lack of personal jurisdiction

By Memorandum Opinion entered by The Honorable Maryellen Noreika in ANI Pharmaceuticals, Inc. v. Method Pharmaceuticals, LLC et al., Civil Action No. 17-1097-MN (D.Del. January 11, 2019), the Court granted-in-part Defendants’ Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(2) or, in the Alternative, Transfer Venue to the extent that it sought to transfer the action from the District of Delaware to the Northern District of Texas. The Court denied the portion of Defendants’ Motion that sought dismissal under Federal Rule of Civil Procedure 12(b)(2) finding that the question of personal jurisdiction over defendant Method presented a close call but the Court lacked personal jurisdiction over defendant Tucker. Id. at *12. The Court explained that it would exercise its discretion in transferring the case regardless of the existence of personal jurisdiction over defendant Method because “judicial economy favors the prosecution of a case in its entirety, and that weighs in favor of transferring the case to the Northern District of Texas where there is no question of jurisdiction.” Id.

Ultimately, in analyzing the twelve Jumara factors, the Court found that eight factors weighed in favor of transfer while the remaining four factors were neutral. Id. at *12-19. The Court noted that, although “a plaintiff’s choice of venue is generally provided paramount consideration under Jumara, the Court’s inability to assert personal jurisdiction over one of the defendants undermine[d] that deference here. Id. at *19.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Leonard P. Stark in Biomerieux, S.A. et al. v. Hologic, Inc. et al., Civil Action 18-21-LPS (D.Del. September 26, 2018), the Court denied the motion of defendant Grifols S.A. (“GSA”) to dismiss the patent infringement claims asserted against it for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). In their complaint, plaintiffs alleged that three of the Procleix® branded test products of GSA and defendant Grifols Diagnostic Solutions, Inc (“GDS”) infringe two U.S. patents owned by plaintiffs. Id. at *1. GSA is a Spanish corporation with a principal place of business in Barcelona, Spain. In its motion to dismiss, GSA claimed that there was no basis for personal jurisdiction over it in Delaware and submitted declarations in support of its lack of jurisdiction claims. Id. Plaintiffs pointed to public documents that they believed showed sufficient “minimum contacts” with Delaware by GSA that established a prima facie showing of jurisdiction. Id. at *3-6. The Court agreed with Plaintiffs and concluded that Plaintiffs had made a prima facie showing of sufficient minimum contacts with Delaware by GSA that justified the exercise of personal jurisdiction over GSA. Id. at *6. Plaintiffs also persuaded the Court that Rule 4(k)(2) of the Federal Rules of Civil Procedure provided an additional basis for finding personal jurisdiction in the case. Id.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Leonard P. Stark in Perlight Solar Co. Ltd v. Perlight Sales North America LLC, et al., Civil Action No. 14-331-LPS (D.Del., September 18, 2015), the Court granted Defendants’ motion to dismiss Plaintiff’s Complaint alleging trademark infringement against Defendants for lack of personal jurisdiction as to Defendants Perlight Sales North America LLC, Zebra Energy LLC, Sunny Liu and Gideon Needleman.  The Court also denied Plaintiff’s request for jurisdictional discovery after finding that Plaintiff did not meet its burden of showing that its claim was not “clearly frivolous.”  See id. at 9-10.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in Novartis Pharmaceuticals Corp., et al. v. Zydus Noveltech Inc., Civil Action No. 14-1104-RGA (D.Del., August 7, 2015), the Court granted Defendant Zydus Noveltech Inc.’s motion to dismiss based on lack of personal jurisdiction.

Plaintiffs did not dispute the lack of general jurisdiction over Defendant in Delaware.  Id. at 9.  However, Plaintiffs argued that Delaware had specific jurisdiction over Defendant for two reasons:  (1) Defendant directed its notice of ANDA filing to Novartis Pharmaceuticals, a Delaware corporation; and (2) Defendant would eventually, if authorized by the FDA, sells its generic product in Delaware.  Id. at 10.  Defendant disputed jurisdiction in Delaware arguing, among other things, that sending a notice letter to Novartis Pharmaceuticals, a Delaware corporation, at its offices in New Jersey was not sufficient to establish jurisdiction over it in Delaware.  Id.

The Court agreed that Defendant’s activities had not been purposefully directed at Delaware such that the Court could exercise specific jurisdiction over Defendant.  Id. at 11.  The Court reasoned that Defendant does not conduct business in Delaware, has not registered to do business in Delaware, does not have an agent to accept process in Delaware, has not previously litigated in Delaware at all, has no property, staff or offices in Delaware, and no work related to preparing the ANDA or product was conducted in Delaware.  Id. at 11-12.  The Court noted that, although Defendant probably anticipated being sued in Delaware, Defendant’s anticipation by itself was not enough for specific jurisdiction.  Id.  The Court also noted that “[s]pecific jurisdiction cannot be exercised merely because an ANDA notice letter was sent to a Delaware corporation, in another state, because to do so would offend traditional notions of fair play and substantial justice.”  Id. at 12.

A copy of the Memorandum Opinion is attached.

The takeaway from this case is that, in order for personal jurisdiction in the District of Delaware to exist over a non-resident defendant in the ANDA context, there must be more evidence of minimum contacts with Delaware than simply the filing by the non-resident defendant of an ANDA directed to a Delaware corporation.  At the very least, the non-resident defendant must have actually sent the notice of the ANDA filing to the Delaware corporation in Delaware (as opposed to some out of state location), conduct some business in Delaware, be registered to do business in Delaware, and/or have some other minimum contacts with Delaware that do not offend traditional notions of fair play and substantial justice.

By Memorandum Opinion entered by The Honorable Sue L. Robinson in Intellectual Ventures I LLC, et al. v. Ricoh Company, Ltd., et al., Civil Action No. 13-474-SLR (D.Del., September 12, 2014), the Court granted defendants’ motion to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(2), based on lack of personal jurisdiction over defendant Ricoh Company, Ltd. (“RCL”).

Plaintiffs asserted two bases for personal jurisdiction over RCL under Delaware’s long-arm statute: (1) general jurisdiction under section (c)(4) based on RCL’s systematic presence in Delaware as the head of a “global network;” and (2) “dual jurisdiction” under sections (c)(1) and (c)(4) based on RCL’s intentional injection of products into the “stream of commerce” using established business channels. See id. at 6. In light of the U.S. Supreme Court’s holding earlier this year in Daimler AG v. Bauman, 11-965, 2014 WL 113486, at *10 (January 14, 2014), the District Court found unavailing Plaintiff’s argument that general jurisdiction was appropriate based on RCL’s relationship with its wholly-owned subsidiaries. See id. at 7. The Court also found that there was no evidence in the record to support a finding of dual jurisdiction. See id. at 8. Because Plaintiffs did not establish personal jurisdiction over RCL under Delaware’s long-arm statute, the Court noted that it did not need to address whether the exertion of jurisdiction over RCL would satisfy the Due Process Clause. See id.

A copy of the Memorandum Opinion is attached.

The take away from this Opinion is that, when drafting Complaints where you have defendants that are entities that are not Delaware corporations, parties need to be mindful to be specific enough in their allegations of jurisdiction that they set forth and establish the appropriate bases for personal jurisdiction over the foreign entity under the Delaware long-arm statute and why the exercise of such jurisdiction comports with the Due Process Clause. Plaintiffs need to be prepared, if there is a jurisdictional challenge, to present sworn affidavits or other competent evidence to meet their burden of establishing with reasonable particularity that sufficient “minimum contacts” have occurred between the foreign defendant and Delaware to support personal jurisdiction in the District of Delaware.