IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NUTRIMOST, LLC,
Plaintiff,
v.
DR. HOWARD I. WERFEL et. al.,
Defendants.
Civil Action No.: 2:15-cv-00531-DSC
The Honorable David S. Cercone
Electronically filed.
JURY TRIAL DEMANDED
MOTION TO DISMISS AMENDED COUNTERCLAIMS AND THIRD-PARTY CLAIMS
OF DEFENDANTS 201 MARKETING AND MEDIA, LLC AND ROGER TASHJIAN,
OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT
AND NOW, come the PLAINTIFF, NUTRIMOST, LLC (“Nutrimost”) and the THIRD-
PARTY DEFENDANT, DR. RAY WISNIEWSKI (“Dr. Wisniewski”), by and through their
counsel, DANIEL M. TAYLOR, JR., KYLE T. McGEE, and MARGOLIS EDELSTEIN, and
JEFFREY R. OWEN and COOPER OWEN & RENNER, P.C., and, in accordance with and
pursuant to Fed. R.Civ.P. 12(b)(6) and 12(e), files this Motion to Dismiss Amended
Counterclaims and Third-Party Claims of Defendants 201 Marketing and Media, LLC (“201
Marketing”) and Roger Tashjian, or, in the alternative, Motion for More Definite Statement, as
follows:
1. On June 9, 2016, Defendants, 201 Marketing and Roger Tashjian (collectively
referred to herein as “the 201 Marketing Defendants”), filed counterclaims against Nutrimost,
including claims alleging tortious interference with contract, tortious interference with
prospective contractual relations, defamation, defamation per se, libel, libel per se, slander and
slander per se. See, Counter-Claim [Dkt. 96] at pages 37-50 (“Counterclaims”).
Case 2:15-cv-00531-DSC Document 104 Filed 08/10/16 Page 1 of 4
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2. On June 30, 2016, Nutrimost filed a Motion to Dismiss the 201 Marketing
Defendants’ Counterclaims, or, in the alternative, Motion for More Definite Statement. [Dkt. 98-
99].
3. In response to Nutrimost’s Motion to Dismiss the Counterclaims, the 201
Marketing Defendants amended their pleading, including their Counterclaims against Nutrimost
and their Third-Party Claims against Dr. Wisniewski. See, Amended Counter-Claims and Third-
Party Claims [Dkt. 101] at pages 37-78 (collectively, “Amended Counterclaims”).
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4. Specifically, the 201 Marketing Defendants have filed the following, nearly
identical, nine (9) legal claims against both Nutrimost and Dr. Wisniewski: (1) tortious
interference with contract; (2) tortious interference with business relationship; (3) tortious
interference with prospective contractual relations; (4) defamation; (5) defamation per se; (6)
libel; (7) libel per se; (8) slander; and (9) slander per se. See, Amended Counterclaims [Dkt.
101].
5. The 201 Marketing Defendants’ Amended Conterclaims do not allege any
actionable tort claim against Nutrimost and/or Dr. Wisniewski as a matter of law, and, therefore,
the Amended Counterclaims should be dismissed in their entirety, with prejudice. Fed.R.Civ.P.
12(b)(6).
6. In the alternative, and to the event this Honorable Court should determine that the
201 Marketing Defendants have sufficiently stated any claim in the Amended Counterclaims,
which contention is expressly denied, then Nutrimost and Dr. Wisniewski respectfully request
that this Honorable Court require that the 201 Marketing Defendants further amend their
counterclaims to provide sufficient factual detail from which Nutrimost and Dr. Wisniewski
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The Amended Counterclaims against Nutrimost and Amended Third-Party Claims against Dr.
Wisniewski, who is the President of Nutrimost, are based on the same factual averments. As
such, they will be discussed together and referred to collectively as “Amended Counterclaims.”
Case 2:15-cv-00531-DSC Document 104 Filed 08/10/16 Page 2 of 4
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could be expected to defend themselves from these Amended Counterclaims. Fed. R.Civ.P.
12(e).
7. For the reasons more fully stated in Nutrimost’s and Dr. Wisniewski’s
Memorandum of Law in Support of this Motion to Dismiss Amended Counterclaims and Third-
Party Claims of Defendants 201 Marketing and Media and Roger Tashjian, or, in the alternative,
Motion for More Definite Statement, which is filed contemporaneously herewith, adopted and
incorporated herein by reference, the Amended Counterclaims filed by the 201 Marketing
Defendants fail to state a claim upon which relief can be granted and, therefore, should be
dismissed. Fed. R.Civ.P. 12(b)(6).
WHEREFORE, the Plaintiff/Counterclaim Defendant, Nutrimost, LLC, and Third-Party
Defendant, Dr. Ray Wisniewski, respectfully request that this Honorable Court grant the instant
Motion, thereby dismissing the Amended Counterclaims and Third-Party Claims of 201
Marketing and Media, LLC and Roger Tashjian against them, with prejudice, in accordance with
and pursuant to Fed. R.Civ.P. 12(b)(6), or, in the alternative, order that a more definite statement
be filed in support of said Amended Counterclaims pursuant to Fed. R.Civ.P. 12(e).
JURY TRIAL DEMANDED
Date: August 10, 2016 Respectfully Submitted,
MARGOLIS EDELSTEIN
/s/ Daniel M. Taylor, Jr.____________
DANIEL M. TAYLOR, JR.
PA I.D. No. 62936
dtaylor@margolisedelstein.com
/s/ Kyle T. McGee_________________
KYLE T. McGEE
PA I.D. No. 205661
kmcgee@margolisedelstein.com
Case 2:15-cv-00531-DSC Document 104 Filed 08/10/16 Page 3 of 4
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525 William Penn Place
Suite 3300
Pittsburgh, PA 15219
(412) 281-4256
(412) 642-2380 (fax)
Counsel for Plaintiff, Nutrimost, LLC
COOPER OWEN & RENNER, P.C.
/s/ Jeffrey R. Owen__________________
JEFFREY R. OWEN
PA I.D. No. 45896
1 Priority Lane, #419
Murrysville, PA 15668
(412) 475-9696
jowen@corlaw.com
Counsel for Plaintiff, Nutrimost, LLC
Case 2:15-cv-00531-DSC Document 104 Filed 08/10/16 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NUTRIMOST, LLC,
Plaintiff,
v.
DR. HOWARD I. WERFEL et. al.,
Defendants.
Civil Action No.: 2:15-cv-00531-DSC
The Honorable David S. Cercone
Electronically filed.
JURY TRIAL DEMANDED
ORDER OF COURT
AND NOW, this _________ day of __________________, 2016, upon consideration of
the Motion to Dismiss Amended Counterclaims and Third-Party Claims of Defendants 201
Marketing and Media, LLC and Roger Tashjian, or, in the alternative, Motion for More
Definite Statement, filed by the Plaintiff/Counterclaim Defendant, Nutrimost, LLC, and the
Third-Party Defendant, Dr. Ray Wisniewski, along with any response thereto by 201 Marketing
and Media, LLC and/or Roger Tashjian, for good cause shown, said Motion is hereby
GRANTED.
It is, therefore, ORDERED that the Amended Counterclaims and Third-Party Claims
filed by Defendants, 201 Marketing and Media, LLC and Roger Tashjian against Nutrimost,
LLC and Dr. Ray Wisniewski [Dkt. 101 at pages 37-78] are hereby DISMISSED WITH
PREJUDICE in accordance with Fed. R.Civ.P. 12(b)(6). Dr. Ray Wisniewski is, therefore,
DISMISSED WITH PREJUDICE from this civil action.
JUDGMENT is hereby entered in favor of Nutrimost, LLC and Dr. Ray Wisniewski and
against 201 Marketing and Media, LLC and Roger Tashjian on said Amended Counterclaims and
Third Party Claims.
Case 2:15-cv-00531-DSC Document 104-1 Filed 08/10/16 Page 1 of 2
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BY THE COURT:
________________________________________
The Honorable David S. Cercone
United States District Judge
Western District of Pennsylvania
Case 2:15-cv-00531-DSC Document 104-1 Filed 08/10/16 Page 2 of 2
