Thakur v. Betzig et al

Filing 32

MEMORANDUM OPINION AND ORDER: Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court ORDERS the following: (1) The Plaintiffs alternative motion to sever (Doc. 29 ) and motion to transfer venue (Docs. 20 , 29 ) are GRANTED. (2) The Clerk of Court is DIRECTED to sever Defendant Howard Hughes Medical Institute into a separate civil case. All documents shall be copied to the new civil case. (3) Defendants' motion to dismiss for lack of personal jurisdicti on (Doc. 12) is DENIED as moot. (4) Defendants' motion to dismiss for failure to state a claim (Doc. 12 ) remains pending for the transfer courts. A separate order will be entered directing the transfer of each case after the new case is fully docketed. Signed by Honorable Judge Terry F. Moorer on 10/17/2017. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

MRINAL THAKUR,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ERIC BETZIG, et. al.,
Defendants,

CASE NO. 3:16-cv-811-TFM
[wo]

MEMORANDUM OPINION AND ORDER
This action is assigned to the undersigned magistrate judge to conduct all proceedings
and order entry of judgment by consent of all the parties pursuant to 28 U.S.C. § 636(c). See
Docs. 24, 25. Now pending before the Court is Defendants’ Motion to Dismiss and brief in
support (Docs. 12-13, filed December 5, 2016).

After a careful review of all the written

pleadings, motions, responses, and replies, the Court GRANTS Plaintiff’s alternative requests
(Docs. 20 and 29) that the case be severed and transferred to the more appropriate venues in the
Northern District of California and District of Maryland pursuant to 28 U.S.C. § 1404(a). The
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) (Doc. 12) is DENIED as moot. Any
remaining motions including the remaining portion of the motion to dismiss for 12(b)(6) (Doc.
12) remain pending for the determination of the transferee courts.
I.

JURISDICTION

Plaintiff asserts claims pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). Specifically,
that the citizenship of all parties is diverse and the amount in controversy exceeds $75,000.00.
He asserts state law claims for (1) fraud and suppression, (2) Negligence, (3) Wantonness, (4)
Negligent and/or Wanton Training, Supervision, and Monitoring, (5) Unjust Enrichment, and (6)
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Conversion. See Doc. 1. No party contests subject matter and adequate support exists for its
determination. Defendants all contest personal jurisdiction and is the basis for the subject
motion. See Docs. 12-13.
II.

PARTIES AND BACKGROUND

Plaintiff is Mrinal Thakur (“Thakur” or “Plaintiff”) is an individual who resides in
Auburn, Alabama. Doc. 1 at ¶ 1. Plaintiff is a professor in the Department of Mechanical
Engineering at Auburn University and is the Director of Photonic Materials Research Laboratory
at the university. Id. at ¶ 7. Plaintiff is the co-inventor of electrically conductive polymers and
has several patents and publications related to nonconjugated conductive polymers. Id. On
October 7, 2016, Plaintiff filed suit in this court alleging that Defendants Eric Betzig (“Betzig”),
Howard Hughes Medical Institute (“HHMI”), William E. Moerner (“Moerner”), and Stanford
University (“Stanford”) – collectively “Defendants” – wrongfully plagiarized, misappropriated,
stole, and otherwise utilized Plaintiff’s work product to obtain the 2014 Nobel Prize in
Chemistry for the development of super-resolution fluorescence microscopy. See id. generally.
Plaintiff asserts claims for (1) fraud and suppression, (2) negligence, (3) wantonness, (4)
negligent and/or wanton training, supervision and monitoring, (5) unjust enrichment, and (6)
conversion. Id. at ¶¶ 13-38.
Defendants Betzig and Moerner received the 2014 Nobel Prize in Chemistry. Betzig
resides in Ashburn, Virginia and HHMI “employed Defendant Betzig as a scientist at its Jenelia
Research Campus and reaped the benefits of Defendant Betzig’s actions and conduct.” Doc. 1 at
¶¶ 2-3. HHMI is a corporation with its principal place of business in Chevy Chase, Maryland.
Id. Moerner resides in Palo Alto, California and Stanford University “employed Defendant
Moerner as a scientist and reaped the benefits of his actions and conduct.” Doc. 1 at ¶¶ 4-5.

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Stanford is an educational institution doing business as a corporation whose principal place of
business is Palo Alto, California. Id.
The 2014 Nobel Prize in Chemistry was awarded to Eric Betzig, Stefan W. Hell
and William E. Moerner for discovery of “Super-Resolved Fluorescence
Microscopy”. The resolution in this microscopy transitions beyond standard limits
(Abbe's limit). Therefore, smaller structures within a fluorescent organic material
can be detected.
A major approach used in this microscopy that utilizes lasers with short-duration
(femtosecond) pulses, is based on third order (nonlinear) optical effects in organic
materials. The earliest detailed third order optical studies on organic crystals were
initiated by Professor Mrinal Thakur and colleagues back in 1985 - more than ten
years earlier than the first report of a successful demonstration of super-resolved
microscopy by the 2014 Nobel recipients.
The central correlation governing the line-width (resolution) controllably
decreasing with laser light intensity is given in equation 3 of the 2014 Nobel
document preserved at the Nobel Foundation website. This equation shows that
detectable radiation (line-width) can go beyond Abbe's limit if higher light
intensity is used. This equation is based on saturation dynamics in third order
optics, in particular in this case, involving fluorescence of organic dye molecules
(stimulated emission depletion). A derivation of this equation using the theory and
experiments previously published by Thakur et al. has been recently published in
the Journal of Macrornolecular Science, Part A, Pure and Applied Chemistry.
This is a refereed journal in which scientific reports are not accepted for
publication without expert reviews.
It is important to note that no derivation of equation 3 was given by the Nobel
Prize recipients in their published articles. In some of their publications other
equations based on kinetics studies have been developed but those are different
and inaccurate. The equation 3 as given in the Nobel document is correct and can
only be derived using the theoretical mode' (phase-space filling) for nonlinear
Optics in organic materials as developed and experimentally verified by Professor
Thakur and colleagues. While there are other approaches discussed in the
document for achieving super-resolution, equation 3 provides the only systematic
and reliable procedure to gain super-resolution by increasing laser light intensity
at selected wavelengths. Therefore, understanding the origin of this equation is
critical. As given in Professor Thakur's recent article, this equation can be derived
in a fairly straight-forward manner using the basic equation in phase-space filling
model on nonlinear optics published about 10 years earlier than the publications
on demonstration of super-resolution.
Professor Thakur and colleagues published and presented hundreds of articles on
experiments and theory of nonlinear optical properties of organic crystals and
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films, in highly reputed journals and conferences (e.g. Physical Review Letters,
Applied Physics Letters, Macromolecules, Journal of Materials Science, MRS
Proceedings and others) beginning on around 1985. Thus, the nonlinear optical
coefficients, excited-state lifetimes and the detailed saturation dynamics and their
quantitative interpretations have all been established prior to the works on superresolved fluorescence microscopy. This microscopy would not be possible to
demonstrate without the in-depth knowledgebase established by Professor Thakur
and colleagues.
Doc. 1 at ¶¶ 8-12.
The crux of the allegations against the individual defendants (Betzig and Moerner) rests
on the assertion that they had a duty to represent and/or disclose that they utilized Plaintiff’s
work product in the development of super-resolution fluorescence microscopy – which
ultimately enabled them to receive the Nobel Prize. Rather, Plaintiff alleges Betzig and Moerner
falsely represented to the Nobel Prize Committee that no one else’s work product was utilized in
developing their research and specifically suppressed that Plaintiff’s work product was utilized.
Id. at ¶¶ 14-18 (Count 1 – Fraud and Suppression). Moreover, Betzig and Moerner had a duty to
reveal they utilized Thakur’s work product and breached that duty by concealing their use of the
work.

Id. at ¶¶ 19-22 (Count 2 – Negligence).

Finally, Betzig and Moerner wantonly,

recklessly, knowingly, and purposefully misappropriate Plaintiff’s work product. Id. at ¶¶ 23-25
(Count 3 – Wantonness).
The allegations against the corporate defendants (Stanford and HHMI) stem from their
employment and supervision of the individual defendants. Specifically, HHMI and Stanford
negligently and/or wantonly failed to properly train, supervise, and/or monitor Betzig and
Moerner. Id. at ¶¶ 26-29 (Count 4 – Negligent and/or Wanton Training, Supervision and
Monitoring). As a result, they inequitably benefitted from the individual defendants’ actions. Id.
at ¶¶ 30-34.

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Finally, all Defendants converted for their own use – illegally and unlawfully – work
product created and developed by Plaintiff which was his intellectual property. The conversion
was wanton and done without the knowledge or consent of Thakur. Id. at ¶¶ 35-38. For
damages, Plaintiff seeks compensatory and punitive damages plus costs.
On December 5, 2016, Defendants filed their collective Motion to Dismiss for Lack of
Jurisdiction and for Failure to State a Claim. Docs. 12-13. They assert that (a) the Court lacks
personal jurisdiction over Defendants, (b) the Complaint fails to comply with minimal pleading
standards, (c) Counts 1-2 of the complaint fail to allege that he relied on any alleged
misrepresentation, and (d) the wantonness, unjust enrichment, and conversion claims are all
displaced by the Alabama Trade Secrets Act.
On December 29, 2016, Plaintiff submitted his response in opposition, alleging that this
Court does have personal jurisdiction, or alternatively, if it does not, can transfer the case to an
appropriate venue where jurisdiction will not be a contested issue. Doc. 20. If transferred then
the remaining issues would be left for resolution by the gaining court. Plaintiff specifically
requests that the case be transferred to the District Court of Maryland if the Court determines that
it lacks personal jurisdiction. Id. at p. 7.
Defendants filed a collective reply on January 17, 2017, alleging a change in venue
would not resolve jurisdictional issues. Doc. 23. Moreover, they further argue the District Court
in Maryland would not have jurisdiction over Defendants Betzig, Moerner, or Stanford. And,
even if it did, the transfer would not be appropriate without first resolving the motion to dismiss
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
On June 5, 2017, this Court ordered a supplemental briefing on alternative federal
locations.

Doc. 26.

In response, Plaintiff avers that Maryland or California would be

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appropriate.

Doc. 27.

Plaintiff argues Maryland’s long-arm statute reaches Moerner and

Stanford because both Defendants transacted business and performed work and service in
Maryland by collaborating with Defendants HHMI and Betzig located and employed in
Maryland.

Id. at p. 6.

Plaintiff further alleges that because at least a part of the fraud,

suppression, and negligence took place in Maryland, this “caused tortious injury by act or
omission in Maryland.” Id. In the alternative, Plaintiff California also provides an appropriate
jurisdiction and venue. Id. at p. 7. Specifically, Moerner and Stanford are located and work
there while Betzig worked in conjunction with those defendants. Finally HHMI received the
benefits of its employee. Id. at p. 7-9.
Defendants also filed a supplemental brief in response to the Court’s Order. However,
rather than file any alternative arguments on venue as the Court requested, Defendants put all
their eggs in one basket and argue that “there is no single, alternate location that would have
personal jurisdiction over all four defendants…[t]herefore, the only proper course is for the
Court to dismiss the Complaint. Doc. 28. Defendants further allege that even if a court was able
to exercise personal jurisdiction over Defendants, transfer is still unwarranted due to Plaintiff
failing to state a claim upon which relief may be granted. Id.
On June 16, 2017, Plaintiff filed his response to Defendants’ supplemental brief. Doc.
29. Plaintiff additionally notes that Defendant Betzig accepted a position with the University of
California at Berkley for summer 2017. Plaintiff attaches an exhibit which contains a Berkeley
Press Release dated September 27, 2016 which states “Nobel Prize-winning physicist Eric
Betzig…will join the UC Berkeley faculty in the summer of 2017. Concurrent with [his] hire at
UC Berkeley, Betzig and Ji will have joint appointments and research programs at Lawrence
Berkley National Laboratory (Berkeley Lab) as faculty scientists.” Id., Exhibit 1. Finally, as yet

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another alternative, Plaintiff states that if this Court cannot find a single proper venue, the case
could be severed and transferred accordingly. Id. t p. 2.
Defendants filed a Reply to Plaintiff’s Supplemental Brief on an Alternative Federal
Forum on June 16, 2017, alleging that that no single, alternate location has personal jurisdiction
over all four Defendants. Doc. 30. Defendants allege that Plaintiff’s argument is flawed because
it relies on the supposed collaboration of Moerner and Betzig in the discoveries which lead to the
awarding of the Nobel Prize. Id. Defendants allege that the Nobel Committee expressly notes
that Betzig’s and Moerner’s contributions were independent of one another and asks the Court to
take judicial notice of the article submitted as part of this reply. Id.
III.
A.

STANDARDS OF REVIEW

Motion to Dismiss for Lack of Jurisdiction – Fed. R. Civ. P. 12(b)(2)
A plaintiff need only establish a prima facie case of jurisdiction, and may do so by

presenting evidence sufficient to defeat a motion for judgment as a matter of law. Delong v.
Washington Mills, 840 F.2d 843, 845 (11th Cir. 1998); South Alabama Pigs v. Farmer Feeders,
Inc., 305 F. Supp.2d 1252 (M.D. Ala. 2004) (citing Perry v. Household Retail Services, Inc., 953
F. Supp. 1378, 1380 (M.D. Ala. 1996)). “The burden for overcoming a motion for judgment as a
matter of law is the same as that for overcoming a motion for summary judgment; legally
sufficient evidence must exist to create a genuine issue of material fact.” Id. (citing Cleote Corp.
v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265; Everett v. Napper, 833 F.2d 1507,
1510 (11th Cir. 1987)).
When a nonresident defendant challenges personal jurisdiction, the plaintiff must
establish personal jurisdiction that comports with (1) the State’s long-arm statute and (2) the
requirements of the due-process clause of the Fourteenth Amendment. See Alabama

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Waterproofing Co., Inc. v. Hanby, 431 So.2d. 141, 145 (Ala. 1983); Olivier v. Merritt Dredging
Co., Inc., 979 F.2d 827, 830 (11th Cir. 1992); see also Ala. R. Civ. P. 4.2(b) (current version of
statute referenced by courts). Alabama’s long-arm statute authorizes personal jurisdiction to the
fullest extent permitted by the United States Constitution. See Sloss Indus. Corp. v. Eurisol, 488
F.3d 922, 925 (11th Cir. 2007); Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d
1351, 1355-56 (11th Cir. 2000); Am. Home. Assur. Co. v. Weaver Aggregate Transp., Inc., 719
F. Supp. 2d 1333, 1336 (M.D. Ala. 2010). Therefore, a plaintiff may establish the court’s
personal jurisdiction over a defendant by showing the requirements of due process have been
met. Oliver, 979 F.2d at 830; Morris v. SSE, Inc., 843 F.2d 489, 494 n.3 (11th Cir. 1988).
Due process first requires that the defendant perform “some act by which [it]
purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws” - that is “minimum contacts” with the forum
state. Morris, 843 F.2d at 492 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct.
2174, 2184, 85 L.Ed.2d 528 (1985)); South Alabama Pigs, 305 F.Supp.2d at 1257 (citations
omitted). Second, the exercise of personal jurisdiction over the defendant must not offend the
“traditional notions of fair play and substantial justice.” Morris, 843 F.2d at 492 (quoting Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed 95 (1945)); South
Alabama Pigs, 305 F.Supp.2d at 1257 (citations omitted). Both conditions must be satisfied to
establish personal jurisdiction over a defendant.
Two types of personal jurisdiction exist: specific and general. Specific jurisdiction is
based on the party’s contacts with the forum state that are related to the cause of
action. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8, 104 S.Ct.
1868, 1872, 80 L.Ed.2d 404 (1984). General personal jurisdiction arises from a party’s contacts

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with the forum state that are unrelated to the litigation. Thomas v. Mitsubishi Motor North
America, Inc., 436 F.Supp.2d 1250, 1253 (M.D. Ala. 2006) (citing Helicopteros Nacionales de
Colombia, 466 U.S. at 414 n.9, 104 S.Ct. at 1872). “The due process requirements for general
personal jurisdiction are more stringent than for specific personal jurisdiction, and require a
showing of continuous and systematic general business contacts between the defendant and
forum state.” Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11thCir.
2000), cert. denied, 534 U.S. 827, 122 S.Ct. 68, 151 L.Ed.2d 34 (2001).
B.

Motion to Dismiss for Failure to State a Claim – Fed. R. Civ. P. 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Gilmore,

125 F. Supp.2d at 471. To survive a motion to dismiss for failure to state a claim, the plaintiff
must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In
considering a defendant’s motion to dismiss, the “court must view the complaint in the light most
favorable to the plaintiff and accept all the plaintiff’s well-pleaded facts as true.” Am. United
Life Ins. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007) (citing St. Joseph’s Hosp. Inc. v.
Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir. 1986)). In other words, in deciding a 12(b)(6)
motion to dismiss, the court will accept the petitioner’s allegations as true. Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed.2d 59 (1984); Ellis v. General Motors
Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998); Roberts v. Florida Power & Light Co.,
146 F.3d 1305, 1307 (11th Cir. 1998) (citing Lopez v. First Union National Bank of Florida, 129
F.3d 1186, 1189 (11th Cir. 1997)). However, “[c]onclusory allegations, unwarranted deductions
of facts or legal conclusions masquerading as facts will not prevent dismissal.” Jackson v.
BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004) (quoting Oxford Asset Mgmt., Ltd.

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v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)); see also Associated Builders, Inc. v. Alabama
Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (conclusory allegations and unwarranted deductions
of fact are not admitted as true).
Thus, a complaint should be dismissed “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558, 127 S. Ct. at
1966. Further, “this basic deficiency should ... be exposed at the point of minimum expenditure
of time and money by the parties and the court.” Id. (citations omitted). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555, 127 S. Ct. at 1964-65 (citations omitted). Factual allegations must be enough to
raise a right to relief above the speculative level. Id. Thus, it does not require a heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.
Id. at 570, 127 S. Ct. at 1974.

It is not enough that the pleadings merely “le[ave] open the

possibility that the plaintiff might later establish some set of undisclosed facts to support
recovery.”

Id. at 561, 127 S. Ct. at 1968 (internal quotation and alteration omitted).

Consequently, the threshold for a complaint to survive a motion to dismiss is “exceedingly low.”
Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir. 1985).
C.

Transfer of Venue
If the Court concludes that venue is not proper, the Court can transfer the case under 28

U.S.C. § 1406(a) to a federal district where it could have been brought if it would be “in the
interest of justice,” See 28 U.S.C. § 1406(a). Specifically, 28 U.S.C. § 1404(a) states that “for
the convenience of parties and witnesses, in the interest of justice, a district court may transfer

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any civil action to any other district or division where it might have been brought.” See also
Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 655 (11th Cir. 1993) (citing § 1401(a)).
“District courts have broad discretion in deciding whether to transfer an action to a more
convenient forum.” A.J. Taft Coal Co. v. Barnhart, 291 F.Supp.2d 1290, 1307 (N.D. Ala. 2003)
(citation omitted); see also England v. ITT Thompson Industries, Inc., 856 F.2d 1518, 1520 (11th
Cir. 1988) (“Trial judges are permitted a broad discretion in weighing the conflicting arguments
as to venue”).
IV.

DISCUSSION AND ANALYSIS

While the Supreme Court stated that questions of personal jurisdiction should generally
be decided before questions of venue, “when there is a sound prudential justification for doing
so, we conclude that a court may reverse the normal order of considering personal jurisdiction
and venue.” Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S. Ct. 2710, 61 L. Ed.
2d 464 (1979). Thus, “[i]f a venue issue renders the personal jurisdiction problem moot, thus
avoiding the need to address constitutional questions, consideration of venue before personal
jurisdiction is appropriate.” United States ex rel. Norshield Corp. v. E.C. Scarborough, 620 F.
Supp. 2d 1292, 1294 (M.D. Ala. 2009) (citing Corbello v. DeVito, Civ. Act. No. 1:07-cv-985,
2008 U.S. Dist. LEXIS 40336, 2008 WL 2097435, *2 (E.D. Tex. May 19, 2008)).
Defendants continued to collectively argue that only dismissal would be appropriate
because there is no single forum where Plaintiff could pursue his claims. However, Plaintiff is
correct in asserting that in instances where claims may be time barred, that transfer is favored
over dismissal. In the case at hand, dismissal may prejudice the plaintiff’s ability to maintain
this suit. Thus, the interests of justice weigh in favor of severing and transferring this case to
proper venues. Under 28 U.S.C. § 1406(a), “[t]he district court of a district in which is filed a

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case laying venue in the wrong division or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could have been brought.” See 28
U.S.C. § 1406(a).
The Court acknowledges that this case presents some complications because of the
multiple geographic locations involved.

Specifically, Moerner is an individual residing in

California, Stanford is a non-profit institution located in California. Betzig is an individual
residing in Virginia, but also seemingly has accepted a position with UC Berkeley for the
summer of 2017.

Finally, HHMI is a non-profit company incorporated in Delaware,

headquartered in Maryland, and has a research facility located in Ashburn, Virginia.
Plaintiff argues that Maryland and California are both appropriate jurisdictions. Plaintiff
seemingly favors Maryland, but only supports that argument by stating that “at least part of the
fraud, suppression and negligence alleged against Defendants took place in Maryland.” See Doc.
27 at p. 6.
A.

California
Defendants Stanford and Moerner are physically located in the Northern District of

California and therefore are subject to its jurisdiction. Thus, the Court need only look to
Defendants Betzig and HHMI.
Defendant Betzig also could be subjected to jurisdiction in California. The Court need
not determine whether specific personal jurisdiction exists in this venue because it is clear that
general personal jurisdiction currently exists because Betzig has sufficient contacts with the state
to satisfy California’s long-arm statute. California’s long-arm statute authorizes the exercise of
personal jurisdiction on any basis not inconsistent with the state or federal constitution. Cal.
Code. Civ. P. § 410.10. Betzig has “substantial, continuous, and systematic” contacts with the

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state through his acceptance with a position with UC Berkeley. See Doc. 29, Ex. 1; see also
http://physics.berkeley.edu/people/faculty/eric-betzig (specifying Betzig as a member of
Berkeley’s faculty).1
Defendants argues his new employment would not subject Betzig to jurisdiction because
it the Court should only look to the facts as they existed at the time of the Complaint having been
filed.

Defendants argue Betzig’s contact with California “is irrelevant to the personal

jurisdiction analysis…[and] the only relevant contacts are contacts existing at the time of the
Complaint is filed.” The Court need not address this argument though because Betzig’s contacts
with Berkley and his acceptance of employment occurred before the filing of this lawsuit. The
complaint was filed on October 7, 2016. See Doc. 1. It is clear from the Berkeley press release
that no later than September 27, 2016, Defendant Betzig accepted employment with Berkeley
prior to the filing of this lawsuit.
B.

Maryland
It is clear that because HHMI is headquartered in Chevy Chase, Maryland that it would

be subject to jurisdiction in the Maryland District Court. Therefore, the Court looks to Betzig,
Moerner, and Stanford. Beyond Plaintiff’s unsupported statement that some aspects of the
collective fraud and suppression took place there, it is not clear on the current record how
Plaintiff seeks to establish jurisdiction over those three defendants in Maryland.
Though the Court is required to view facts in the light most favorable to the Plaintiff, the
record before the Court is not clearly established that the remaining defendants have sufficient
contacts with Maryland to satisfy the Maryland long-arm statute. See Md. Code Ann., Cts. &
Jud. Proc. § 6-103. Defendant Betzig at the time lived and worked in Virginia. The fact HHMI
1

It is not clear from the record whether Betzig currently resides there, but that is
unnecessary for the Court’s determination.
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is headquartered in Maryland is not enough to clearly establish that the torts alleged against him
occurred in the state of Maryland. Rather, it would seem they would have occurred in Virginia.
C.

Virginia
Defendant Betzig lived in Ashburn, Virginia at the time of the alleged claims. As such, it

is clear he would be subject to jurisdiction there. Further, HHMI acknowledges it has a research
facility in Ashburn, Virginia. Thus, it has continuous and systematic contacts with the state such
that jurisdiction is established. See Va. Code. Ann. § 8.01-328.1. Therefore, the Eastern District
of Virginia is an appropriate venue for these two defendants. Thus, the question is whether
Stanford or Moerner can be subject to jurisdiction in Virginia. As with Maryland, the sole
argument on this jurisdiction is that a portion of the alleged collaboration may have occurred
there. However, as before, the Court is not convinced based on the current record that the
remaining two defendants have sufficient contacts with Virginia to satisfy the Virginia long-arm
statute.
D.

Severance of parties
As previously noted, the geographic disparities and the lack of clear evidence make it

difficult to determine that any one venue is appropriate. However, the Court does find that
severance is also an appropriate course of action. While that would establish two cases, it does
satisfy jurisdictional and venue concerns while also addressing the “interests of justice” needed
to overcome issues on statute of limitations. As such, the Court is left with two options. First,
the Court could sever HHMI and send the claims against it to the District Court of Maryland
while sending the other three defendants (Stanford, Moerner, and Betzig) and those claims to the
Northern District of California. Second, the Court could sever Betzig and HHMI and send the
claims against those defendants to the Eastern District of Virginia while sending the claims

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against Stanford and Moerner to the Northern District of California. Ultimately, neither solution
is perfect, but allow for the Plaintiff to pursue his claims in an appropriate forum while also
providing a fair venue to the respective defendants.
Ultimately, given the nature of the claims and considering the current location of the
Defendants, the Court finds that the first option is the most palatable especially as Defendant
Betzig is now residing in California and is no longer in Virginia. Thus, the Court will sever
Defendant HHMI and transfer that portion of the case to the District of Maryland.

The

remaining Defendants the claims will be transferred to the Northern District of California.
V.

CONCLUSION

As this Court has already determined that a transfer of venue is appropriate, the ruling on
the 12(b)(6) motion to dismiss is appropriately deferred for the consideration by the gaining
courts, such that the newly assigned court shall determine whether dismissal or an amended
complaint is necessary or appropriate. Further, the motion to dismiss for personal jurisdiction
under Rule 12(b)(2) is rendered moot by the transfer.
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court
ORDERS the following:
(1) The Plaintiff’s alternative motion to sever (Doc. 29) and motion to transfer venue
(Docs. 20, 29) are GRANTED.
(2) The Clerk of Court is DIRECTED to sever Defendant Howard Hughes Medical
Institute into a separate civil case. All documents shall be copied to the new civil
case.
(3) Defendants’ motion to dismiss for lack of personal jurisdiction (Doc. 12) is DENIED
as moot.

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(4) Defendants’ motion to dismiss for failure to state a claim (Doc. 12) remains pending
for the transfer courts.
A separate order will be entered directing the transfer of each case after the new case is
fully docketed.
DONE this 17th day of October, 2017.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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