moss v. moss et. al

7/29/2019 Moss v. Moss et. al.

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK

GERALD MOSS, individually, )Plaintiff, ) CIVIL ACTION NO.

-against- )KATHERINE MOSS, individually, )MICHAEL MOSS, individually, )

and )MOSS TUBES, INC., a New York Corporation )

Defendants. )

COMPLAINTPlaintiff, GERALD MOSS, fo r his complaint against defendants MICHAEL MOSS,

individually, KATHERINE MOSS, individually and Moss Tubes, Inc. (MTI), states asfollows:

INTRODUCTION1 . The Plaintiffbrings this action for declaratory relief against the Defendants

KATHERiNE MOSS, MICHAEL MOSS and MTI, as a result ofthe Defendants declared intentto seek immediate injunctive relief against the PlaintiffGERALD MOSS for alleged materialbreach of a contract regarding a Divorce Agreement hereto attached as Exhibit A.

2. The Plaintiff also brings this action based upon patent misuse of several expiredpatents that were assigned by the Plaintiff in the Divorce Agreement to the Defendants, and usedby Defendants to intimidate the Plaintiff GERALD MOSS and unlawfully coerce him to neveragain engage in any activity in the broad field of gastrointestinal feeding technology.

1:13-CV-1137 (MAD/RFT)


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THE PARTIES3. The Plaintiff, GERALD MOSS, is an individual residing at , White

Plains, New York 10605.4. The Plaintiff, GERALD MOSS, is a medical doctor, who also earned a Ph.D. in

Biochemistry, with more than forty years of experience designing and directing the manufactureofproducts for gastrointestinal feeding and decompression and has spent the majority of hisprofessional life focused on enhancing the field of enteral feeding technology, or feedingtechnology involving the introduction of nutrients directly into the gastrointestinal tract. He hasover 1 00 publications in profession journals. For 25 years he was on the full-time faculty ofRensselaer Polytechnic Institute as a tenured Professor of Biomedical Engineering. He also helda professorial appointment in the department of Surgery of Albany Medical College, and was apracticing clinical surgeon.

5. The Defendant, MTI, upon information and belief, is a New York corporationhaving its principal place ofbusiness at 749 Columbia Turnpike, East Greenbush, New York,12061.

6. The Defendant, KATHERiNE MOSS, upon information and belief, is anindividual residing at 84 Climer Circle, West Sand Lake, New York 12196.

7. The Defendant, MICHAEL MOSS, upon information and belief, is an individualand is the current Chief Executive Officer of MTI, having its principal place of business at 749Columbia Turnpike, East Greenbush, New York, 12061.

8. The Defendant MTI manufactures enteral feeding devices comprising tubesprovided fo r gastrointestinal decompression/feeding wherein the devices are designed to aspirate

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within the close confines of the distal esophagus and/or proximal duodenum to facilitate highrates ofnutrient absorption and increased rates ofwound healing and resistance to sepsis.

JURISDICTION AND VENUE9. This Court has jurisdiction over the subject matter ofthis action pursuant to 28

U. S .C. 1 33 1 , 1 3 3 8, 220 1 , 2202 and 1 5 U. S.C 1 1 2 1 . Further, this court has supplementaljurisdiction over the subject matter ofthis action pursuant to 28 U.S.C. 13 67(a).

10. Under N.Y. C.P.L.R. 302(a)(1), this Court has personaijurisdiction over theDefendant MTI because the Defendant MTI transacts business in the State ofNew York and/orcontracts to supply goods and services in the Sta te ofNew York.

1 1 . This Venue properly lies in this district pursuant to 28 U.S.C. 1391(b).12. The Plaintiff alleges that this district is proper since a substantial part of the

events giving rise to the claims occurred, or a substantial part ofthe property that is the subjectof this action is situated in this district.

BACKGROUND STATEMENT1 3 . The PlaintiffGERALD MOS S s first wife JudithMoss d ied of a severe

gastrointestinal complication (postoperative paralytic ileus) that made it impossible to nourishher with then current knowledge and techniques. The PlaintiffGERALD MOSS invented andhand-made a crude prototype ofthe Moss Tube in a vain attempt to save her life. Insubsequent months he perfected this device and utilized it in September, 1962, to successfullyfeed a young postoperative cancer patient at Albany Medical Center Hospital who had developedthe same complication.

14. Following the death ofhis first wife and the success in using his refined MossTube prototype to save the young patient, the PlaintiffGERALD MOSS utilized his medical

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knowledge to design other enteral feeding devices and systems to advance the field ofgastrointestinal feeding technology.

1 5. The Plaintiff GERALD MOSS is an expert in the field of enteral feeding and ispassionate about improving gastrointestinal feeding technologies.

16. The PlaintiffGERALD MOSS married his second wife, the DefendantKATHERiNE MOSS, on November 1 5, 1962.

1 7. On June 1 5, 1 999, the PlaintiffGERALD MOSS and the Defendant KATHERINEMOSS entered into a Divorce Agreement. (See Exhibit A ofthis Complaint).

1 8. The Divorce Agreement concerned the settling ofproperty rights between theparties (Gerald Moss and Katherine Moss) and set forth settlement terms pertaining to associatedbusiness interests ofthe parties.

1 9. During the marriage of the Plaintiff GERALD MOSS and the DefendantKATHERiNE MOSS, two (2) corporations were formed, to wit: Moss Tubes, Inc. and MossMedical Products, Inc.

20 . The Divorce Agreement prescribed the conveyance ofMoss Tubes, Inc. to theDefendant KATHERINE MOSS and prescribed the conveyance ofMoss Medical Products, Inc.to the PlaintiffGERALD MOSS.

21 . The Divorce Agreement prescribed the conveyance of specifically listedtrademarks to the Defendant KATHERINE MOSS.

22 . The Divorce Agreement prescribed the conveyance of specifically listed patentsinvented by PlaintiffGerald Moss to the Defendant KATHERINE MOSS.

23 . The Divorce Agreement prescribed the conveyance of specifically listed productmolds to the Defendant KATHERINE MOSS.

24 . The Divorce Agreement, in Paragraph 6(i) thereof, specifically provides:

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[Gerald Moss] and Moss Medical Products, Inc. : (1) shall notcompete, during [Gerald Mosss] lifetime, with Michael Moss,[Katherine Moss] or Moss Tubes, Inc. with respect to any matterswhatsoever concerning the use ofthe aforesaid Trademarks, Patentsand Molds conveyed to [Katherine Moss] under this Agreement; (2)shall not interfere with the business affairs ofMichael Moss,[Katherine Moss] or Moss Tubes, Inc., including, without limitation,[Gerald Mosss] agreement to have absolutely no contact whatsoeverwith any agents , customers or suppliers ofMoss Tubes, Inc., (e.g.,the sterilizers or manufacturers ofproducts or services sold by MossTubes, Inc.); and (3) shall keep all matters concerning all businessaffairs ofMoss Tubes, Inc. , [Katherine Moss] and Michael Mossconfidential during his lifetime.

25 . In the time since the Divorce Agreement was finalized, the DefendantsKATHERINE MOSS, MICHAEL MOSS and MTI, have engaged in a pattern of unlawfulintimidation designed to threaten the PlaintiffGERALD MOSS and pressure him to give up hisprofessional pursuits related to the advancement of enteral feeding technology.

26. In a letter on or about October 30, 2002 (attached hereto as Exhibit B),Defendants, KATHERINE MOSS, MICHAEL and MTI charged the Plaintiff, GERALD MOSS,

with breach of the Divorce Agreement and threatened legal action.27. The October 30, 2002 letter alleged violations of Paragraph 6(i) ofthe Divorce

Agreement not to compete with the business ofMTI, as well as violations of relatedconfidentiality provisions of the Divorce Agreement even though the noncompete set forth inParagraph 6(i) related only specifically with respect to matters whatsoever concerning the useof the aforesaid Trademarks, Patents and Molds.

28. In another letter on or about October 1 5, 2003 (attached hereto as Exhibit C),Defendants, KATHERiNE MOSS, MICHAEL and MTI again charged the Plaintiff, GERALDMOSS, with breach ofthe Divorce Agreement and again threatened legal action.

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29. The October 1 5, 2003 letter asserted that the Divorce Agreement did no t allow thePlaintiffGERALD MOSS to invent anything related in any way to the Defendants MTIsproducts, and further alleged that in consideration for effecting the Divorce Agreement thePlaintiffGERALD MOSS was paid NOT to engage in any biomedical engineering activities,and that doing so constituted a material breach ofthe Divorce Agreement, for which theDefendants would seek remuneration.

30. In yet another threatening letter on or about June 5, 2009 (attached hereto asExhibit D), the Defendants, KATHERINEMOSS, MICHAEL MOSS and MTI yet againcharged the Plaintiff, GERALD MOSS, with breach ofthe Divorce Agreement and againthreatened legal action.

3 1 . The June 5, 2009 letter asserted that the Divorce Agreement obligated thePlaintiff GERALD MOS S not to compete in any way with the Defendant MTI, and furtheralleged that the Divorce Agreement required the Plaintiff GERALD MOSS to stay ou t of theentire medical equipment business fo r gastrointestinal feeding technology because the DivorceAgreement supposedly established a prohibited technology area even though the noncompete setforth in Paragraph 6(i) related only specifically with respect to matters whatsoever concerningthe use of the aforesaid Trademarks, Patents and Molds.

32. The June 5, 2009 letter threatened in the most serious ofterms that any activity bythe Plaintiff in the broad field of gastro feeding technology would invoke cause for contempt ofcourt resulting in punishment or f ine, or imprisonment or both and would place all considerationpaid under the terms ofthe Divorce Agreement in jeopardy.

33. The June 5, 2009 letter further warned that ifthe PlaintiffGERALD MOSS didnot take down the informational website www.mossmed.com pertaining to the business

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conveyed to him under the terms ofthe Divorce Agreement (Moss Medical Products, Inc.),within ten (1 0) days, legal action would be taken to bring it down and pursue collection ofalleged damages.

34. The website www.mossmed.com pertaining to Moss Medical Products, Inc. (thebusiness that was conveyed to the PlaintiffGERALD MOSS under the terms of the DivorceAgreement) was not taken down. The website, which is informational only offering no productsor services for sale, has been active and accessible from the date of its inception on the web in2002 to the present day of the filing of this Complaint. A printed copy of the contents of the

website, as ofAugust 29, 2013 , is hereto attached as Exhibit E.35. Continuing the same pattern ofunlawful intimidation, the Defendants

KATHERiNE MOSS, MICHAEL MOSS and MTI again threatened the PlaintiffGERALDMOSS in a recent letter dated August 30, 2013 (attached hereto as Exhibit F) , declaring an intentto seek immediate injunctive relief against the PlaintiffGERALD MOSS, in an attempt tointimidate the PlaintiffGERALD MOSS to stay out of the medical equipment business fo r gastrofeeding technology.

36. The recent August 30, 2013 letter asserts that the Plaintiff GERALD MOSS hasdisregarded his legal obligations under the Divorce Agreement by inventing a new and improvedenteral feeding system and planning to market the same, which activities allegedly entitle theDefendants to immediate injunctive reliefwith penalties assessed against the Plaintiff GERALDMOSS.

37. The recent August 30, 2013 letter also portends that the Divorce Agreementallegedly prohibits any competition by the PlaintiffGERALD MOSS with any technologymerely identified by the Trademarks, Patents (even the expired patents) and Molds listed in the

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Divorce Agreement, or in other words, the Divorce Agreement supposedly prohibits the PlaintiffGERALD MOSS from inventing and introducing new and/or improved medical equipment, suchas stomach and gastric tubes, and naso-gastric feeding devices, etc., thereby effectivelyprecluding the PlaintiffGERALD MOSS from ever again engaging in any activity in the broadfield ofmedical feeding technology.

3 8 . The recent August 30, 201 3 letter reaches still further and asserts that the PlaintiffGERALD MOSSs new inventions pertaining to feeding catheters and enteral feeding, as setforth in several patents and pending applications owned by the PlaintiffGERALD MOSS,violate the Divorce Agreement even when the Plaintiffs new inventions and correspondingpatents and patent applications were developed and protected under patent rights long after theprovisions ofthe Divorce Agreement were settled, because supposedly the mere filing of patentapplications in the broad field of enteral feeding somehow violates the Divorce Agreement byostensibly limiting the possibility of future innovation and exclusivity by the Defendant MTJ.

39. The Defendants, in the recent August 30, 2013 letter, threaten that any attemptsby the PlaintiffGERALD MOSS to commercialize his patented innovations would constitute abreach of the Divorce Agreement, as well as a violation of the corresponding Court Order(attached hereto as Exhibit G) which incorporates the Divorce Agreement by reference.

40. The August 30, 201 3 letter also alleges that the Plaintiff GERALD MOSSsconduct violates a plethora of state and federal laws, namely, unjust enrichment and unfaircompetition in violation ofNew York State common law, deceptive trade practices and falseadvertising in violation ofsections 349-350 ofNew York States General Business Law,trademark infringement in violation of sections 32 and 43 ofthe Lanham Act, 15 U.S.C. l 114

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and 1 125, unfair competition and false advertising in violation of section 43 of the Lanham Act,1 5 U.S.C. 1 125, and constitutes a material breach of your Agreement and contempt of Court.

41 . Again, in the recent August 3 0, 2013 letter, the Defendants brazenly charge thatthe Divorce Agreement prohibits the PlaintiffGERALD MOSS from engaging in any activityrelated to the medical equipment business for gastro feeding technology.

42. The August 30, 2013 letter also purports that the Plaintiff GERALD MOSSsconduct is so willfully flagrant it undermines the legal system and invokes cause fo r punitivedamages, and the Defendants threaten to pursue any and all remedies available for contempt,including fine or imprisonment, or both.

43 . The Defendants, in the recent August 3 0, 2013 letter, impermissibly extended thescope of their patent claims and use their expired patents which are free for the whole world touse to shamelessly require the PlaintiffGERALD MOSS to take no action whatsoever tocommercialize, sell, license or transfer any ofthe PlaintiffGERALD MOSSs patents or patentapplications related to the entire field of enteral feeding, and further required the PlaintiffGERALD MOSS and his attorneys to refrain from filing any new patent applications andprosecuting any existing applications that are likewise related to the broad field of enteralfeeding.

44 . The Defendants further threaten in the recent August 3 0, 201 3 letter, that if thewww.mossmed.com website is not taken down by September 9, 2013, action will be taken tobring it down and seek costs against the Plaintiff GERALD MOSS even though the site has beencontinually active for over ten (1 0) years.

45 . Similar to the previous threatening letters of October 3 0, 2002, October 13 , 2003,and June 5, 2009, the recent August 3 0, 201 3 letter proclaims that the conduct of the Plaintiff

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GERALD MOSS constitutes a material breach of the Divorce Agreement, and the Defendantsthreaten to bring action for the alleged violation.

46. For the reasons set ou t below and in view of the above, the PlaintiffGERALDMOSS respectfully requests a Declaratory Judgment from the Court rejecting any attempts bythe Defendants KATHERiNE MOSS, MICHAEL MOSS or MTI to impose an injunction andholding that the PlaintiffGERALD MOSSs activities do not violate the Divorce Agreement nordo they violate any provisions of state or federal law.

ACTUAL CASE OR CONTROVERSY47. There is an actual case or controversy between the parties because the Plaintiff,

GERALD MOSS, has a reasonable apprehension that the Defendants, KATHERINE MOSS,MICHAEL MOSS, and MTI, will take the threatened action against Plaintiffregarding hiswebsite, and will also bring suit against Plaintiff for the alleged violations of the DivorceAgreement.

COUNT ITHE PLAINTIFF IS NOT IN VIOLATION OF THE 1999 DIVORCE AGREEMENT

48. The Plaintiffrepeats and realleges the statements and allegations set forth inParagraphs 1-47 above.

49. The Defendants have repeatedly threatened legal action against the Plaintiffbasedupon their interpretive allegation that the Divorce Agreement imposes a lifetime ban preventingthe Plaintiff f rom ever conducting any business in the entire field of gastro enteral medicine.

50. This interpretation is contrary to the parties intents when they drafted the DivorceAgreement.

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5 1 . Such an interpretation is also overly broad and unconscionably restricts thePlaintiff in h is business and livelihood.

52. Such an interpretation ignores the fact that the Plaintiffretained control over MossMedical Products, Inc., under the terms ofthe Divorce Agreement.

53. Such an interpretation also ignores the express conditions ofParagraph 6(i) of theDivorce Agreement, conditions which limited themselves to the rights residing in specificallylisted trademarks, patents and product molds conveyed by the Plaintiff to the Defendant, ratherthan the expansive, and entirely unlimited injunction over an entire field of technology which theDefendant had repeatedly threatened to impose.

54. Such an interpretation disregards the important scientific advances made by thePlaintiffand denies the public the benefit ofhis discoveries and inventions.

COUNT!!PATENT MISUSE BY THE DEFENDANTS

55. The Plaintiffrepeats and realleges the statements and allegations set forth inParagraphs 1 -54 above.

56. The Defendants have sought to impermissibly broaden the physical and temporalscope of the patents conveyed under the Divorce Agreement, by repeatedly threatening thePlaintiff that any technology merely identified, let alone physically claimed, by the patents listed

in the Divorce Agreement, is offlimits for the Plaintiff to invent and/or introduce any new orimproved medical equipment, such as stomach and gastric tubes, and naso-gastric feedingdevices, etc., thereby seeking to broaden the temporal scope ofthe patent claims beyond theirterm of expiration via threatening attempts to effectively preclude the PlaintiffGERALD MOSS

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from ever again engaging in any activity competitive or otherwise, in the broad field of medicalfeeding technology.

57. The Defendants intimidating threats that the mere filing ofpatent applications inthe broad field of enteral feeding somehow violates the Divorce Agreement by ostensiblylimiting the possibility of future innovation and exclusivity by the Defendant MTI furtherprovoke significant and anticompetitive effect upon the Plaintiff.

58. The Defendants impermissibly extended the scope oftheir patent claims andrequired the Plaintiff to take no action whatsoever to commercialize, sell, license or transfer anyof the Plaintiff s patents or patent applications related to the entire field of enteral feeding, andfurther required the Plaintiff and h is attorneys to refrain from filing any new patent applicationsand prosecuting any existing applications that are likewise related to the broad field of enteralfeeding.

59. Even though many of the patents conveyed in 1 999, by the Plaintiff to theDefendants in compliance with the Divorce Agreement are now expired, the Defendants havebrazenly sought to skirt federal law and extend the effectual monopoly ofpatent rights beyondstatutory term limits by asserting that the Plaintiff GERALD MOSSs new inventions pertainingto feeding catheters and enteral feeding, as set forth in several patents and pending applicationsowned by the PlaintiffGERALD MOSS, violate the Divorce Agreement even when thePlaintiffs new inventions and corresponding patents and patent applications were developed andprotected under patent rights long after the provisions of the Divorce Agreement were settled andsubsequent to the expiration of the statutory terms corresponding to patents conveyed under theDivorce Agreement.

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COUNT IIIDEFENDANTS CLAIMS NOW BARRED BY THE STATUTE OF LIMITATIONS

60. The Plaintiffrepeats and realleges the statements and allegations se t forth inParagraphs 1 -59 above.

61 . As shown by the threatening letters dating back to 2002 and 2003 , the Defendantshave been aware of alleged material breaches for almost eleven years.

62. The statute of limitations for breach of contract claims in New York is six years,as established by N.Y. C.P.L.R. 2 13(2).

63. Further, as stated in N.Y. C.P.L.R. 203(a), this term begins to run as soon as thecause of action accrues- in th is c ase beginning at least as early as the original 2002 letter allegingmaterial breaches.

64. Any actions brought by the Defendant based upon these claims are thus untimely.

PRAYERWHEREFORE, the Plaintiff GERALD MOSS, prays:

1 . For declaratoryjudgment from the Court that Plaintiff GERALD MOSS is no t inbreach of the Divorce Agreement.

2. For declaratoryjudgment from the Court that the Divorce Agreement does no timpose a lifetime ban preventing the PlaintiffGERALD MOSS from ever conducting anybusiness in the field of gastro enteral medicine.

3. For declaratoryjudgment from the Court rejecting any attempts by the DefendantsKATHERINE MOSS, MICHAEL MOSS or MTI to impose an injunction on the PlaintiffGERALD MOSSs lawful and permissible activities within the field of enteral feedingtechnology

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4. For declaratoryjudgment that Defendants efforts to impermissibly broaden thephysical and temporal scope of the patents conveyed under the Divorce Agreement, byrepeatedly threatening the Plaintiff that any technology merely identified, let alone physicallyclaimed, by the patents listed in the Divorce Agreement, is off limits for the Plaintiff GERALDMOSS, thereby prohibiting his rightful operation in th e field of gastro enteral medicine, and, assuch, constitutes patent misuse.

5. For declaratoryjudgment that the PlaintiffGERALD MOSS s patents andpending patent applications covering new inventions and/or improvements to technologies

associated with gastro enteral medicine are properly enjoyed and the mere filing of patentapplications in the broad field of enteral feeding does not violate the Divorce Agreement.

6. Fore declaratory judgment that the PlaintiffGERALD MOSS can invent newtechnical advances and/or improvements related to the Defendants MTIs products, where suchnew inventions and/or improvements do not violate the Defendants patent rights, particularlywhere the statutory term of Defendants applicable patents has expired.

7. For declaratoryjudgment that the PlaintiffGERALD MOSS s engagement inbiomedical engineering activities does not constitute a material breach of the DivorceAgreement.

8 . Fore declaratoryjudgment that the Divorce Agreement does not establish aprohibited technology area preventing the PlaintiffGERALD MOSS from operating in any waywithin the entire medical equipment business fo r gastrointestinal feeding technology.

9. For declaratoryjudgment that any activity at all by the PlaintiffGERALD MOSSin the broad field of gastro feeding technology will not invoke cause for contempt of court

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resulting in punishment or fine, or imprisonment or both and would not place all considerationpaid under the terms ofthe Divorce Agreement in jeopardy.

10. For declaratoryjudgment that the Plaintiffs website www.mossmed.compertaining to Moss Medical Products, Inc. (the business that was conveyed to the PlaintiffGERALD MOSS under the terms of the Divorce Agreement) does not violate the DivorceAgreement.

1 1 . For declaratory judgment that all attempts by the PlaintiffGERALD MOSS tocommercialize his patented innovations would not constitute a breach of the Divorce Agreement,as well as a violation of the corresponding Court Order.

12. For declaratoryjudgment that the PlaintiffGERALD MOSSs conduct does notviolate a plethora of state and federal laws, namely, unjust enrichment and unfair competition inviolation ofNew York State common law, deceptive trade practices and false advertising inviolation ofsections 349-350 ofNew York States General Business Law, trademarkinfringement in violation ofsections 32 and 43 ofthe Lanham Act, 15 U.S.C. 1ll4 and 1125,unfair competition and false advertising in violation of section 43 ofthe Lanham Act, 15 U.S.C. 1 125, and constitutes a material breach of your Agreement and contempt of Court.

13 . For declaratory judgment that the PlaintiffGERALD MOSS s conduct is no t sowillfully flagrant it undermines the legal system and invokes cause for punitive damages.

14. For declaratory judgment that any and all of the above enumerated claims arisingou t of the Plaintiff s alleged breach of contract are permanently barred by the applicable statuteof limitations.

1 5. For declaratory judgment awarding other such relief as the Court deems just andappropriate.

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JURY DEMAND16. The PlaintiffGERALD MOSS demands a trial byjury on all issues so triable.

DATED: September 12, 2013s/Jonathan M. MadsenJonathan M. Madsen, Bar No. 662011Attorneys for PlaintiffSchmeiser, Olsen & Watts LLP22 Century Hill Drive, Suite 302Latham, New York 12110Telephone: (518) 220-1850Facsimile: (518) 220-1857E-mail: aolseniplawusa.com

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moss v. moss et. al

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