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Motion to Dismisss Abarca

Motion to Dismisss Abarca

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Published by jeanvidalpr

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Published by: jeanvidalpr on Mar 22, 2011
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03/22/2011

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF PUERTO RICO
ABARCA HEALTH, LLC and PHARMACYINSURANCE CORPORATION OF AMERICAPLAINTIFFS,v.PHARMPIX CORPORATION; HERMINIOJOSÉ CORREA GARCÉS; JANE DOE ANDTHE CONJUGAL PARTNERSHIPCOMPOSED BY THEM; JAIME FIGUEROATORRES; MARY DOE AND THE CONJUGALPARTNERSHIP COMPOSED BY THEM;MARTY MARTINEZ FRATICELLI; ANA ROEAND THE CONJUGAL PARTNERSHIPCOMPOSED BY THEM; AND MARCOS A.GONZALEZ CARBALLO; SUSAN ROE ANDTHE CONJUGAL PARTNERSHIPCOMPOSED BY THEMDEFENDANTS.Civ. No. 11-1218 (GAG)RE: INJUNCTIVE RELIEF,COPYRIGHT INFRINGEMENTAND DAMAGESPLAINTIFFS REQUEST JURYTRIAL
MOTION TO DISMISS AND MOTION IN OPPOSITION TO MOTION REQUESTINGPRELIMINARY INJUNCTION
 
TO THE HONORABLE COURT:NOW COME
Defendants PharmPix Corporation; Martty Martínez Fraticelli;Marcos González Carballo; Herminio Correa Garcés; Jaime Figueroa Torres, and theconjugal partnership composed between Jaime Figueroa Torres and Mary Doe, throughtheir undersigned attorney, and respectfully state, allege and pray:
 I. INTRODUCTION
On February 25, 2011, plaintiffs, Abarca Health, LLC (“Abarca”) and PharmacyInsurance Corporation of America (“PICA”) filed
a complaint against defendants forseveral causes of actions, namely; copyright infringement, unfair competition, unlawful
Case 3:11-cv-01218-GAG Document 25 Filed 03/17/11 Page 1 of 24
 
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appropriation and divulgation of trade secrets, breach of contract, and breach offiduciary duty. In order to bring their claims before this Honorable Court, plaintiffs havemade unsupported allegations under sections 501
504 of the Copyright Act andsection 43(a) of the Lanham Act by claiming that they own two copyrights over a
computer software program named “Pharmacy Agent”
, which they allege co-defendantsare somehow infringing. Along with their complaint, plaintiffs have filed a motionrequesting a preliminary injunction to enjoin defendants from continuing the allegedinfringing conduct, where they basically reiterate their claims of infringement againstdefendants.However, it will be
proven that plaintiffs’
allegations fail to state a claim forinfringement upon which this court may grant the requested relief. It is evident fromplaintiffs
allegations, as well as from the exhibits attached to their complaint, thatplaintiffs support their claim solely on speculation and fail to at least identify whichelements,
if any,
- of their computer software are being allegedly infringed, and what
elements of defendants’ software cause the alleged infringement. Simply put: plaintiffs
 copyright infringement claims lack ripeness, since they are based on mere allegationswithout any evidence to support their claims and furthermore, they do not specify whatpart of their software is being allegedly
infringed by defendants’ software.
As it is
evident by plaintiffs’ discovery
request [Docket No. 5
], plaintiffs’ claim
andrequest is nothing more than a fishing expedition and an excuse to sneak into
defendants’ trade secrets and proprietary information.
 Moreover,
plaintiffs’ allegations
are only supported by the suspicious statementsof
Mr. Scott Domínguez,
one of
plaintiffs’
 
and defendants’
former employees, who,
Case 3:11-cv-01218-GAG Document 25 Filed 03/17/11 Page 2 of 24
 
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among others: (1) was forced to resign for mishandling
PICA’s corporate resources;
(2)
continued accessing PharmPix’s database and servers after being terminated
from hisemployment; and (3) provided plaintiffs with unreliable evidence to support a copyright
infringement cause of action. Certainly, Mr. Dominguez’ illegal actions are ver 
ysuspicious and make us wonder;
what does Mr. Scott Domínguez gain by providingthis kind of misleading information to plaintiffs?
 
Obviously, the forced answer isthat at the very least, he is gaining something from plaintiffs.
 Nevertheless, as it will be further discussed in detail, not only plaintiffs are notentitled to the requested injunctive relief;
plaintiffs are not entitled to seek anyremedy before this Court at all
. A
comprehensive review of plaintiffs’ complaint
andexhibits clearly shows that more than 90% of the allegations set forth in their complaintare for breach of contract, not under the Copyright or the Lanham Acts. Rather,
plaintiffs’
allegations and exhibits show that their claims arise under state contract lawand, accordingly, they must be heard before the courts of the Commonwealth of PuertoRico. Therefore, not only should this Honorable Court deny plaintiffs
request forpreliminary injunction without the need of a hearing, but to the extent that plaintiffs
owncomplaint lacks a bona fide claim for copyright infringement or unfair competitionagainst defendants, the same should be dismissed for lack of federal jurisdiction and forfailure to state a claim upon which relief can be granted.
Finally, but certainly not least, we must bring before this Honorable Court’s
attention that the herein appearing defendants have a copyright registration fortheir software, which predates any of plaintiffs
copyright registrations.Accordingly, the ownership rights that flow from defendants
registration are far
Case 3:11-cv-01218-GAG Document 25 Filed 03/17/11 Page 3 of 24

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