the PhysicianDefendants’ medical opinions. In fact, there is no connection – much less a “but for” connection – between the Physician-Defendants’ medical opinions and the Plaintiff’s claimed injuries. The PhysicianDefendants have no connection to the prescription or availability of opioids in Suffolk County. The FDA, pharmaceutical companies, and New York physicians control the availability and prescription of opioids in Suffolk County. Even Plaintiff’s conclusory allegation that the Physician-Defendants were “instrumental in promoting opioids for sale and distribution nationally and in Suffolk County” highlights the lack of a ‘but for’ connection between the Physician-Defendants’ tenuous New York contacts and Plaintiff’s claims. Plaintiff fails to allege that physicians prescribing opioids in Suffolk County or that Suffolk County residents read, let alone or relied on, any medical opinion authored by any of the Physician-Defendants. Given the lack of any “but for” relationship between the PhysicianDefendants’ conduct and the opioid abuse allegedly experienced in Suffolk County, the specific jurisdiction analysis can and should end there. But, it is also true that the requirement of purposeful availment for the exercise of personal jurisdiction is absent here. Plaintiff does not and cannot alleged any purposeful activity by the Physician20 28 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Defendants in New York. As aforementioned, the Physician-Defendants do not live in New York, do not treat patients in New York, do not conduct business in New York, do not own real estate in New York, and have few, if any, connections to New York. Thus, they have not sought to avail themselves of New York’s benefits, whether through business, by living, or by owning real property. Fine Aff. ¶¶ 2, 3, 4, 5, 6, 13; Webster Aff. ¶¶ 2, 3, 4, 5, 12. Therefore, Plaintiff has not satisfied the requisite “minimum contacts” analysis set forth in International Shoe Co. v Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). See Waggaman v. Arauzo, 117 A.D.3d 724, 726, 985 N.Y.S.2d 281 (2d Dep’t 2014)(citing Walden v. Fiore, 571 U.S. 1115, 1122, 134 S Ct 1115, 188 L. Ed. 2d 12 (2014))(“a plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.”). Although it is difficult to determine how the Complaint, given its imprecision, ties the Physician-Defendants to New York, Plaintiff would apparently argue that the PhysicianDefendants, through their publishing and speaking roles, directed their activity toward New York. This apparent argument would utterly fail. The author of an article published in a print newspaper or magazine is subject to personal jurisdiction only when the author’s “actions are expressly aimed” at the forum state, the focal point of the story is the forum state, and the brunt of the harm is suffered in that state. Chaiken v. VV Publ. Corp., 119 F.3d 1018, 1029 (2d Cir. 1997) (holding under International Shoe that the author of a newspaper article was not subject to personal jurisdiction because he “did not expressly aim” his action at the forum state and “had no reasons to think that the brunt of the harm would be felt there.”). In the present case, the Physician-Defendants never made New York a focal part, or any part, of their published works, nor did they “expressly aim” their works toward New York residents. Thus, forcing the Physician-Defendants to defend themselves in a lawsuit thousands of miles away from their 21 29 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 residences would offend “traditional notions of fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S 462, 476 (1985); see also Luberda v. Purdue Frederick Corp., Civil Action No. 4:13-cv-00897-RBH, 2014 U.S. Dist. LEXIS 41951, at *12 (D.S.C. Mar. 28, 2014)(granting Dr. Fine’s and Dr. Webster’s motion to dismiss based upon lack of personal jurisdiction and due process in South Carolina, where that “state’s long arm statute is coextensive with the limits set by the due process clause.”) Additionally, any theory based on conspiracy jurisdiction should be rejected as inconsistent with due process. In Walden v. Fiore, 134 S. Ct. 1115 (2014), the Supreme Court emphasized that “[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State,” not based on “contacts he makes by interacting with other persons affiliated with the State.” Walden, 134 S. Ct. at 1123, 1125. Personal jurisdiction must be based upon “contacts the defendant himself creates with the forum State,” and cannot be based simply upon the contacts of so-called “co-conspirators” or other third parties. Id. at 1122 (citation and internal quotation marks omitted). No such contacts are alleged here, nor can they truthfully be alleged in regard to the Physician-Defendants. If personal jurisdiction based on a conspiracy theory can ever comport with due process, a plaintiff must alleged, at the very least, that each defendant had direction or control over a co-conspirator’s tortious acts in the relevant forum, such that the defendant has availed itself of the forum through the defendant’s conduct in the conspiracy. Plaintiff makes no such allegations here. To hold that the attenuated forum contacts of a defendant’s alleged co-conspirators alone — without allegations the defendant even knew of or benefited from those forum contacts, much less directed or caused them to be made — can confer jurisdiction would violate traditional notions of fair play and substantial justice. In light of the foregoing, the claims against the Physician-Defendants should be 22 30 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 dismissed for lack of personal jurisdiction. II. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION A. Adoption and Incorporation As established during the pre-motion telephone conference with the Court on January 11, 2017, the Individual Defendants deadline to file their motions to dismiss was set for two weeks after the deadline for the corporate defendants (“Pharmaceutical Defendants”).5 This was done in the interest of judicial economy to permit the Individual Defendants to join the motions of the Pharmaceutical Defendants and to adopt and incorporate by reference any applicable portions of the Pharmaceutical Defendants’ briefs, so as to avoid any unnecessary duplication. If the Court does not dismiss all claims against the Physician-Defendants on the basis of lack of personal jurisdiction, discussed above, more than adequate grounds exist in the Pharmaceutical Defendants’ joint memorandum to warrant dismissal of all claims against them and Dr. Portenoy, as the joint memorandum utterly devastates all of Plaintiff’s claims. The Individual Defendants hereby join the motion of the Pharmaceutical Defendants and adopt and incorporate by reference the legal arguments contained in the Pharmaceutical Defendants’ joint memorandum of law (“Joint Memorandum”)6 as follows: • Section II, titled “Legal Standard”; • Section III A. 1., titled “The County’s Own Complaint Negates the Alleged Fraud”; • Section III A. 2., titled “The Complaint Is Replete with Improper Group Pleading,” excluding the factual details pertaining only to the Pharmaceutical Defendants; 5 The Pharmaceutical Defendants are Purdue Pharma L.P., Purdue Pharma Inc., The Purdue Frederick Company, Inc., Teva Pharmaceuticals USA, Inc., Cephalon Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., OrthoMcNeil-Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica Inc., Endo Health Solutions Inc., and Endo Pharmaceuticals Inc. 6 The Joint Memorandum is docket number 117. 23 31 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 • RECEIVED NYSCEF: 02/06/2017 Section III A. 3., titled “The Complaint Fails to Plead the Alleged Fraud by Each Defendant with Sufficient Particularity”; • Section III A. 4., titled “The Complaint’s Conspiracy Allegations Do Not Cure the County’s Failure to Plead the Alleged Fraud with Particularity”; • Section III B., titled “All Claims Fail Because the Complaint Does Not Adequately Plead Causation”; • Section III B. 1., titled “The Complaint Fails to Allege That the Purported Misrepresentations Were the Actual Cause of Reimbursement Decisions”; • Section III B. 2., titled “The Complaint Fails to Allege That the Purported Misrepresentations Were the Actual Cause of Prescribing Decisions”; • Section III B. 3., titled “The Complaint Fails to Allege That the Purported Misrepresentations Proximately Caused Reimbursement or Prescribing Decisions”; • Section III C. 1., titled “The Complaint Fails to Allege an Ineffective or Harmful Prescription”; • Section III C. 2., titled “The County Cannot Recover for Derivative Injuries”; • Section III C. 3., titled “The County Cannot Sue Parens Patriae or Recover Public Expenditures It Has Made in Its Governmental Capacity”; • Section III D. 1., titled “The GBL §§ 349-350 and Common Law Fraud Claims (Counts I, II, and V) Must Be Dismissed”; excluding the factual details pertaining only to the Pharmaceutical Defendants; • Section III D. 2., titled “The Public Nuisance Claim (Count III) Must Be Dismissed”; • Section III D. 2. a., titled “The Complaint Fails to Plead a Substantial Interference with a Public Right in Suffolk County”; 24 32 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 • RECEIVED NYSCEF: 02/06/2017 Section III D. 2. b., titled “The Complaint Fails to Plead Defendants Proximately Caused the Alleged Public Nuisance”; • Section III D. 3., titled “The Soc. Serv. Law § 145-b Claim (Count IV) Must Be Dismissed”; • Section III D. 3. a., titled “The Complaint Fails to Plead Defendants Attempted to Obtain or Obtained Payment From Public Funds Under § 145-b”; • Section III D. 3. b., titled “The Complaint Fails to Plead Defendants Made Any ‘False Statement or Representation’ Under § 145-b”; • Section III D. 4., titled “The Unjust Enrichment Claim (Count VI) Must Be Dismissed”; and • Section III D. 5., titled “All Claims Must Be Dismissed To the Extent They are Based on Conduct Occurring Outside the Applicable Statute of Limitations Period.” The Individual Defendants also hereby join the motion of the Pharmaceutical Defendants and adopt and incorporate by reference the legal arguments contained in the Pharmaceutical Defendants’ memorandum of law in support of their motion to preclude payment to Plaintiff’s outside counsel on a contingency-fee basis.7 The Individual Defendants adopt and incorporate by reference the entirety of that brief. Additionally, if the Court does not dismiss all of the claims against the PhysicianDefendants on any of the foregoing grounds, and any claims against any of them should remain, the Physician-Defendants then join the motion of the Pharmaceutical Defendants and adopt and incorporate by reference the legal arguments contained in the Pharmaceutical Defendants’ memorandum of law in support of their motion to stay this action under the primary jurisdiction 7 This memorandum of law is docket number 52. 25 33 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 doctrine and the Court’s inherent authority to stay proceedings.8 The Physician-Defendants adopt and incorporate by reference the entirety of that brief, but again only to the extent that any claims against any of them survive dismissal. Finally, the Individual Defendants adopt and incorporate by reference the legal argument in Section II A. of the memorandum of law submitted by Endo Health Solutions, Inc. and Endo Pharmaceuticals Inc (“Endo Memorandum”). 9 The Individual Defendants adopt it to the extent the Complaint fails to specify any allegations against them individually, and as a supplement to Section III A. 2. of the Joint Memorandum, titled “The Complaint Is Replete with Improper Group Pleading.” B. Additional Flaws and Supplemental Analysis The fatal flaws in Plaintiff’s Complaint are many and deep. Although the claims against the Physician-Defendants should be dismissed for lack of personal jurisdiction, and all of Plaintiff’s claims against the Individual Defendants should be dismissed for the reasons set forth in the briefs of the Pharmaceutical Defendants as adopted and incorporated herein by reference above, additional flaws remain and additional grounds for dismissal exist. The Individual Defendants accordingly supplement the analysis in the briefs of the Pharmaceutical Defendants. (1) Plaintiff’s General Business Law § 349 Claim Fails Plaintiff’s claim against the Individual Defendants under General Business Law § 349 (“Section 349”) fails for three main reasons. First, Section 349 does not apply to the alleged conduct of Individual Defendants because it consisted not of consumer-oriented behavior, but of the expression of medical opinions protected by the First Amendment. Second, Plaintiff fails to allege with any type of specificity that the Individual Defendants performed a deceptive act or 8 9 This memorandum of law is docket number 71. The Endo Memorandum is docket number 45. 26 34 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 practice. Third, Plaintiff fails to adequately allege that the actions of the Individual Defendants directly caused injury to Plaintiff or the residents of Suffolk County. The second and third reasons were adequately addressed by the Pharmaceutical Defendants’ joint memorandum of law.10 The first reason is addressed below. To state a claim under Section 349, a plaintiff must allege that the (1) challenged act or practice was consumer-oriented; (2) that it was materially misleading; and (3) that plaintiff was injured as result thereof. Stutman v. Chemical Bank, 95 N.Y.2d 24, 709 N.Y.S.2d 892, 731 N.E.2d 608, 2000 N.Y. LEXIS 910 (2000). Thus, as a threshold matter, the deceptive act at issue must be consumer-oriented. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 24-25 (1995). The Court of Appeals has defined “deceptive acts or practices” as a representation or omission “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Karlin v. IVF Am., 93 N.Y.2d 282, 294 (1999). Accordingly, in contrast to common-law fraud, Section 349 is a creature of statute based on broad consumer-protection concerns. Marine Midland Bank, 85 N.Y.2d at 24-25. Plaintiff cannot state a claim under Section 349 based upon the Individual Defendants’ medical opinions, which were not consumer-oriented. Through group pleading, Plaintiff appears to allege that the Individual Defendants’ publications, i.e. their medical opinions, caused deceptive materials to be placed into the marketplace where they were seen by various individuals, including physicians, prescribers, patients, and “payors” in Suffolk County. Dk. 2, ¶¶ 113, 114, 118, 148. Nevertheless, New York courts, in the interest of protecting free speech, have not permitted Section 349 to extend to the opinions of medical professionals. 10 As to the second reason, see Section III D. 1., Section III A. 1., Section III A. 2., and Section III A. 3., of the Joint Memorandum and Section II A. of the Endo Memorandum. As to the third reason, see Section III B. 2. and Section III C. 1. of the Joint Memorandum. 27 35 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 The case of ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 492 (2d Cir. 2013), is particularly instructive on medical opinions and “the fact-opinion paradigm of First Amendment jurisprudence.” There, the plaintiff brought numerous claims, including one under Section 349, against physicians who published their findings in a medical journal. Id. The plaintiff, a manufacturer, claimed that the article made statements about scientific findings that were allegedly intentionally deceptive and misleading, and therefore constituted false advertising. Id. The strongly worded opinion dismissed the Section 349 claim against the physicians who authored the article and held that “statements of scientific conclusions about unsettled matters of scientific debate cannot give rise to liability for damages” and “secondary distribution of excerpts of such an article cannot give rise to liability, so long as the excerpts do not mislead a reader about the conclusions.” Id. The court drew a critical distinction between different types of deception in noting that “it is relevant that plaintiff does not allege that the data presented in the article were fabricated or fraudulently created.” Id. at 498. Lastly, the court emphasized New York’s policy toward free speech by stating “the protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by the Federal Constitution.” Id. at 498; see also N.Y. Pub. Interest Research Grp., Inc. v. Ins. Info. Inst., 161 A.D.2d 204, 205, 554 N.Y.S.2d 590, 592 (1st Dep’t 1990) (observing that, as consumer protection laws, Sections 349 and 350 prohibit and have only been applied to deceptive practices arising out of commercial transactions, not to general expressions of opinion about public matters, and determining that “to construe sections 349 and 350 otherwise would be to render them contrary to the First Amendment,” which itself would be contrary to the axiomatic proposition “that, whenever possible, a statute will be given an interpretation which avoids constitutional infirmity.”). Additionally, as discussed in ONY, New York courts assess claims of defamation, as well as claims brought under consumer protection 28 36 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 laws, with an aim to protect free speech. See Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 240, 244-45, 567 N.E.2d 1270, 566 N.Y.S.2d 906 (1991)(dismissing a libel suit against the editor of a scientific journal because the allegedly libelous statements were protected opinion.). Here, like in ONY, the Individual Defendants merely expressed their scientific and medical opinions in articles and books, and on the Internet. Moreover, nowhere in the Complaint does Plaintiff allege that the Individual Defendants based their medical opinions on fraudulently created data. In keeping with the intent and interpretation of Section 349, subjecting the Individual Defendants to its reach would inhibit and infringe upon their freedom of speech, specifically upon the expression of their medical opinions. Plaintiff’s Section 349 claim against the Individual Defendants could and should be dismissed on this basis alone. Plaintiff’s claim under Section 349 also fails because the Individual Defendants’ medical opinions were not consumer-oriented. New York courts have interpreted an “extensive marketing scheme” as consumer-oriented behavior under Section 349. See Wilner v. Allstate Ins. Co., 2010 NY Slip Op 248, ¶ 5, 71 A.D.3d 155, 164 (2nd Dep’t 2010). Here, however, the role of the Individual Defendants must be dissected from those of the pharmaceutical manufacturers, although Plaintiff attempts to equate the two through improper group pleading. Even if focusing on the Individual Defendants by name, nowhere in the Complaint does Plaintiff specifically allege that Dr. Fine or Dr. Webster engaged in any type of consumer-oriented behavior that injured Plaintiff or residents of Suffolk County. This by itself also warrants dismissal. Consequently, in light of the foregoing and the relevant arguments in the Joint Memorandum and Endo Memorandum adopted and incorporated by reference herein, Plaintiff fails to satisfy any of the elements required for a Section 349 claim, namely, that the conduct of Individual Defendants was consumer-oriented, that it was materially misleading, and that 29 37 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Plaintiff was injured as result thereof. Plaintiff’s claim under Section 349 against the Individual Defendants should accordingly be dismissed. (2) Plaintiff’s General Business Law § 350 Claim Fails In addition to the three requirements of a Section 349 claim, a false advertising claim under Section 350 requires the extra element of “proof of actual reliance.” Merck Eprova AG v. BrookStone Pharms., LLC, 920 F. Supp. 2d 404, 425 (S.D.N.Y. 2013); Morrissey v. Nextel Partners, Inc., 2010 NY Slip Op 1565, *5, 72 A.D.3d 209, 216, 895 N.Y.S.2d 580, 587 (3rd Dep’t 2010). Because a claim under General Business Law § 350 (“Section 350”) includes the elements of a claim under Section 349, Plaintiff’s Section 350 claim also fails. Even if Plaintiff had properly alleged a Section 349 claim, which it does not, Plaintiff fails to adequately allege the additional element of reliance, as required by Section 350. Nowhere in the Complaint does Plaintiff allege that it or any resident of Suffolk County actually relied upon anything that the Individual Defendants did, said, or wrote.11 Indeed, nowhere in the Complaint does Plaintiff allege that the Individual Defendants produced, or were even involved with, advertisements of any kind. Accordingly, it would be impossible for Plaintiff to properly plead actual reliance upon an advertisement, which is fatally detrimental to its claim. See Pelman v. McDonald's Corp., 237 F. Supp. 2d 512, 2003 U.S. Dist. LEXIS 707 (S.D.N.Y. 2003)(granting a motion to dismiss because plaintiffs failed to cite any specific advertisements or public statements that could have been considered deceptive in support of their claim that the making and selling of the fast food chain’s product was deceptive and injured the health of minors.); McGill v. GMC, 231 A.D.2d 11 Thus, the arguments in Section III D. 1., Section III B., and Section III B. 1., and Section III B. 2. of the Joint Memorandum, which have been adopted and incorporated herein, apply. 30 38 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 449, 450, 647 N.Y.S.2d 209, 210 (1st Dep’t 1996)(granting motion to dismiss Section 350 claim because plaintiff failed to properly plead reliance or knowledge of allege false advertisement). Even if Plaintiff did or could point to a specific statement about opioids made by the Individual Defendants, it would not be subject to regulation by Section 350. The Individual Defendants’ medical opinions, expressed through journal articles, books, and the Internet, do not qualify as commercial speech subject to regulation by Section 350, and are thus entitled to the full protection of the First Amendment. See New York Public Interest Research Group, Inc. v Insurance Information Institute, 140 Misc. 2d 920, 531 N.Y.S.2d 1002, 1988 N.Y. Misc. LEXIS 499 (Sup. Ct. New York County 1988), aff’d, 161 A.D.2d 204 (1st Dep’t 1990)(organization was entitled to dismissal of action for an alleged violation of Sections 349 and 350, which prohibit deceptive practices and false advertising in the conduct of any business, since it would be constitutionally impermissible in light of the First Amendment to regulate, on the basis of its falsity, advertising whose primary purpose was to influence variety of public debates that involved legislative action regarding the economic benefit of the insurance industry); Lacoff v. Buena Vista Publ’g, Inc., 183 Misc. 2d 600, 705 N.Y.S.2d 183, 2000 N.Y. Misc. LEXIS 25 (Sup. Ct. New York County 2000)(claims under Sections 349 and 350 were dismissed because, under state constitution and cases interpreting federal constitution, challenged published statements contained in an investment book were not “core” commercial speech and were thus entitled to full First Amendment protection.). Because Plaintiff’s Section 349 claim fails, Plaintiff’s Section 350 claim must also fail. Even assuming arguendo that Plaintiff had properly stated a claim under Section 349, Plaintiff failed to plead the necessary element of reliance required under Section 350. Thus, Plaintiff’s claim under Section 350 against the Individual Defendants should be dismissed. 31 39 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 (3) Plaintiff Fails to State a Public Nuisance Claim A public nuisance is defined as “a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons.” W. Hempstead Water Dist. v. Buckeye Pipeline Co., L.P., 2010 NY Slip Op 33040(U), *9 (Sup. Ct. Nassau County 2010), citing Restatement (Second) of Torts § 821B(1). A defendant “is subject to liability for a nuisance caused by an activity, not only when [it] carries on the activity but also when [it] participates to a substantial extent in carrying it on.” Rest. 2d Torts § 834; accord Perm Central Transp. v. Singer Warehouse & Trucking Corp., 86 A.D.2d 826, 447 N.Y.S.2d 265 (1st Dep’t 1982). New York courts have analyzed public nuisance claims allegedly created by lawful products by determining whether the defendants (1) owed a duty to control the conduct of third parties to prevent them from harming others; (2) whether the defendants’ otherwise lawful commercial activity is too remote from the plaintiff’s alleged harm; and (3) whether the lawful activity may be considered a proximate cause of the alleged harm. People v. Sturm, Ruger & Co., 761 N.Y.S.2d 192, 201-202 (1st Dep’t. 2003). Here, Plaintiff’s public nuisance claim against the Individual Defendants fails for three principal reasons. First, Plaintiff fails to allege that the Individual Defendants created a public nuisance. In other words, Plaintiff fails to allege that the Individual Defendants substantially interfered with a public right in Suffolk County. Second, even if Plaintiff were able to allege the interference with a public right, Plaintiff’s claim would still fail because the Individual Defendants do not owe a duty to the Plaintiff or the residents of Suffolk County to prevent harm allegedly caused by lawful opioids. Third, Plaintiff fails to adequately claim that the alleged actions of the Individual Defendants proximately caused injury to Plaintiff or the residents of Suffolk County. The roles of the Individual Defendants were much too far removed to satisfy 32 40 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 the proximate cause requirement of a public nuisance claim. The first reason was adequately addressed by the Pharmaceutical Defendants’ Joint Memorandum and is therefore fully adopted and incorporated herein. The third reason is also addressed by the Pharmaceutical Defendants in their Joint Memorandum, and is fully adopted and incorporated herein, but is nonetheless supplemented below.12 Therefore, only the second and third reasons, but not the first, are addressed below. i. The Physician-Defendants Do Not Owe a Duty to Plaintiff Plaintiff fails to properly plead a public nuisance claim against the Individual Defendants because its Complaint lacks an allegation that the Individual Defendants exercised the requisite control over commerce in and prescription and use of opioids to create a duty to Plaintiff. In People v. Sturm, Ruger & Co., 761 N.Y.S.2d 91 (1st Dep’t. 2003), the First Department, in rejecting a public nuisance claim, emphasized the necessity of properly pleading the element of control. The Sturm court noted that the Court of Appeals has held that a product manufacturer does not owe a “duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise that control.” 761 N.Y.S.2d at 196 (citing Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001)). Imposing such a duty would “open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.” Id. at 196. Likewise, in Hamilton, a suit alleging negligence in the sale and distribution of handguns, the Court of Appeals held that handgun manufacturers had no duty to control the conduct of third-party distributors and retailers. 96 N.Y.2d at 230. As the court observed, 12 As to the first reason, see Section III D. 2a.., of the Joint Memorandum. Regarding the third reason, see Section III D. 2b. and Section III C. 1. of the Joint Memorandum. 33 41 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 “[t]his judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.” Id. at 233. The court refused to expand the manufacturers’ duty, holding that [t]o impose a general duty of care upon the makers of firearms under these circumstances because of their purported ability to control marketing and distribution of their products would conflict with the principle that any judicial recognition of a duty of care must be based upon an assessment of its efficacy in promoting a social benefit as against its costs and burdens. Here, imposing such a general duty of care would create not only an indeterminate class of plaintiffs but also an indeterminate class of defendants whose liability might have little relationship to the benefits of controlling illegal guns. Id. at 236. A similar conflict with longstanding and well-established New York law would arise by imposing such a duty here because the Individual Defendants lacked the requisite control of the product at any time. Although Plaintiff’s Complaint is rife with group pleading, Plaintiff cannot honestly claim that the Individual Defendants maintained a comparable level of control of prescription opioids as did the pharmaceutical companies named in this action. Indeed, the Physician-Defendants reside thousands of miles away from Suffolk County. They, along with Dr. Portenoy, are not part of research and development teams for opioids. Fine Aff. ¶¶ 7-9; Webster Aff. ¶¶ 6-8. They, along with Dr. Portenoy, play no part in marketing or advertising on behalf of pharmaceutical companies to promote the distribution of opioids. In fact, the Physician-Defendants do not even prescribe opioids to residents in Suffolk County. Fine Aff. ¶ 11; Webster Aff. ¶ 10. Thus, their role in the opioid supply chain is nowhere comparable to the relationship between a gun manufacturer and a thirdparty retailer. When viewed in that comparative light, the Individual Defendants’ relationship to the Plaintiff and its residents is far too attenuated to establish a duty. Plaintiff’s only potential factual support for its public nuisance claim against the Individual Defendants is 34 42 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 that they drafted medical literature which promoted the use of opioids and that that literature is somehow the direct cause of Plaintiff’s alleged injuries. Dk. 2, ¶¶ 114-119, 139-141. When compared to the roles of the aforementioned handgun manufacturers, who were held to owe no duty, the roles of the Individual Defendants are signficantly more removed. The relationship between the Individual Defendants and third-party prescribers and users in Suffolk County is much more tenuous than the relationship between handgun manufacturers and third-party distributors and retailers. The handgun manufacturers actually supplied distributors and retailers with their products. The Individual Defendants do not supply anyone in Suffolk County with the product of prescription opioids. Fine Aff. ¶ 11; Webster Aff. ¶ 10. They simply offer medical opinions on their use. Thus, if the handgun manufactuerers in Sturm and Hamilton owed no duty, a fortiori the Individual Defendants owe no duty here to Plaintiff and its residents. In fact, Plaintiff does not even specifically allege that the Individual Defendants owed a duty to protect the residents of Suffolk County. Indeed, they owe no such duty. Again, the Indidvidual Defendants neither treated patients in Suffolk County nor participated in any marketing or advertising of opioids directed toward Suffolk County. The case of Malone v. County of Suffolk, 128 A.D.3d 651 (2nd Dep’t 2015), is particularly instructive given the factual and legal similarities to the present case regarding the concept of duty in public nuisance claims. On June 19, 2011, David Laffer, a drug addict, shot and killed four people, including the plaintiffs’ mother (hereinafter the “decedent”), while committing a robbery at a pharmacy in Suffolk County in an attempt to obtain narcotics. Id. The plaintiffs asserted a public nuisance cause of action against the defendant physician, Stan Xuhui Li. Id. at 651-652. Plaintiffs alleged that Dr. Li operated a pain management clinic which functioned as a “pill mill,” and that he knowingly prescribed narcotics to drug addicts, including Laffer, and to 35 43 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 people who had previously overdosed on drugs. Id. Dr. Li moved pursuant to CPLR 3211(a)(7) to dismiss the public nuisance claim asserted against him for failure to state a cause of action, arguing that he did not owe a duty to the decedent or to the general public. Id. The Supreme Court denied Dr. Li's motion, concluding that Dr. Li owed a duty to the general public, including the decedent, to refrain from overprescribing addictive drugs in an “irresponsible and potentially criminal manner,” and that the complaint sufficiently alleged a breach of this duty with respect to the prescriptions Dr. Li wrote for Laffer. Id. On appeal, the Second Department ruled that the Supreme Court erred in denying Dr. Li’s motion to dismiss and held that Dr. Li did not owe a duty to the decedent or to the general public because no special circumstances existed. Id. at 653. The decedent was a stranger to Laffer and a member of the general public, not a member of “a determinate and identified class.” Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 614, 687 N.E.2d 1300, 665 N.Y.S.2d 17 (1997). Additionally, the Malone court held that Dr. Li did not have the authority or the ability to control Laffer and to protect against the risk of harm. Malone, 128 A.D.3d at 651. In essence, the plaintiffs argued that Dr. Li was in the best position to prevent the harm by not prescribing narcotics to Laffer. However, the Malone court held that “this contention represents a departure from the established precedent requiring the existence of ‘sufficient authority and ability to control the conduct of third persons’” to impose a duty. Id., quoting Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914, 915 (2nd Dep’t 2013). Here, the roles of the Physician-Defendants, compared to Dr. Li, are even further removed from Suffolk County and its residents. Unlike Dr. Li, the Physician-Defendants did not prescribe drugs to the residents of Suffolk County or practice medicine in Suffolk County. Based on their lack of connection to Suffolk County, the Physician-Defendants, including Dr. Portenoy, are far too removed to prevent harm there. Thus, the Individual Defendants owe no 36 44 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 duty to Plaintiff or its residents in general. Plaintiff’s claim of public nuisance against the Individual Defendants accordingly fails on this basis alone and should be dismissed. ii. Plaintiff Cannot Adequately Plead Proximate Cause Even if the Individual Defendants owed a legal duty to Plaintiff and its residents, which they do not, Plaintiff’s public nuisance claim still falls short. The harm Plaintiff alleges is far too removed from the Individual Defendants’ lawful activity to hold them accountable through a public nuisance claim. As aforementioned, the Individual Defendants adopt the argument set forth in the Pharmaceutical Defendants’ Joint Memorandum Section III. D. 2.b., but supplement this section with arguments particular to them. New York courts have held that liability can be found only when the alleged harm has a reasonable connection to the defendant’s alleged actions. Id. at 202. Courts in New York, especially with regard to the manufacture, distribution, and advertising of legal products, have proactively sought to limit the expansion of public nuisance claims as a way to stem the flood of limitless litigation. See Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 23334, 727 N.Y.S.2d 7, 13, 750 N.E.2d 1055, 1061 (2001)(connection between defendants, criminal wrongdoers and plaintiffs is remote, running through several links in a chain consisting of at least the manufacturer, the federally licensed distributor or wholesaler, and the first retailer, and most often including numerous subsequent legal purchasers or even a thief). In fact, the Sturm court placed a specific emphasis on stopping the progress of lawsuits that lack “any deference to proximate cause.” Id. at 203. It noted that allowing the continuance of lawsuits that lack any such deference would result in “an explosion of litigation [that] would inappropriately engulf the courts beyond their means in issues which the legislative and executive branches are vastly better designed, equipped and funded to address.” Id. 37 45 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 In the present case, Plaintiff’s conclusory allegation of proximate cause simply fails. The lawful conduct of all Defendants, including in particular the Individual Defendants, is simply too far removed from the alleged nuisance in Suffolk County to be held responsible for it. The Pharmaceutical Defendants’ argument concerning lack of proximate cause regarding their roles as manufacturers completely undermines Plaintiff’s argument against them. Doc. No. 117 pp. 3841. Citing the Sturm matter, they persuasively argue that their alleged conduct is far removed from the downstream, unlawful use of opioids that constitute the purported nuisance. Id. at p. 40. The conduct of the Individual Defendants is even further removed than that of the Pharmaceutical Defendants. The Individual Defendants did not manufacture opioids, did not advertise opioids, did not market opioids, and did not prescribe opioids to patients in Suffolk County. Unlike manufacturers, the Individual Defendants did not even place these lawful products into commerce. Instead, the Individual Defendants merely authored medical opinions regarding opioids, none of which were actively directed toward Suffolk County. Their connection to Suffolk County, if there is any at all, is far too tenuous to be considered a proximate cause of Plaintiff’s alleged injuries. Plaintiff’s public nuisance claim against the Pharmaceutical Defendants fails. A fortiori, it fails against Individual-Defendants. Plaintiff’s public nuisance claim should therefore be dismissed. (4) Plaintiff’s Claim Under New York Social Services Law § 145-B Fails Once again, another of Plaintiff’s claims fails on the most elementary level. Its claim under New York Social Services Law § 145-B against the Individual Defendants should be dismissed because they neither directly received nor even applied for public funds. Fine Aff. ¶10; Webster Aff. ¶ 9. Instead of including specific factual allegations against the Individual Defendants under §145-B, Plaintiff alleges that “barring exceptional circumstances,” all claims for reimbursement of opioids prescribed for chronic pain are medically improper and therefore 38 46 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 “false” for purposes of a Section 145-b analysis. Dk. 2, ¶¶ 7, 10, 71-77. However, Plaintiff fails to allege that the Individual Defendants obtained any funds that were falsely procured or to allege any means by which they did – necessary elements under the law. This insufficiency also applies to the essential element of presentment, which requires that a request or demand for repayment be “presented” to a state or local government, in this case, the Plaintiff. N.Y. Soc. Serv. L. §145b(1)(b); People v. Bank of N.Y. Mellon Corp., 2013 NY Slip Op 31813(U), at *53-54 (2013). There is no allegation that the Individual Defendants ever submitted a claim to Plaintiff for reimbursement, let alone one which is false or misleading. In the absence of allegations specifically identifying a particular claim submitted directly by the Individual Defendants for payment from State funds containing a specific false statement or representation with the knowledge that it was false, in addition to the arguments set out in § D.3 of the Joint Memorandum, Plaintiff’s § 145-b claim against the Individual Defendants must be dismissed. Moreover, the arguments in Section III D. 3. and Section III D. 3. a. of the Joint Memorandum, which have been adopted and incorporated herein, apply. In addition, Plaintiff’s § 145-B claim fails for the independent reason that the Complaint does not identify any specific misrepresentations made by the Individual Defendants. The arguments in Section III D. 3. b. of the Joint Memorandum, which have been adopted and incorporated herein, apply. Accordingly, Plaintiff’s § 145-B claim against the Individual Defendants should be dismissed. (5) Plaintiff Fails to State a Claim of Fraud Plaintiff’s claim for common-law fraud against the Individual Defendants fails for the reasons set forth in the Joint Memorandum. Specifically, the arguments in Section III A. 1, Section III A. 2., Section III A. 3.,h Section III A. 4., Section III B., Section III B. 1., Section III B. 2., Section III B. 3., Section III C. 1., and Section III C. 2. of the Joint Memorandum, which 39 47 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 have been adopted and incorporated herein, completely decimate Plaintiff’s claim of fraud. Plaintiff’s claim of fraud against the Individual Defendants should therefore be dismissed. Even if the glaring deficiencies addressed in the Joint Memorandum, such as improper group pleading and the lack of causation, were ignored, Plaintiff’s claim would still fail. Plaintiff identifies 7 alleged misrepresentations in its Complaint, namely that the “Defendants” purportedly: • “misrepresented the truth about how opioids lead to addiction”; • “misrepresented that opioids improve function”; • “misrepresented that addiction risk can be managed”; • “misrepresented that increased doses pose no significant additional risk” • “mislead doctors, patients, and payors through the use of misleading terms like ‘psuedoaddiction’”; • “falsely claimed that withdrawal is simply managed”; and • “falsely omitted or minimized the adverse effects of opioids and overstated the risks of alternative forms of pain treatment.”13 Dk. 2 ¶ 152. Setting aside all other fatal flaws, Plaintiff does not adequately allege how each of these representations constitutes a misrepresentation of material fact. To the extent they are even statements attributable to an individual, nowhere does Plaintiff allege in what way they are or even can be false. Simply put, not one of the aforesaid representations can sustain a claim for fraud.14 13 Plaintiff generally does not attribute these alleged misrepresentations to the Individual Defendants in particular, or to anyone in particular, but generically and improperly to the “Defendants” as a collective. To the extent Plaintiff does this, the alleged misrepresentations are entirely insufficient to sustain a claim for fraud, as explained in Section III A. 2. and Section III A. 3. of the Joint Memorandum. 14 The elements of fraud are a misrepresentation of material fact, that the defendant knew the falsity of, that the defendant intended to deceive, justifiable reliance by the plaintiff, and resulting injury. Barclay Arms, Inc. v. Barclay Arms Assocs., 74 N.Y.2d 644, 647 (1989). 40 48 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 The first representation is not a statement that can be attributed to anyone and thus cannot constitute a misrepresentation of material fact. In alleging that the defendants “misrepresented the truth about how opioids lead to addiction,” Plaintiff provides a characterization, not an allegation of something purportedly said or represented. Regardless, even if one of the Individual Defendants actually stated “the truth about how opioids lead to addiction” or “how opioids lead to addiction,” it would not be a falsifiable statement, because it is a vague and incomplete thought. This alone makes it insufficient. See, Fowler v American Lawyer Media, Inc., 306 AD2d 113, 761 N.Y.S.2d 176 (1st Dept 2003) (“Vague and conclusory allegations are not sufficient to sustain a cause of action.”). Notably, Plaintiff does not allege that any of the Individual Defendants stated that “opioids do not lead to addiction,” and then thereby identify it as a misrepresentation by alleging that the truth is that opioids do indeed lead to addiction. Without an identifiable misrepresentation, a claim for fraud fails. Stortini v. Pollis, 138 A.D.3d 977, 978 (2nd Dep’t 2016)(dismissing claim for failure to set forth any material misrepresentation); S’holder Representative Servs. LLC v. Sandoz Inc., 2015 N.Y. Misc. LEXIS 740, **16, 19; 9 N.Y.S.3d 595 (N.Y. Sup. Ct. 2015) (motion to dismiss granted for failure to plead a misrepresentation). Additionally, given that it is an unfalsifiable statement, Plaintiff does not and cannot adequately plead that the Individual Defendants had knowledge of its falsity. High Tides, LLC v. DeMichele, A.D.3d 954, 958-59 (2d Dep’t 2011)(motion to dismiss fraud claim upheld where knowledge of fraud was not properly pled); Lacoff v. Buena Vista Publ’g, Inc., 183 Misc. 2d 600, 611, 705 N.Y.S.2d 183, 192 (N.Y. Sup. Ct. 2000) (motion to dismiss fraud claim granted where plaintiffs provided no factual basis for conclusory allegations of 41 49 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 knowledge). The first representation therefore cannot sustain a claim for fraud as a matter of law. Neither can the second, which is the alleged representation “that opioids improve function.” Plaintiff does not and cannot allege that it is a fact that opioids do not and can never improve function. Instead, Plaintiff points to the alleged absence of evidence of improved function. Dk. 2, ¶¶ 168, 169. Even assuming an absence of evidence, it does not follow that the representation “that opioids improve function” is false. The alleged lack of support for a statement does not necessarily mean it is untruthful and certainly does not necessarily make it untrue. Thus, the second representation does not qualify as a misrepresentation and accordingly fails. Stortini, 138 A.D.3d at 978; Sandoz Inc., 2015 N.Y. Misc. LEXIS at **16, 19. Moreover, it cannot qualify as a representation of material fact. Whether a medication “improves function,” especially given the ambiguity of the term, is not an issue of material fact. Instead, it involves the nuances of medical and scientific opinion, and the expression of an opinion cannot sustain a claim for fraud. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 179 (2011) (affirming dismissal of claim of fraud based on opinion); High Tides, LLC v. DeMichele, 88 A.D.3d 954, 958 (2d Dep’t 2011) (holding that “mere opinion and puffery” “provide an insufficient basis upon which to predicate a claim of fraud”); DH Cattle Holdings Co. v. Smith, 195 A.D.2d 202, 206 (1st Dep’t 1994) (observing that “mere opinion and puffery” are generally “not actionable statements of fact”); SNCB Corporate Fin. Ltd. v. Schuster, 877 F. Supp. 820, 826 (S.D.N.Y. 1994) (“a statement of opinion is not fraudulent under New York law unless it is not honestly held at the time it was made.”). Moreover, on the issue of opinion regarding matters of science, the Second Circuit has observed that “[i]n a sufficiently novel area of research, propositions of empirical ‘fact’ advanced in the literature may be highly controversial and subject to rigorous debate by qualified 42 50 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 experts” and that “[N]eedless to say, courts are ill-equipped to undertake to referee such controversies” but should instead allow “the trial of ideas [to] play[] out in the pages of peerreviewed journals, and the scientific public sits as the jury.” ONY, 720 F.3d at 497. The court further recognized that “‘matters of argument’ appearing in print . . . are best evaluated by an informed reader,” which is also true of “‘statements made to summarize an argument or opinion within a book,’ . . . even when such statements are made in advertisements.” Id. at 497. Finally, on that basis, the Second Circuit and other courts have “declined to allow suits based on claims of false conclusions in matters of scientific controversy to proceed.” Id., citing Underwager v. Salter, 22 F.3d 730, 736 (7th Cir. 1994) (“Scientific controversies must be settled by methods of science rather than by methods of litigation . . . .”); Arthur v. Offit, No. 01:09-cv-1398, 2010 WL 883745, at *6 (E.D. Va. Mar. 10, 2010) (“Plaintiff’s claim . . . threatens to ensnare the Court in [a] thorny and extremely contentious debate over . . . which side has ‘truth’ on their side.”)). For the same reasons, the third representation cannot support Plaintiff’s claim. Plaintiff purports to identify the misrepresentation of the Defendants that “addiction risk can be managed.” Nonetheless, Plaintiff does not and cannot allege that it is a fact that addiction risk cannot be managed. Plaintiff again points to the alleged absence of “reliable scientific evidence.” Dk. 2, A ¶ 179. Thus, the analysis of the second representation is as equally and forcefully applicable to the third. The alleged absence of evidence does not make the representation false. The third representation therefore does not qualify as a misrepresentation, and cannot qualify as a representation of material fact. It thus fails. Stortini, 138 A.D.3d at 978; Sandoz Inc., 2015 N.Y. Misc. LEXIS at **16, 19. It is again a matter of medical and scientific opinion whether risk of addiction can be managed, and an opinion cannot sustain a claim of fraud. Wildenstein, 16 N.Y.3d at 179; High Tides, LLC, 88 A.D.3d at 958; DH Cattle Holdings Co., 195 A.D.2d at 206; Schuster, 877 F. Supp. at 826; ONY, 720 F.3d at 497. 43 51 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 Plaintiff actually does loosely connect Dr. Webster to the third representation. Attempting to support its claim that the Defendants misrepresented that addiction risk can be managed, Plaintiff alleges that a webinar “taught by Defendant Dr. Webster” “taught prescribers that screening tools, mine tests, and patient agreements have the effect of preventing ‘overuse of prescriptions’ and ‘overdose deaths.’” Dk. 2, ¶ 185.15 This allegation is fundamentally flawed in several respects. First, it is not a representation attributed to Dr. Webster but rather a summary of what he reportedly taught. As such, it does not constitute a representation and thus cannot be a misrepresentation that sustains a claim for fraud. Stortini, 138 A.D.3d at 978; Sandoz Inc., 2015 N.Y. Misc. LEXIS at **16, 19. Second, even ignoring that defect, it does not support an allegation that the Individual Defendants in general or Dr. Webster in particular misrepresented that addiction risk can be managed. What Dr. Webster reportedly taught about preventing overuse of prescriptions and overdose deaths does not contradict the representation that addiction risk can be managed. In fact, it is consistent with it. Thus, for this additional reason, Plaintiff has not identified a misrepresentation about the management of addiction risk. Third, to reiterate, whether the risk of addiction can be managed is a matter of medical opinion, not a fact. As such, it cannot sustain a claim for fraud.16 Wildenstein, 16 N.Y.3d at 179; High Tides, LLC, 88 A.D.3d at 958; DH Cattle Holdings Co., 195 A.D.2d at 206; Schuster, 877 F. Supp. at 826; ONY, 720 F.3d at 497. Thus, even when Plaintiff actually attributes a statement to or connects a purported representation with one of the Individual Defendants, the allegation still utterly fails. 15 Plaintiff’s allegation is confusing. In the first sentence of paragraph 185, Plaintiff claims that Dr. Webster taught a webinar. Yet in the second sentence of that paragraph Plaintiff claims that the “publication taught prescribers….” A webinar is not a publication, but rather a seminar conducted on the Internet. In any event, the Individual Defendants construe the allegation liberally so that it makes sense. 16 Plaintiff also alleges that Dr. Webster wrote a continuing medical education course titled Optimizing Opioid Treatment for Breakthrough Pain. Dk. 2 at 198. Writing an education course is obviously also not a representation attributable to Dr. Webster. 44 52 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 The fourth alleged misrepresentation suffers the same fate. Plaintiff claims that the Defendants “misrepresented that increased doses pose no significant additional risk.” Again, nowhere in its Complaint does Plaintiff allege, nor can it truthfully allege, that it is a fact that increased doses pose “significant” additional risk. Instead, once again Plaintiff alleges the absence of “scientific evidence.” Dk. 2, ¶ 196. Plaintiff also claims that the Defendants “omitted warnings of increased adverse effects that occur at higher doses.” Id. at 195. Nevertheless, omitting a warning, even assuming a warning was omitted, does not support Plaintiff’s allegation that the representation was false. Issuing a warning has no bearing on whether or not it is true that increased doses pose “significant” additional risk. Indeed, if a warning that “increased adverse effects occur at higher doses” had been issued, it would not necessarily mean that increased doses pose “significant” additional risk. Thus, Plaintiff fails to adequately allege how or why this is a misrepresentation. Its allegation consequently cannot support a claim for fraud. Stortini, 138 A.D.3d at 978; Sandoz Inc., 2015 N.Y. Misc. LEXIS at **16, 19. In any event, it is not a matter of fact, but rather of medical opinion as to what is and is not a “significant” additional risk with increased dosage. Indeed, there may be significant additional risk for a given patient if the dosage is not increased. This is a matter of medical opinion, and thus not a statement that can support a claim of fraud. Wildenstein, 16 N.Y.3d at 179; High Tides, LLC, 88 A.D.3d at 958; DH Cattle Holdings Co., 195 A.D.2d at 206; Schuster, 877 F. Supp. at 826; ONY, 720 F.3d at 497. As a fifth representation, Plaintiff claims that the Defendants made “use of misleading terms like ‘psuedoaddiction.’” This allegation flatly fails to support Plaintiff’s claim. The use of a single word, without any context, simply cannot constitute a misrepresentation. The use of a particular word can make a statement false, but an isolated word cannot be false. Attempting to support its claim, Plaintiff alleges that the “Defendants misrepresented that the concept of 45 53 of 58 INDEX NO. 613760/2016 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 ‘pseudoaddiction’ is substantiated by scientific evidence.” Dk. 2, ¶ 187. This is, however, a characterization, not an allegation of something specific that was purportedly said or represented. It therefore cannot sustain a claim for fraud. Stortini, 138 A.D.3d at 978; Sandoz Inc., 2015 N.Y. Misc. LEXIS at **16, 19. Additionally, the conclusory terms “misleading” and “misrepresented” provide no support, and must be stripped from a representation for purposes of analysis. Stein v. Doukas, 98 AD3d 1024, 1025-26 (2d Dept 2012) (“causes of action alleging fraud contain[ing] only bare and conclusory allegations, without any supporting detail, [] fail to satisfy the requirements of CPLR 3016(b)”); Anos Diner, Inc. v. Pitios Gourmet, Ltd., 100 AD2d 948, 949 (2d Dept 1984) (a plaintiff cannot avoid dismissal by “merely recit[ing] in conclusory language the elements of” a claim); Simon v. Kyrejko, 2015 NY Slip Op 31075(U), ¶ 7 (N.Y. Sup. Ct. 2015) (dismissing a claim of fraud based only on conclusory allegations).17 The fifth alleged misrepresentation therefore does not support Plaintiff’s claim of fraud. The sixth alleged misrepresentation fares no better. Plaintiff alleges that the Defendants “falsely claimed that withdrawal is simply managed.” Yet Plaintiff fails to allege why this representation is false. Plaintiff does not allege that it is a fact that withdrawal is not or cannot be managed. Instead, Plaintiff alleges that “Defendants fail to disclose the extremely difficult and painful effects that patients can experience when they are removed from opioids – an adverse effect that also makes it less likely that patients will be able to stop using the drugs.” Dk. 2, ¶ 191. This simply does not suffice. Merely because withdrawal is difficult and painful does not mean it cannot be managed. Undergoing surgery is difficult and painful, but it can be managed. Plaintiff also alleges that “Defendants made misrepresentations to persuade doctors and patients that withdrawal from their opioids was not a problem and they should not be hesitant about 17 Plaintiff offers additional examples of use of the term ‘pseudoaddiction’ to support its claim, but those alleged uses are by Purdue, and are thus irrelevant to the Individual Defendants. Dk. 2, ¶¶ 189, 190. 46 54 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 prescribing or using opioids” and that “[t]hese claims were not supported by scientific evidence.” Id. at ¶ 192. This again simply does not suffice. Merely because withdrawal can be a problem does not necessarily mean it cannot be managed. Additionally, as explained above, the alleged absence of scientific evidence generally does not make a representation untrue, and certainly does not make this representation false. It thus does not support Plaintiff’s claim. Stortini, 138 A.D.3d at 978; Sandoz Inc., 2015 N.Y. Misc. LEXIS at **16, 19. Moreover, whether withdrawal can be managed is a matter of medical opinion, not a fact that can support Plaintiff’s claim. Wildenstein, 16 N.Y.3d at 179; High Tides, LLC, 88 A.D.3d at 958; DH Cattle Holdings Co., 195 A.D.2d at 206; Schuster, 877 F. Supp. at 826; ONY, 720 F.3d at 497. The sixth alleged misrepresentation therefore cannot sustain a claim for fraud.18 Finally, Plaintiff alleges that the Defendants “falsely omitted or minimized the adverse effects of opioids and overstated the risks of alternative forms of pain treatment.” This allegation has two parts: the omission or minimization of the adverse effects of opioids and the overstatement of risks of alternative forms of pain treatment. Neither part, however, is a statement or representation attributable to anyone. Rather, they are characterizations of something allegedly represented. As such, they cannot qualify as representations for purposes of stating a claim for fraud. Stortini, 138 A.D.3d at 978; Sandoz Inc., 2015 N.Y. Misc. LEXIS at **16, 19. Additionally, Plaintiff fails to allege why these purported representations are false or even how they could be false. Indeed, the characterizations are too vague to sustain a claim for fraud. Moreover, Plaintiff alleges in paragraph 203 of the Complaint that there was no scientific evidence to support these purported representations, but, again, the absence of evidence for a statement does not necessarily make it false. Furthermore, the adverse effects of opioids and the 18 Plaintiff offers additional examples of statements about the management of withdrawal, but they were allegedly made by Endo and Purdue, and are thus irrelevant to the Individual Defendants. Dk. 2, ¶¶ 193, 194. 47 55 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 risks of alternative forms of pain treatment involve medical opinion, not fact. For all the foregoing reasons, the seventh alleged misrepresentation cannot sustain a claim for fraud. Accordingly, Plaintiff’s claim for fraud against the Individual Defendants should be dismissed. (6) Plaintiff Fails to State an Unjust Enrichment Claim Plaintiff’s claim for unjust enrichment against the Individual Defendants fails for all of the reasons set forth in Section III D. 4. of the Joint Memorandum, which have been adopted and incorporated herein. There are nonetheless additional deficiencies. Noticeably absent from the 251 allegations in the Complaint is an allegation describing how the Individual Defendants were enriched at the expense of the Plaintiff.19 Id., generally. Plaintiff does not allege that it paid the Individual Defendants for a prescription. Id. Plaintiff does not allege that the Individual Defendants received any type of payment from it or obtained anything at all from it. Id. Plaintiff does not even allege that the Suffolk County or any of its residents purchased an opioid. Id. The Complaint does not even hint as to where an opioid was purchased, from whom it was purchased, or when such a purchase ever occurred. Id. The closest the Complaint comes to offering an allegation about an opioid purchase is when Plaintiff alleges “[i]n Suffolk County in 2012, there 8,271 emergency room visits due to opiate use.” Dk. 2, ¶ 24. Therefore, Plaintiff’s claim regarding the Individual Defendants fails on the most basic level, namely the absence of an allegation that the Individual Defendants were enriched. Old Republic Natl. Tit. Ins. Co. v. Cardinal Abstract Corp., 14 A.D.3d 678 (2d Dep't 2005). This, alone, is reason for dismissal of Plaintiff’s unjust enrichment claim. See Baron v. Pfizer, Inc., 2006 NY Slip Op 51115(U), ¶ 5, 19 The elements of unjust enrichment are that (1) the defendant was enriched, (2) at the plaintiff’s expense and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. AHA Sales, Inc. v Creative Bath Prods., Inc., 58 A.D.3d 6, 19, (2nd Dep’t 2008). 48 56 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 INDEX NO. 613760/2016 RECEIVED NYSCEF: 02/06/2017 820 N.Y.S.2d 841, 841 (1st Dep’t 2006)(“the cause of action for unjust enrichment must fail because no allegations exist in the complaint that defendant obtained money from plaintiff based on defendant's alleged deceit”). Additionally, when viewed in totality, the bare legal conclusion that the Defendants benefited and profited from opioid purchases is insufficient to adequately allege that the asserted enrichment was unjust. See Goel v. Ramachandran, 2013 NY Slip Op 7708, ¶ 6, 111 A.D.3d 783, 791 (2nd Dep’t 2014). Assuming that Plaintiff adequately pled that the Individual Defendants were enriched, which it did not, Plaintiff never alleges how the Individual Defendants were enriched at the expense of the Suffolk County. Dk. 2, generally. Plaintiff never specifically alleges that any of the Individual Defendants received a benefit, monetary or otherwise, from it. Noise Mktg. LLC v. Great Works Am., Inc., 2009 NY Slip Op 30965(U), ¶¶ 17-18 (Sup. Ct. New York County 2009)(motion to dismiss unjust enrichment claim granted where plaintiff failed to allowed it was bestowed a benefit). Therefore, Plaintiff’s unjust enrichment claim fails for failure to plead the necessary elements against the Individual Defendants. CONCLUSION In light of the foregoing, the Court should issue an order, pursuant to CPLR 3211(a)(3), CPLR 3211(a)(5), CPLR 3211(a)(7), and CPLR 3211(a)(8), dismissing the claims against the Physician-Defendants to the extent Plaintiff lacks standing, because the Court lacks personal jurisdiction over them, and because Plaintiff has failed to state a claim against them, and providing such other and further relief as it deems just and proper. Dated: New York, New York February 6, 2017 49 57 of 58 FILED: SUFFOLK COUNTY CLERK 02/06/2017 11:53 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/06/2017 Respectfully submitted, GORDON & REES, LLP By: /s/ Ryan Sestack Mercedes Colwin Ryan Sestack Brian P. FitzGerald 1127300/31483353v.1 INDEX NO. 613760/2016 50 58 of 58