09-2858-cv
Erchonia Corp. v. Bissoon

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 3rd day of February, two thousand twelve,

Present:       RALPH K. WINTER,
               ROSEMARY S. POOLER,
               PETER W. HALL,
                          Circuit Judges.

_____________________________________________________

ERCHONIA CORPORATION f/k/a THERAPY
PRODUCTS, INC.,

                                                Plaintiff-Appellant,

                            -v-                                             09-2858-cv

LIONEL BISSOON, M.D. d/b/a MESOTHERAPIE &
ESTETIK, MERIDIAN AMERICA MEDICALS, INC.,
MERIDIAN MEDICAL INC., MERIDIAN CO., LTD.,

                                                Defendants-Appellees.


Appearing for Appellant:          Rory J. Radding, Edwards Wildman Palmer LLP, New York, N.Y.

Appearing for Appellees:          Anthony Fletcher, Kristen McCallion, Fish & Richardson P.C.,
                                  New York, N.Y.

        Appeal from the United States District Court for the Southern District of New York
(Cote, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Erchonia Corp. f/k/a/ Therapy Prods., Inc. (“Erchonia”) originally appealed a
grant of summary judgment in favor of appellees Lionel Bissoon, M.D., d/b/a Mesotherapie &
Estetik, Meridian America Medicals, Inc., Meridian Medical Inc., Meridian Co., Ltd.
(“Meridian”) on appellant’s claims of trademark infringement and false advertising. We affirmed
the grant of summary judgment on the trademark infringement claim, but affirmed only in part
on the false advertising claim. On that claim, we remanded “in part to the district court, pursuant
to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994), for
clarification on the basis of the district court’s decision to dismiss the false advertising claim
regarding (a) how the Meridian lipolaser works, (b) how effective Meridian’s laser is, (c)
whether Meridian’s laser has been approved by the FDA, and (d) who has endorsed Meridian’s
laser.” Erchonia Corp. f/k/a/ Therapy Prods., Inc. v. M.D. Lionel Bissoon d/b/a Mesotherapie &
Estetik, Meridian America Medicals, Inc., Meridian Medical Inc., Meridian Co., Ltd., 410 Fed.
Appx. 416, *419-20 (2d Cir. 2011). We indicated “it [was] unclear, inter alia, when discovery
actually ended,” since certain contention interrogatories were not served until five weeks after
fact discovery purportedly ended. Id. at 419. The district court has now explained the basis for its
determination and the appeal has been reinstated. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        We review dismissals for failure to comply with Federal Rule of Civil Procedure 8 for
abuse of discretion. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995). We find there was no
abuse of discretion in the district court’s refusal to consider the alternate bases for appellant’s
claims. Though we are not compelled to do so, we have conducted a de novo review of the
record, and we find that notice was not given to Meridian until the October 3, 2008, deposition
of Steve Shanks. That date was only a week before fact discovery was scheduled to end on
October 10, 2008. Though certain contention interrogatories were not served until well past that
date, we find compelling the district court’s explanation that, due to the special function of
contention interrogatories in the Southern District of New York, the receipt of such
interrogatories did not constitute an extension of fact discovery. Given that, and given the
complete lack of notice to Meridian until October 3, 2008, of the alternate bases for relief, we
conclude that the district court’s dismissal of those bases was not an abuse of discretion.

       We have examined appellant’s remaining arguments and find them to be without merit.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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