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Kantsevoy v. Lumenr LLC

United States District Court, D. Maryland

March 13, 2018

SERGEY KANTSEVOY, Plaintiff/Counter-Defendant,
v.
LUMENR LLC, Defendant/Counter-Plaintiff.

          MEMORANDUM OPINION

          Ellen Lipton Hollander, United States District Judge.

         Sergey Kantsevoy, M.D., a gastroenterologist, has sued LumenR LLC (“LumenR”), a medical device company, for breach of contract and related claims stemming from Kantsevoy's work in product development for LumenR. ECF 1 (Complaint). LumenR has asserted counterclaims for breach of contract, tortious interference with business relations, and related claims. ECF 12 (Answer and Counterclaims).[1]

         Since suit was filed in February 2017, the parties have engaged in the proverbial scorched-earth style of litigation, requiring resolution of numerous discovery disputes and the filing of thousands of pages of vitriolic submissions. Ten motions and cross-motions are pending. This Memorandum Opinion addresses three of them. The first two are cross-motions for judgment on the pleadings under Fed.R.Civ.P. 12(c). ECF 25; ECF 27. LumenR filed its motion first, seeking to dismiss five of Kantsevoy's six claims. ECF 25. The motion is supported by a memorandum of law (ECF 25-1) (collectively, the “LumenR Motion”), and one exhibit. Kantsevoy opposes the LumenR Motion. ECF 26 (“Kantsevoy Opposition”). LumenR replied (“LumenR Reply”).

         Thereafter, Kantsevoy filed his motion for judgment on the pleadings, seeking to dismiss LumenR's counterclaim for deceit; strike LumenR's affirmative defenses of deceit and promissory estoppel; and strike from LumenR's pleadings “all allegations regarding Dr. Kantsevoy's financial disclosures to third parties.” ECF 27. The motion is supported by a memorandum of law (ECF 27-1) (collectively, the “Kantsevoy Motion”) and two exhibits. LumenR opposes the Kantsevoy Motion. ECF 29 (“LumenR Opposition”). Kantsevoy replied. ECF 30 (“Kantsevoy Reply”).

         The third motion addressed in this Memorandum Opinion is LumenR's Motion for Leave to Amend Its Answer, Affirmative Defenses and Counterclaims. ECF 120 (“Motion to Amend”). The Motion to Amend seeks to add a fifth counterclaim, styled “Breach of Contract -Third Party Beneficiary.” ECF 120-2 (proposed Amended Answer and Counterclaims) at 20. Kantsevoy opposes the Motion to Amend. ECF 144. LumenR replied. ECF 158.

         No hearing is necessary to resolve these three motions. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion to Amend. And, I shall grant the LumenR Motion and the Kantsevoy Motion in part and deny each in part.

         I. Factual Background

         Given the procedural posture of this case, I must assume the truth of all factual allegations in the Complaint. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Because both parties have filed motions for judgment on the pleadings under Rule 12(c), I shall include the factual allegations in Kantsevoy's Complaint as well as LumenR's Answer and Counterclaims, noting where they conflict. Additionally, where relevant facts are contained in exhibits incorporated into the pleadings (discussed, infra), I shall refer to those exhibits, as well.

         In 2009, LumenR was founded by Gregory Piskun, M.D. ECF 1, ¶ 9. The company focused on developing a medical device that would aid in surgery to remove cancerous lesions and tumors from the colon, stomach, and esophagus. Id. The device is called the LumenR Tissue Retractor System (“Tissue Retractor”). Id. In May 2010, Piskun approached Kantsevoy at a convention to discuss the Tissue Retractor, and Kantsevoy said that the device could be useful. Id. ¶¶ 10-11.

         Kantsevoy describes himself as “an internationally known gastroenterologist, ” practicing at Mercy Hospital in Baltimore. ECF 1, ¶ 4. He claims that on June 12, 2010, Piskun “invited Dr. Kantsevoy to formally join the development team.” Id. ¶ 12. Kantsevoy alleges that Piskun made an “offer” that “included a promise to pay Dr. Kantsevoy the lesser of $500 per hour or $2500 per day for his consulting services.” Id. Kantsevoy insists that the “offer” “also included a promise to ‘create an equity ownership package'” for Kantsevoy, by which “[t]he parties understood that LumenR would provide Dr. Kantsevoy a reasonable equity package [in LumenR], the precise amount of which would be mutually and reasonably agreed upon later.” Id. Kantsevoy alleges that he “accepted the offer that day, ” and the next day “Dr. Piskun acknowledged in writing that Dr. Kantsevoy accepted the offer to work for LumenR.” Id.

         LumenR alleges a somewhat different story. LumenR agrees that Piskun and Kantsevoy met in May 2010, but alleges that in June, Piskun “sent an email to Kantsevoy inquiring regarding Kantsevoy's interest in consulting on the LumenR project.” ECF 12, ¶ 9. The email, dated June 12, 2010, stated, ECF 25-2 at 2:

Sergey - Thank you, It is an honor to get you involved. Let's start by introducing the technology to you?
If this is acceptable to you we would compensate your consulting time with $500/hour and $2500/day if need to spend a day on the company's business (meetings, labs, clinical studies, etc.) If it happens that you really [sic] excited about the technology and believe in its future, we can create an equity ownership package which may be a very substantial exit for you.
Please let me know your thoughts. If you prefer to talk on the phone please don't hesitate to call me at [REDACTED].
Best Regards,
Greg

         Kantsevoy replied, id: “Yes, I am interested. We can discuss more details by e-mail or by phone - both way [sic] are good for me. Sergey”. LumenR asserts that there were “no further communications on the topic of Kantsevoy's potential consulting arrangement until nearly a year later.” ECF 12, ¶ 9.

         LumenR claims that when Kantsevoy and Piskun met again in June 2011, Kantsevoy expressed interest in the Tissue Retractor. Id. ¶ 10. LumenR alleges that in September 2011, Piskun and Kantsevoy executed an agreement as to a different project, concerning the “HET” project (“HET Agreement”), not associated with LumenR, but also supervised by Piskun. Id. ¶ 11. The HET Agreement specified that Kantsevoy would receive $500 for each product evaluation form he submitted, and a $2, 000 honorarium for any speaking engagement he attended on behalf of the HET project. Id. The HET Agreement also provided equity compensation to Kantsevoy of 50, 000 shares. Id. In addition, the HET Agreement contained a confidentiality provision and a requirement that Kantsevoy assign to HET any intellectual property rights obtained in the course of the HET project.

         According to LumenR, Piskun's email forwarding the HET Agreement stated that “‘we will create the identical agreement for LumenR when ready to execute.'” Id[2] LumenR asserts that Kantsevoy executed the HET Agreement, but then later asked to rescind it. Id. Although the HET Agreement was rescinded on an unspecified date, LumenR alleges that Kantsevoy still wished to consult for LumenR on the Tissue Retractor, and Kantsevoy suggested lowering his per diem rate to $2, 000. Id. ¶ 12.

         LumenR maintains that when LumenR's patent application for the Tissue Retractor was filed, at an unspecified time, Kantsevoy was named as a co-inventor, but he assigned all his rights in the product to a corporation called “Macroplata, Inc., ” and his rights were subsequently assigned to LumenR. Id. ¶ 16. Kantsevoy states that he signed away his intellectual property rights, “for a symbolic fee of $1 and ‘other good and valuable consideration, '” which Kantsevoy alleges was understood to include an “‘equity ownership package'” in LumenR. ECF 1, ¶ 18.

         According to LumenR, between February 2012 and November 2013, Kantsevoy conducted several tests of the Tissue Retractor on animals, and received seven payments from LumenR at his per diem rate. ECF 12, ¶ 17. Further, LumenR maintains that Kantsevoy “expressed interest in conducting human clinical trials” with the Tissue Retractor, but that he “insisted on not being compensated by LumenR as this would allow him to publish peer reviewed articles, and participate in seminars and speaking engagements while being free of financial conflicts of interest.” Id. ¶ 18.

         LumenR alleges that it “agreed to have Kantsevoy self-sponsor clinical work, ” and “support[ed] Kantsevoy's efforts” with sample devices, technical support, and selective reimbursements. Id. ¶ 19. In “exchange” for this support, Kantsevoy was expected to “provide copies of the completed clinical trial data sheets to LumenR and to publish the results of his work.” Id. LumenR alleges that Kantsevoy never provided the clinical trial data sheets. Id. Further, LumenR insists that throughout Kantsevoy's clinical work, Kantsevoy continually “represented to LumenR, to peer reviewed publications, to professional organizations and . . . to the [Institutional Review Board] of Mercy Hospital, that Kantsevoy had no relevant financial disclosures and no financial conflicts.” Id. ¶ 20. LumenR asserts that it believed these representations to be true. Id.

         Only in April of 2016, LumenR maintains, did Kantsevoy “beg[i]n making unwarranted, unjustified and highly unethical demands for substantial retroactive payment, including company equity.” Id. ¶ 21. LumenR contends that it attempted to negotiate a contract with Kantsevoy, but Kantsevoy repeatedly “escalat[ed] his demands.” Id. ¶ 22.

         For his part, Kantsevoy asserts that he “invested time and effort into marketing the Tissue Retractor, ” in addition to publishing an academic paper describing his animal testing and making 36 presentations about the technology. ECF 1, ¶ 19. He contends that he “would not have exerted such substantial efforts had he not been promised ‘an equity ownership package' in the Tissue Retractor.” Id.

         In addition, Kantsevoy alleges that he was not paid for his work in accordance with the June 2010 “agreement, ” but was instead underpaid. Id. ¶ 21. In particular, he asserts that he was paid only for ten workshops, and for only eight of 21 animal experiments he conducted. Id. Plaintiff also alleges that when LumenR paid him for the eight experiments, “it underpaid Dr. Kantsevoy by $500 each time.” Id. Further, plaintiff contends that he has not been paid for other substantial contributions, and that he was not fully reimbursed for travel costs. Id.

         Notably, Kantsevoy asserts that during the working relationship, Piskun “repeatedly assured him that LumenR would adequately compensate Dr. Kantsevoy for his time and efforts.” Id. ¶ 13. Kantsevoy cites two occasions, in 2015 and 2016, on which Piskun “confirmed that Dr. Kantsevoy would be provided an equity stake in LumenR, ” but that “the exact value of that interest would have to wait for the sale of the technology.” Id. Since that time, however, Kantsevoy alleges that Piskun and LumenR have “disavowed” their “repeated offers of an equity stake in the company and, instead, proposed to compensate Dr. Kantsevoy in the form of vague promises that [another company] would fund Dr. Kantsevoy's future research or sponsor his scientific conferences.” Id. ¶ 23.

         In contrast, LumenR asserts that Kantsevoy threatened to “‘destroy' LumenR to his professional colleagues” if his demands were not met, and further threatened to destroy or compromise the data he had collected during his clinical trials. ECF 12, ¶ 25. LumenR alleges that Kantsevoy in fact carried out one of his threats by removing the Tissue Retractor from a previously announced showcase, thereby “casting the product in an unjustified negative light.” Id. ¶ 26.

         Finally, LumenR contends that from July 2016 to November 2016, after Kantsevoy discovered that LumenR was in talks with a third party about selling the rights to the Tissue Restractor, Kantsevoy disparaged LumenR to one or more employees of that third party, and claimed that he had an interest in the company, so as to discourage the third party from completing the purchase. Id. ¶ 27. Kantsevoy alleges that the third party, Boston Scientific Corporation (“BSC”), purchased the rights to the Tissue Retractor for approximately $40 million. ECF 1, ¶ 25. However, LumenR asserts that “Kantsevoy's interference with such third party diminished the value” of the ultimate sale. ECF 12, ¶ 28.

         This suit followed in February 2017. ECF 1. Additional facts are included in the Discussion.

         II. Motion to Amend

         A.

         As noted, suit was filed in February 2017. LumenR initially answered Kantsevoy's Complaint and counterclaimed on February 28, 2017. ECF 12. The Court issued a Scheduling Order on March 23, 2017. ECF 23. It set a deadline of May 24, 2017, for joinder of additional parties and amendment of pleadings. Id. at 1. A deadline of October 23, 2017, was set for completion of discovery, and the dispositive pretrial motions deadline was set for November 20, 2017. Id. at 2.

         On July 18, 2017, at the parties' request (ECF 45), the Court modified the Scheduling Order, extending various deadlines for expert disclosures, and extending the discovery deadline until November 15, 2017. ECF 47. At the eleventh hour, on the last day of discovery, the parties moved to extend discovery until December 1, 2017, and to extend the deadline for dispositive pretrial motions from November 20, 2017, until December 6, 2017. ECF 97. This request was also granted. ECF 98. Finally, on December 8, 2017, the parties moved to extend retroactively the discovery deadline by one day, to allow for the completion of their last deposition. ECF 118. The Court granted this motion. ECF 119.

         LumenR moved to amend its Answer and Counterclaims on December 12, 2017. ECF 120. That motion was filed ten days after the close of the discovery period that had been extended three times, six days after the deadline for dispositive motions, and about six months beyond the deadline for amendment of pleadings. In particular, LumenR seeks to add a counterclaim for Breach of Contract - Third Party Beneficiary. ECF 120-2 at 20-21.

         The proposed counterclaim alleges that Kantsevoy breached a contract by refusing to release to LumenR the data he collected in his human clinical trials. Id. The “contract, ” however, is alleged to be an informed consent form that Kantsevoy provided to the subjects of his clinical trial. ECF 120-2, ¶ 42. The consent form stated, inter alia, that “Mercy Medical Center and/or its outside partners in this research will own these data.” Id. ¶ 43. LumenR alleges that it was the only “outside partner” involved in the research and therefore, according to the consent form, it owns the data. Id. ¶ 45. Although LumenR was not a party to the consent form, it claims that it was a third party beneficiary to the agreement, and therefore it can enforce the clause of the consent form against Kantsevoy. ECF 120-1 at 2.

         In Kantsevoy's opposition to the Motion to Amend (ECF 144), he points out that LumenR did not move to amend its pleadings until long after the deadline of May 24, 2017, that this Court set for doing so (see ECF 23), and he argues that LumenR's belated amendment fails Fed.R.Civ.P. 16's “good cause” standard for modifying a scheduling order. ECF 144 at 18. Kantsevoy asserts that “LumenR's counsel knew all the facts necessary to bring [the new counterclaim] long before the deadline, ” but declined to do so until after the close of discovery and the pretrial motions deadline. Id. at 19-20. Kantsevoy further contends that allowing the amendment will prejudice him, as he would have no opportunity to conduct further discovery regarding the new claim. Id. at 20. In the alternative, Kantsevoy argues that the Court should deny leave to amend under Fed.R.Civ.P. 15, because the amendment is futile and would cause undue prejudice to Kantsevoy. Id. at 22-30.

         In its defense, LumenR asserts that “the relevant facts were not fully known by LumenR until well after the deadline of May 24, 2017 had passed.” ECF 120-1 at 1. In particular, LumenR cites the deposition of a representative of Mercy Medical Center, taken on July 19, 2017; the deposition of Kantsevoy himself, taken on November 11, 2017; and the deposition of Kantsevoy's expert, taken on December 2, 2017, as confirming that “no other ‘outside partners' other than LumenR were involved in the clinical trial of the LumenR device.” Id. at 2. Thus, LumenR maintains that the counterclaim “was not fully developed by LumenR until nearly the close of discovery.” ECF 158 at 7.

         B.

         A complaint may be amended “once as a matter of course” within twenty-one days of service of a defendant's answer or Rule 12(b), (e), or (f) motion, “whichever is earlier.” Fed.R.Civ.P. 15(a)(1)(b). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). However, the court “should freely give leave when justice so requires.” Id.

         At this juncture, however, LumenR must do more than satisfy the liberal standard for amendments set forth in Fed.R.Civ.P. 15(a). When, as here, a party seeks to amend a pleading after the expiration of a deadline set forth in a scheduling order, Rule 16(b)(4) is implicated. Rule 16(b)(4) states that a scheduling order may be modified to amend a pleading “only for good cause and with the judge's consent.”

         LumenR must first meet the requirements of Fed.R.Civ.P. 16(b)(4). “[A]fter the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings.” Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008); see also Cook v. Howard, 484 F. App'x 805, 814-15 (4th Cir. 2012) (“[U]nder Rule 16(b)(4), a party must first demonstrate ‘good cause' to modify the scheduling order deadlines, before also satisfying the Rule 15(a)(2) standard for amendment.”); Humane Soc'y of the United States v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, DKC-13-1822, 2016 WL 3668028, at *2 (D. Md. July 11, 2016) (hereinafter, “Humane Society”) (“Plaintiffs must do more than satisfy the liberal standard of Fed.R.Civ.P. 15(a); they must first meet the mandates of Fed.R.Civ.P. 16(b)(4) . . . .”); Elat v. Ngoubene, 993 F.Supp.2d 497, 519-20 (D. Md. 2014) (applying a two-prong test under Rules 16(b)(4) and 15(a) in analyzing an untimely motion for leave to amend).

         The “burden for demonstrating good cause rests on the moving party.” United States v. Hartford Accident & Indemnity Co., JKB-14-2148, 2016 WL 386218, at *5 (D. Md. Feb. 2, 2016). In order to demonstrate good cause, the party seeking relief must “‘show that the deadlines cannot reasonably be met despite the party's diligence, ' and whatever other factors are also considered, ‘the good-cause standard will not be satisfied if the [district] court concludes that the party seeking relief (or that party's attorney) has not acted diligently in compliance with the schedule.'” Cook, 484 F. App'x at 815 (alterations in Cook) (quoting 6A Wright & Miller, Federal Practice & Procedure § 1522.2 (3d ed.)).

         In determining whether the moving party has met its burden to show good cause, a court may consider “whether the moving party acted in good faith, the length of the delay and its effects, and whether the delay will prejudice the non-moving party.” Elat, 993 F.Supp.2d at 520 (citing Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768-69 (D. Md. 2010)). If the movant “‘was not diligent, the inquiry should end.'” Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D. Md. 2002) (quoting Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995)) (emphasis omitted); see, e.g., CBX Techs., Inc. v. GCC Techs., LLC, JKB-10-2112, 2012 WL 3038639, at *4 (D. Md. July 24, 2012) (denying motion to amend the complaint because the plaintiffs “failure to anticipate” its needs was “of its own doing and not the fault of any other entity”), aff'd, 533 F. App'x 182 (4th Cir. 2013).

         Of relevance here, when a movant fails to satisfy Rule 16(b), the court need not consider Rule 15(a). In Nourison, 535 F.3d at 299, the Court said: “Because we sustain the District Court's application of Rule 16(b), there is no cause for us to address the Court's finding that amendment would be futile, which is a Rule 15(a) consideration.” See also Humane Society, 2016 WL 3668028, at *6 (“Because Plaintiffs lack good cause for modifying the scheduling order under Rule 16(b), their remaining arguments in support of leave to amend under Rule 15 need not be considered.”); Marcum, 163 F.R.D. at 254 (“[T]he focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end.”).

         If the movant shows good cause for modification of the scheduling order, the inquiry shifts to Rule 15(a). Rule 15(a)(2) states: “[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” See also Foman v. Davis, 371 U.S. 178, 182 (1962); Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 769 (4th Cir. 2011). Under Rule 15(a), the district court has “broad discretion concerning motions to amend pleadings.” Booth v. Maryland, 337 F. App'x 301, 312 (4th Cir. 2009) (per curiam); see also Foman, 371 U.S. at 182; Laber v. Harvey, 438 F.3d 404, 426-29 (4th Cir. 2006) (en banc). A district court may deny a motion to amend for reasons “‘such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment or futility of the amendment.'” Booth, 337 F. App'x at 312 (quoting Foman, 371 U.S. at 182).

         Rule 16(b)(4) may appear at odds with Rule 15(a)(2). In Nourison, 535 F.3d at 298, the Fourth Circuit explained:

There is tension within the Federal Rules of Civil Procedure between Rule 15(a) and Rule 16(b) . . . . Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.” A motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile. HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001). On the other hand, Rule 16(b) provides that “a schedule shall not be modified except upon a showing of good cause and by leave of the district judge.”
* * *
Given their heavy case loads, district courts require the effective case management tools provided by Rule 16.
With this framework, I turn to analyze the rules as they apply here.

         C.

         In its Motion to Amend, LumenR merely gestures at the “good cause” standard of Rule 16(b). It states, ECF 120-1 at 3: “Here, there can be no real question that good cause exists to move the Court to permit LumenR to amend its Answer after the scheduling order deadline has passed because, as stated above, the relevant facts were not fully developed until late in 2017.” LumenR then moves on to discuss the more liberal standard of Rule 15(a). Id.

         Kantsevoy responds, emphasizing that “Rule 16 does not allow parties to sit back until their claims are fully proven; rather, it requires them to take action as soon as they have notice of the facts necessary to assert a claim.” ECF 144 at 21. According to Kantsevoy, LumenR “knew all the facts necessary to assert it proposed contract claim by the February 28, 2017 filing of its original counterclaims. Id. at 19.

         Indeed, LumenR admits in its reply that it “had knowledge of the language of the informed consent forms at this earlier time.” ECF 158 at 7. Still, LumenR contends that because the claim was not “fully developed” until “nearly the close of discovery, ” good cause exists to grant leave to amend. Id.

         I agree with Kantsevoy. By all accounts, LumenR was aware of the “core operative facts” of its proposed counterclaim before the deadline to amend the pleadings had passed, and “the fact that [LumenR] may not have had sufficient evidence to prove [its] claim before the deadline for the amendment of pleadings had no bearing on his ability to plead [its] claim in a timely manner.” Crouch v. City of Hyattsville, Md, DKC-09-2544, 2012 WL 718849, at *2-3 (D. Md. Mar. 5, 2012) (emphasis added) (internal quotation marks omitted). This suggests a lack of diligence on LumenR's part, and diligence is the focus of the Rule 16(b) inquiry. Marcum, 163 F.R.D. at 254.

         LumenR discusses the “good cause” standard more thoroughly in its reply (ECF 158), but it offers little in the way of justification for its tardiness. It asserts that “although LumenR had been aware of the informed consent form at the time of the deadline to amend the pleadings, it was not until its deposition of Mercy on July 19, 2017, when Mercy disclaimed any ownership in the clinical trial data, that LumenR first appreciated the potential counterclaim.” Id. at 9.

         This statement works against LumenR's ultimate goal in two ways. First, the fact that LumenR had not previously “appreciated” its potential counterclaim, despite having knowledge of the document that purportedly gave rise to it, does not support its claim of diligence. “Courts in the Fourth Circuit deny leave to amend a complaint past the deadline established by a scheduling order where the moving party has been careless in developing his claims or where he has failed to satisfactorily account for his failure to do so.” Tawwaab, 729 F.Supp.2d at 769.

         Second, and perhaps more important, July 19, 2017, was almost five months prior to the filing of the Motion to Amend on December 12, 2017. If, following the deposition on July 19, 2017, LumenR finally “appreciated” its potential counterclaim, it has not adequately explained why it waited five months before moving to amend. Rather, it contends that its delay is justified by its eventual confirmation in November 2017 that there were no other “outside partners” involved in the research, and by information obtained from Kantsevoy's expert, Dr. Paresh Shah, on December 2, 2017. ECF 158 at 9. At that time, LumenR learned that Dr. Shah “would not view Kantsevoy, an employee of Mercy, as being an ‘outside partner' of Mercy.” Id. LumenR does not explain why the opinion of its opposing party's expert on this question was the final element LumenR needed to plausibly plead its counterclaim.

         There is an important difference between modifying the Court's Scheduling Order shortly after the deadline to amend the pleadings has passed, and modifying it some six months later, after the close of discovery and the deadline to submit dispositive pretrial motions. See Crouch, 2012 WL 718849 at *2 n.4 (“Permitting Plaintiff to amend his complaint at this point in the proceedings would require not only that the deadline for the amendment of pleadings be modified, but likely that other deadlines be modified as well to accommodate additional discovery concerning any new claims.”); see also Brown v. Target, Inc., ELH-14-0950, 2016 WL 4443872, at *7-8 (D. Md. Aug. 18, 2016) (denying leave to amend where plaintiff should have known of a new claim at least two months earlier, but only sought to add the claim after the close of discovery).

         I conclude that LumenR has failed to show good cause under Rule 16(b) to modify the Scheduling Order. Therefore, I need not consider the propriety of amendment under Rule 15(a). Accordingly, I shall deny the Motion to Amend. ECF 120.

         III. Motions for Judgment on the Pleadings

         A. Legal Standard

         LumenR and Kantsevoy have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). A Rule 12(c) motion “for judgment on the pleadings” may be filed “[a]fter the pleadings are closed, ” so long as it is “early enough not to delay trial.” Fed.R.Civ.P. 12(c). Under Rule 12(h)(2)(B), a party may assert “failure to state a claim upon which relief can be granted” in a Rule 12(c) motion. Such a motion is “assessed under the same standard that applies to a Rule 12(b)(6) motion.” Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see also McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010).

         A party may test the legal sufficiency of a complaint or counterclaim by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd, 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.”

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' ..... (citation omitted)); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, ___ U.S. ___, 135 S.Ct. 346, 346 (2014) (per curiam).

         Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotations omitted).

         In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

         B. ...


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