Opinion
20-56158
09-13-2022
NEXUS PHARMACEUTICALS, INC., Plaintiff-Appellant, v. LEITERS, INC.; DENVER SOLUTIONS LLC, DBA Leiters Health, Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted October 18, 2021 Pasadena, California
Appeal from the United States District Court No. 2:20-cv-07328-CJC-JDE for the Central District of California Cormac J. Carney, District Judge, Presiding
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.
MEMORANDUM
Nexus Pharmaceuticals, Inc. ("Nexus") claims that Leiters, Inc. is violating the Food, Drug, and Cosmetic Act ("FDCA") by compounding an ephedrine sulfate drug that is "essentially a copy," 21 U.S.C. § 353b(a)(5), of Nexus's FDA approved Emerphed. According to Nexus, this purported violation of the FDCA in turn violates various states' laws prohibiting unfair competition. For the reasons set forth in Nexus Pharmaceuticals, Inc. v. Central Admixture Pharmacy Services, Inc., No. 20-56227, __F.4th __(9th Cir. September 13, 2022), the district court's dismissal of the complaint is affirmed. Nexus's suit is in substance an attempt to enforce provisions of the FDCA. Such an action must be by and in the name of the United States. See 21 U.S.C. § 337; PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010) (citing Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 n.4 (2001)). Accordingly, Nexus's suit is barred.
The order of the district court is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.