United States District Court, D. Maryland
STEVEN B. SNYDER, M.D., P.A., et al, Plaintiffs,
CYNOSURE, INC., Defendant
Richard D. Bennett United States District Judge.
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. (Removal Notice, ECF No. 1.)
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.
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.)
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.)
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
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.
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).
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).
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.
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
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
contends that under Maryland law,  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
Count I - Negligent ...