United States District Court, W.D. Pennsylvania
September 15, 2005.
TODAY'S TDI, INC., Plaintiff/Counterclaim Defendant,
MEDICINE SHOPPE INTERNATIONAL, INC., et al., Defendants/Counterclaim Plaintiffs.
The opinion of the court was delivered by: DAVID CERCONE, District Judge
AND NOW, this 15th day of September, 2005, after de
novo review of the record and upon due consideration of the
magistrate judge's report and recommendation filed on July 14,
2005, and defendants' objections thereto, IT IS ORDERED that the
Defendants' Motion for Summary Judgment (Doc. 62) be, and the
same hereby is, granted in part; summary judgment is entered in
favor of the Defendants regarding the Plaintiff's claims; and
summary judgment is entered in favor of the Plaintiff regarding
the Defendants' Counterclaims. The motion is denied in all other
aspects. The Clerk shall close this case. The report and
recommendation is adopted as the opinion of the court.
Defendants' objections are unavailing. First, the magistrate
judge did take into account much of defendant's non-traditional
theory of unfair competition and the factual components of that
claim. See Report and Recommendation at 2-3, 5, 6, & 7. He
simply and accurately determined that defendants have failed to
identify a single prospective or actual customer whose business
was diverted by any means that could support a viable claim for
unfair competition. Id. at 5. Nor have counter claim plaintiffs
come forward with evidence of a single prospective customer whose
business became the subject of interference. Id. at 6. And
their wholesale customer approach falls woefully short of the
quantum of evidence needed to support a finding that any of TDI's customers had dealings with the Medicine Shoppe
that would support a reasonable expectation of future contractual
business.*fn1 Id. The magistrate judge also succinctly and
aptly pointed out that defendants' effort to use the same
approach to establishing actual recoverable damages under a
tortious interference claim suffers from the same shortcomings.
Id. at 8.
In short, defendants have failed to present any affirmative
proof that would permit the finder of fact to conclude that
Today's TDI's customers were or likely would have been customers
of the Medicine Shoppe within the territorial reach of the
License Agreement. And there is no basis in the record to permit
such a finding by inference. Therefore, in addition to the many
shortcomings of counter claim plaintiffs' theories noted by the
magistrate judge, it is abundantly clear that defendants'
non-traditional unfair competition claim and tortious
interference claims all collapse from the lack of any evidence to
support an essential factual finding: that any Today's TDI
customer was improperly diverted by Today's TDI or in any event
would likely have placed his or her business at the Crafton
Medicine Shoppe as an alternative to doing business with Today's
TDI. Consequently, the counter claim plaintiffs' theories all
reduce to the Medicine Shoppe's desire to share in Today's TDI's
profits without proof that any such profits were improperly
gained from actual or prospective Crafton Medicine Shoppe
customers. Such a desire does not provide a supported viable
claim for relief against Today's TDI and as a result the recommendation of the magistrate judge is entirely
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