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Steven B. Snyder, M.D, P.A. v. Cynosure, Inc.

United States District Court, D. Maryland

March 27, 2019

STEVEN B. SNYDER, M.D., P.A., et al, Plaintiffs,
CYNOSURE, INC., Defendant


          Richard D. Bennett United States District Judge.

         Dr. Steven B. Snyder ("Snyder") and Dermatology Laser Center & Medispa (collectively, "Plaintiffs") bring this action against Defendant Cynosure, Inc. ("Cynosure") based on the purchase of a medical device from Cynosure that uses laser technology to remove tattoos. (Compl., ECF No. 5.) Plaintiffs allege that Cynosure made false and misleading representations in their sales literature, and the device does not remove tattoos as represented. (Id.) Initially, in 2015, Plaintiffs joined a purported class action lawsuit in Illinois against Cynosure, but they were dismissed from the case for lack of personal jurisdiction in January 2018. (Id. at ¶ 43; see also LDGP, LLC v. Cynosure, Inc., Case No: 15 C 50148, 2018 WL 439122 (N.D. Ill. Jan. 16, 2018).) Plaintiffs then filed the instant lawsuit in the Circuit Court for Baltimore County, Maryland on May 11, 2018. (Compl., ECF No. 5.) The Defendant timely removed the case to this Court on July 6, 2018 based on diversity of citizenship, pursuant to 28 U.S.C § 1332.[1] (Removal Notice, ECF No. 1.)

         Currently pending before this Court is Defendant Cynosure, Inc.'s Motion to Dismiss (ECF No. 14). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the following reasons, Cynosure's motion is GRANTED, and Plaintiffs' Complaint shall be DISMISSED. Counts I and IV shall be DISMISSED WITH PREJUDICE, and Counts II and III shall be DISMISSED WITHOUT PREJUDICE.


         In ruling on a motion to dismiss, this Court "accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff." Wikimedia Found, v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). This case arises out of Plaintiffs' purchase of the PicoSure© Picosecond Aesthetic Workstation ("PicoSure") for use at Snyder's dermatology practice in Baltimore County, Maryland, (Compl. ¶ 5, ECF No. 5.) Cynosure markets the PicoSure for use in dermatology for laser removal of tattoos and benign pigmented lesions. (Id. at ¶ 18.) Plaintiffs allege that Cynosure used "fake pictures" in its advertising, "Photoshopped" the "before and after" photographs, and made false and misleading representations about the lasers' performance. (Id. at ¶¶ 24-26.) The pricing of the product was significantly higher than other lasers on the market, allegedly based on superior quality, but was not effective at removing tattoos. (Id. at ¶¶ 22, 30.) Cynosure also markets and sells the PicoSure Focus Lens Array ("Focus Lens") for use with the PicoSure to improve the look and appearance of skin, reducing or removing scars and wrinkles. (Id. at ¶¶ 29, 38.)

         Plaintiffs allege that Cynosure knew that the representations it was making were false and misleading and made them to induce and entice Plaintiffs into purchasing the PicoSure and Focus Lens. (Id. at ¶¶ 31, 33.) Plaintiffs state that they relied upon Cynosure's representations when they purchased the products. (Id. at ¶¶ 33-34.) The promotional material was also supplied to Plaintiffs' customers, which resulted in false expectations that were ultimately disappointing because actual performance was worse than the older, less expensive lasers could achieve. (Id. at ¶¶ 35-39.) Consequently, Plaintiffs' customers requested refunds and Plaintiffs lost substantial money by refunding money for treatments that did not work. (Id. at ¶ 39.) When Plaintiffs complained to Cynosure about the problems with the PicoSure, Cynosure represented that the problems were unique to Plaintiffs, and other doctors were experiencing results consistent with Cynosure's representations. (Id. at ¶ 40.) Cynosure sent its employees to Plaintiffs' practice to repair and service the products, but the products never performed as Cynosure had represented. (Id.)

         In June 2015, a Complaint was filed against Cynosure in the United States District Court for the Northern District of Illinois for fraud and misrepresentations regarding the PicoSure. (Id. at ¶ 43, citing LDGP, LLC v. Cynosure, Inc., Case No: 15 C 50148 (N.D. Ill.).) Plaintiffs learned about the lawsuit in July 2015 and became aware that other doctors were experiencing the same issues and problems. (Id. at ¶ 43.) Plaintiffs joined the purported class action but were dismissed in January 2018 with all other nonresident Illinois plaintiffs, because the Court lacked personal jurisdiction over the claims of the nonresident plaintiffs. (Id. at 44; LDGP, LLC v. Cynosure, Inc., Case No: 15 C 50148, 2018 WL 439122 (N.D. Ill.).)

         The instant lawsuit was then filed in the Circuit Court for Baltimore County, Maryland on May 11, 2018, including four causes of action: (1) Count I - Negligent Misrepresentation; (2) Count II - Intentional Misrepresentation - Fraud; (3) Count III - Intentional Misrepresentation - Concealment/Nondisclosure; (4) Count IV - Breach of Express Warranty. (Compl., ECF No. 5.) Cynosure timely removed the case to this Court on July 6, 2018 and filed the instant motion to dismiss on August 6, 2018. For the following reasons, Cynosure's motion will be GRANTED, and Plaintiffs' Complaint will be DISMISSED.


         Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Or. 2006); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016).

         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." Bell Ail, Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Under the plausibility standard, a complaint must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). A complaint need not include "detailed factual allegations." Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. A complaint must, however, 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). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to plead a claim. Iqbal, 556 U.S. at 678; see A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011).

         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); Ball v. DirectTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017). Legal conclusions drawn from those facts, however, are not afforded such deference. Iqbal, 556 U.S. at 678.

         In general, courts do not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses" through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The purpose of the rule is to ensure that defendants are "given adequate notice of the nature of a claim" made against them. Twombly, 550 U.S. at 555-56. However, "where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6)." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009); see also U.S. ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014).

         Rule 9(b) of the Federal Rules of Civil Procedure requites that "the circumstances constituting fraud be stated with particularity." Fed.R.Civ.P. 9(b). The rule "does not require the elucidation of every detail of the alleged fraud, but does require more than a bare assertion that such a cause of action exists." Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1074 (D. Md. 1991). To satisfy the rule, a plaintiff must "identify with some precision the date, place and time of active misrepresentations or the circumstances of active concealments." Johnson v. Wheeler, 492 F.Supp.2d 492, 509 (D. Md. 2007). As the United States Court of Appeals for the Fourth Circuit stated in United States ex rel. Nathan v. Takeda Pharms. North America, Inc., 707 F.3d 451 (4th Cir. 2013), the aims of Rule 9(b) are to provide notice to defendants of their alleged misconduct, prevent frivolous suits, eliminate fraud actions where all the facts are learned after discovery, and protect defendants from harm to their goodwill and reputation. 707 F.3d at 456 (citation omitted).


         Cynosure contends that under Maryland law, [2] the Purchase Agreement (ECF No. 14-4) contains an express disclaimer of warranty, the tort claims are subsumed under the contract, the economic loss doctrine forecloses negligence claims seeking only economic damages, and the intentional misrepresentation claims are not pled with particularity as required under Fed.R.Civ.P. 9(b). (Mot. Mem. 1-2, ECF No. 14-1.) Cynosure seeks dismissal of all claims, or in the alternative, seeks dismissal of Plaintiffs' damages claims for lost profits and revenue as barred by the Purchase Agreement. (Id. at 12.) Each cause of action shall be addressed in turn.

         I. Count I - Negligent ...

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