BioTE Medical, LLC v. Jacobsen, 4:18-cv-00866

Plaintiff BioTE Medical, LLC provides hormone "Pellet Therapy" using a proprietary pellet formula and sued defendants on December 13, 2018.
BioTE alleges defendants (Evexias/Farmakeio and individuals) unlawfully manufacture and sell unapproved new drugs disguised as compounding, and engage in false/misleading advertising in violation of the Lanham Act and in a RICO enterprise.
Evexias/Farmakeio answered and asserted counterclaims and third-party claims; BioTE and third-party defendants moved for summary judgment on those counterclaims (Dkt. #211).
In response Evexias/Farmakeio abandoned its tortious-interference claims and certain alleged comments by third parties.
The Court reviewed the summary-judgment submissions under Rule 56 standards and found disputed material facts remained.
The Court denied BioTE and third-party defendants’ motion for summary judgment as to Evexias/Farmakeio’s counterclaims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BioTE is entitled to summary judgment on Evexias/Farmakeio’s counterclaims	BioTE argued there is no genuine dispute of material fact and it established entitlement to judgment as a matter of law	Evexias/Farmakeio opposed, arguing material factual disputes exist and withdrew some claims	Denied — Court found BioTE did not carry its burden; genuine issues of material fact remain
Effect of Evexias/Farmakeio abandoning tortious-interference allegations	BioTE relied on claim narrowing to support summary judgment	Evexias conceded those specific claims but maintained other counterclaims	Court noted abandonment but still denied summary judgment on the remaining counterclaims
Whether movant satisfied the burden when opposing party bears proof	BioTE contended absence of evidence defeated counterclaims	Evexias argued it has sufficient evidence to survive summary judgment	Court applied Celotex framework and concluded BioTE did not establish absence of any genuine issue for trial
Whether credibility or weight of evidence can be resolved on summary judgment	BioTE implied the record supported resolution in its favor	Evexias argued credibility issues and factual disputes preclude summary disposition	Court declined to weigh credibility and found factual disputes for the jury/trier of fact

Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (movant’s and nonmovant’s burdens on summary judgment)
Anderson v. Liberty Lobby, 477 U.S. 242 (U.S. 1986) (definition of genuine dispute and need for probative evidence)
Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598 (5th Cir. 1981) (court must resolve doubts for nonmovant)
Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir. 1986) (movant bearing the ultimate burden must prove all essential elements beyond peradventure)
Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000) (nonmovant’s response obligations to a summary-judgment motion)
In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436 (5th Cir. 1982) (requirement for significant probative evidence from nonmovant)
Ferguson v. Nat’l Broad. Co., 584 F.2d 111 (5th Cir. 1978) (evidence required to defeat summary judgment)
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir. 2007) (court must refrain from credibility determinations at summary judgment)