U.S. v. UTAH MEDICAL PRODUCTS, INC. (D.Utah 2005)

BRUCE JENKINS, Senior District Judge

On June 20, 21 and 30, 2005, the Court conducted Final Pretrial Conference in the above-captioned proceeding. ( See Minute Entries, dated 6/20, 6/21, and 6/30/2005 (dkt. nos. 163 and 164).) Within the context of Pretrial, the court heard oral argument on Plaintiff's Motion to Dismiss Counterclaim, filed 04/01/2005 (dkt. no. 91) ("Pl.'s Mot."). Allan Gordus, Robin Doyle Smith and Tara Boland appeared on behalf of the plaintiff the United States of America ("United States/Plaintiff"); Cass W. Christenson, Daniel G. Jarcho and Daniel L. Russell appeared on behalf of the defendants Utah Medical Products, Inc., Kevin L. Cornwell and Ben D. Shirley (collectively "Utah Medical/Defendants").

The counterclaim asserts a cause of action for abuse of process, specifically, various alleged acts and omissions by employees of the Food and Drug Administration ("FDA") in connection with a series of administrative inspections of Utah Medical and in the commencement of this civil action. The asserted basis for jurisdiction of this counterclaim is the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680 (2000). The United States moved to dismiss this counterclaim pursuant to Rule 12(b)(1), Fed.R.Civ.P., for lack of subject-matter jurisdiction.

Based upon the evidence, the law, and the briefs and assertions of counsel, the Court hereby dismisses, without prejudice, the counterclaim for abuse of process. Prior to the filing of their counterclaim, Utah Medical did not exhaust their administrative remedies; and the counterclaim for abuse of process is permissive and noncompulsory. The Court need not reach the question of whether the counterclaim should be dismissed under the "discretionary function" exception to the Federal Tort Claims Act and expressly declines to do so.

Moreover, because an abuse of process determination would hinge on the merits of the United States' compliance action against Utah Medical, the assertion of an abuse of process counterclaim is premature.

For the above-stated reasons,

IT IS ORDERED that the United States' Motion to Dismiss Defendant Utah Medical's Counterclaim is GRANTED, and Defendant Utah Medical's counterclaim for abuse of process is hereby DISMISSED without prejudice.