The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Presently before the Court are Defendants' motion for summary judgment [Doc. No. 118], Plaintiff's opposition to the motion for summary judgment [Doc. No. 123], and Defendants' reply [Doc. No. 124.] For the following reasons, this Court GRANTS Defendants' motion.
Plaintiff Photomedex markets an excimer laser to medical professionals, primarily dermatologists, for the treatment of psoriasis and vitiligo. Defendant Dean Irwin formerly worked for Photomedex as its Vice President of Research and Development. [See Irwin Decla. ¶ 9.] Mr. Irwin resigned from that position in 2002 and incorporated RA Medical, Inc. in early 2003. [Id.] On March 13, 2003, RA Medical entered into a licensing agreement with another company, Surgilight, for the rights to market, sell, and promote Surgilight's laser that was already cleared by the Food & Drug Administration ("FDA") to treat psoriasis and vitiligo. [Def.'s Motion, Exhibit 35.]
Soon after the licensing agreement, Mr. Irwin and members of RA Medical appeared at a trade show held by the American Academy of Dermatology ("AAD Show") and offered written materials to attendees advertising a competing excimer laser known as the Pharos Excimer Laser ("Pharos"). [See Leonard Decla., Exhibit A.] Defendant Irwin handed out a brochure that stated the Pharos was "FDA Approved for Psoriasis and Vitiligo" and that he was an inventor. [Id.]
Plaintiff alleges that the Pharos laser Defendants were marketing was vastly different than the Surgilight laser that was FDA approved. [Pl.'s Opp at 12-14.] Therefore, Plaintiff argues Defendants were essentially marketing a laser as FDA approved when it was not. [Id.] As a result, Plaintiff contends that Defendants' representations about the Pharos and other statements disseminated through brochures at the AAD Show and other trade shows were false and misleading. [See Compl. ¶ 17.] Plaintiff further states that these misrepresentations helped Defendants capture sales that Plaintiff would have received. Id. Consequently, Plaintiff is seeking damages for lost profits and unjust enrichment and also an injunction enjoining Defendants from disseminating such misleading statements. [Id.] Specifically, Plaintiff is suing for alleged violations of the Lanham Act, California Business and Profession Code ("B&P Code") Section 17500, and B&P Code Section 17200. [See Compl. ¶¶ 7-27.]
In response, Defendants argue: (1) they marketed a laser that was FDA approved and simply made design changes to it; (2) the FDA related claims should remain in the exclusive jurisdiction of the FDA; (3) the projected release date was an estimate and is therefore non-actionable; and (4) Mr. Irwin properly represented himself as an "inventor," and, in the alternative, the issue is a matter of opinion and is non-actionable.
Under Rule 56(c), summary judgment is proper when the pleadings and discovery, read in the light most favorable to the nonmoving party, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Armstrong v. Burlington N. R.R. Co., 139 F.3d 1277, 1278 (9th Cir. 1998) (quoting 20th Century Ins. Co. v. Liberty Mut. Ins. Co., 965 F.2d 747, 750 (9th Cir. 1992)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" when "the evidence presented is such that a jury applying [the appropriate] evidentiary standard could reasonably find for either the plaintiff or the defendant." Anderson, 477 U.S. at 255.
Even where some facts are disputed, summary judgment is still appropriate "[i]f the evidence is merely colorable, or is not significantly probative." Anderson, 477 U.S. at 249-50. No genuine issue for trial exists if "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Plaintiff Lacks Standing Because the FDA Has Exclusive Jurisdiction Over Determining Whether Defendants Improperly ...