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Allergan Usa, Inc. v. Lee Tempel

May 25, 2011

ALLERGAN USA, INC.
v.
LEE TEMPEL, M.D.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Title:

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER DENYING MOTION TO DISMISS [3]

Before the Court is Defendant Lee Tempel ("Tempel")'s Motion to Dismiss (the "Motion"). The Court finds the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, the Court DENIES

I. Background

Plaintiff Allergan USA, Inc. ("Allergan"), a Delaware corporation with its principal place of business in Orange County, allegedly sold certain medical products to Tempel between 2007 and 2011. Compl. ¶¶ 1-7. Tempel practices medicine in, and is a resident of, St. Louis, Missouri. Id. ¶ 2. His office ordered certain medical products from Allergan by calling a toll-free number that connected to the company's office in Irvine, California. See Decl. of Liliana Fausto in support of Pl.'s Opp'n to Mtn., ¶ 9. Allergan alleges that Tempel accepted delivery of those products at agreed upon prices and terms, but thereafter failed to timely respond to Allergan's invoices and demands for payment. See id.

¶ 8-9. Those invoices were mailed to Tempel's business address in St. Louis and directed him to send payments to Allergan's collection center in Chicago, Illinois. See, e.g., September 14, 2009 Invoice, Ex. 1 to Decl. of Liliana Fausto in support of Pl.'s Opp'n to Mtn., ¶ 6. The "terms and conditions" that appeared on the back of the pre-printed invoices provided in relevant part that:

Any dispute, controversy or claim arising out of or relating to this invoice shall be settled by arbitration in accordance with the rules then obtaining in the American Arbitration Association. Such arbitration shall be held in Orange County, California, and judgment upon the award rendered may be entered in any court having jurisdiction, and the parties consent to the jurisdiction of the California courts for this purpose.

Ex. 2 to Decl. of Liliana Fausto in support of Pl.'s Opp'n to Mtn., ¶ 7.

On March 12, 2010, and after approximately four months of missed payments by Tempel, the parties entered into a "letter agreement" that provided for the payment of $265,154.06 by Tempel to Allergan in monthly installments. Id. ¶ 13; see also Ex. 1 to Compl. Tempel executed the letter agreement by faxing a signed copy of the document to Allergan's office in Orange County. Decl. of Liliana Fausto in support of Pl.'s Opp'n to Mtn., ¶ 10. Allergan alleges that Tempel has been in breach of this letter agreement since June 2010. See Compl. ¶ 13.

On January 18, 2011, Allergan sued Tempel in state court and claimed that Tempel's failure to remit payment in response to Allergan's invoices as well as his failure to honor the terms of the parties' subsequent letter agreement caused him to breach his contracts with Allergan. See id. Tempel timely removed the lawsuit to this Court on diversity grounds and now moves ...


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