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Midway Labs USA, LLC v. South Serv. Trading, S.A.

United States District Court for the Southern District of Florida, Miami Division

May 13, 2020, Decided; May 13, 2020, Entered on Docket

CASE NO. 19-24857-CIV-GOODMAN

Opinion

AMENDED1 ORDER GRANTING COUNTERCLAIM DEFENDANT MIDWAY LABS USA, LLC AND THIRD-PARTY DEFENDANTS MIDWAY LABS BIO, LLC [*2]  AND WILTON B. COLLE'S MOTION TO DISMISS COUNTS III AND IV OF EXICON'S COUNTERCLAIM WITHOUT PREJUDICE

Counterclaim Defendant Midway Labs USA, LLC ("Midway") and Third-Party Defendants Midway Labs Bio, LLC ("Midway Bio") and Wilton B. Colle ("Colle") (collectively, the "Midway Parties") move to dismiss Counts III and IV of the Counterclaim filed by Defendants and Counterclaim Plaintiffs/Third-Party Plaintiffs South Service Trading S.A. and Codime Comercio e Distribucao de Mercadorias Ltda. (collectively, "Exicon"). [ECF Nos. 18; 22].

In its Counterclaim, Exicon, an importer, distributor and reseller of consumer products in Brazil, lays out a detailed narrative alleging that the Midway Parties, producers and sellers of nutritional supplements, engaged in deceptive conduct and breached the Importation and Distribution Agreement (the "Distribution Agreement") between Exicon and Midway Labs USA, LLC. [ECF No. 18]. Specifically, Count III of the Counterclaim alleges that the Midway Parties violated the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201 et seq. ("FDUTPA") [id. at pp. 33-35], and Count IV alleges that Midway Bio and Colle, the controlling member and manager of both Midway and Midway Bio, tortiously [*3]  interfered with the Distribution Agreement [id. at pp. 35-37]. The Midway Parties filed a motion to dismiss with prejudice Count III in its entirety and Count IV as it relates to Colle. [ECF No. 22].

For the reasons outlined below, the Court grants the Midway Parties' motion to dismiss, albeit without prejudice, and gives Exicon the option to file its amended Counterclaim within 14 days of this Order.

I. Factual Background

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2020 U.S. Dist. LEXIS 85321 *

MIDWAY LABS USA, LLC, Plaintiff, v. SOUTH SERVICE TRADING, S.A., et al., Defendants.

Subsequent History: As Amended May 14, 2020

CORE TERMS

lost profits, consumer, allegations, Parties, consequential damages, products, actual damage, damages, deceptive, customers, motion to dismiss, sales, business relationship, unfair trade practice, distributor, recoverable, termination, misconduct, courts, induce, fails, breached, Counts, third party, counter-defendants, Third-Party, manufacture, interfered, tortiously, forecasts