ohm: It all depends how you would define "quick, c
Post# of 155128
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Posted On: 04/03/2024 9:43:29 PM
ohm: It all depends how you would define "quick, clean and easy."
If Vyera's ultimate assignee or a bankruptcy trustee were to file a lawsuit seeking specific performance re distribution rights, SA could file an answer seeking dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief could be granted or under 12(c) for judgment on the pleadings. However, the likelihood that the plaintiff's chosen attorney would be so inept as to be unable to draft a complaint containing allegations that, if proven, would establish an assignable right to distribute LL, is, unfortunately, quite low. in my opinion.
In these circumstances, all allegations in the complaint would be accepted as true for purposes of the motions to dismiss. To ultimately disprove those allegations, SA would likely need to conduct discovery (interrogatories, depositions, etc), and then file a motion for summary judgment under Rule 56 essentially arguing that the plaintiff's evidence in support of the allegations in the complaint fails to create any issue of material fact and that the moving party is entitled to judgment as a matter of law. Absent the appearance of a reputable drug distributor in the assignment chain, the motion for summary judgment would almost certainly be granted. But the summary judgment process is neither quick nor cheap in terms of attorneys fees, and that is why I raised the possibility of a nuisance value settlement.
What clearly would be much quicker and cheaper would be if SA could obtain dismissal under the frivolous lawsuit provisions of Rule 11. However, that would involve attacking the integrity of the plaintiff's lawyers in signing the complaint, and Rule 11 motions were rarely granted during my years of practice.( I did practice as a trial lawyer for 30 years, but have been retired since 2001. So feel free to disregard all of the above as the incoherent ramblings of a confused old man.)
If Vyera's ultimate assignee or a bankruptcy trustee were to file a lawsuit seeking specific performance re distribution rights, SA could file an answer seeking dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief could be granted or under 12(c) for judgment on the pleadings. However, the likelihood that the plaintiff's chosen attorney would be so inept as to be unable to draft a complaint containing allegations that, if proven, would establish an assignable right to distribute LL, is, unfortunately, quite low. in my opinion.
In these circumstances, all allegations in the complaint would be accepted as true for purposes of the motions to dismiss. To ultimately disprove those allegations, SA would likely need to conduct discovery (interrogatories, depositions, etc), and then file a motion for summary judgment under Rule 56 essentially arguing that the plaintiff's evidence in support of the allegations in the complaint fails to create any issue of material fact and that the moving party is entitled to judgment as a matter of law. Absent the appearance of a reputable drug distributor in the assignment chain, the motion for summary judgment would almost certainly be granted. But the summary judgment process is neither quick nor cheap in terms of attorneys fees, and that is why I raised the possibility of a nuisance value settlement.
What clearly would be much quicker and cheaper would be if SA could obtain dismissal under the frivolous lawsuit provisions of Rule 11. However, that would involve attacking the integrity of the plaintiff's lawyers in signing the complaint, and Rule 11 motions were rarely granted during my years of practice.( I did practice as a trial lawyer for 30 years, but have been retired since 2001. So feel free to disregard all of the above as the incoherent ramblings of a confused old man.)
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