Biotechnology Value Fund, L.P. et al v. Celera Corporporation et al
Filing
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ORDER GRANTING IN PART AND DENYING IN PART 82 PLAINTIFFS' MOTION FOR LEAVE TO FILE SURREPLY by Hon. William Alsup.(whalc2, COURT STAFF) (Filed on 12/6/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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BIOTECHNOLOGY VALUE FUND, L.P.,
BIOTECHNOLOGY VALUE FUND II,
L.P., INVESTMENT 10, L.L.C., BVF
INVESTMENTS, L.L.C.; BVF INC., and
BVF X, LLC,
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ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFFS’ MOTION FOR
LEAVE TO FILE SURREPLY
Plaintiffs,
v.
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CELERA CORPORATION, QUEST
DIAGNOSTICS INCORPORATED,
CREDIT SUISSE SECURITIES (USA)
LLC, KATHY ORDOÑEZ, RICHARD H.
AYERS, JEAN-LUC BELINGARD,
WILLIAM G. GREEN, PETER BARTON
HUTT, GAIL M. NAUGHTON, WAYNE
I.. ROE, and BENNETT M. SHAPIRO,
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No. C 13-03248 WHA
Defendants.
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Plaintiffs have submitted a motion seeking leave to file a surreply, in response to the
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replies in support of defendants’ two motions to dismiss (Dkt. No. 82). Attached to that motion
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is a proposed surreply. According to plaintiffs, defendants did not consent to the filing of a
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surreply (ibid. at 10).
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Nonetheless, plaintiffs argue that a surreply is warranted to address two issues from
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defendants’ replies: (1) defendants’ reported mischaracterization of the argument that plaintiffs
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were legally precluded from asserting Section 14(e) claims; and (2) defendant’s suggestion that
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plaintiffs had access to the discovery record from the Delaware proceedings when drafting the
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amended complaint.
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To the extent stated, plaintiffs’ motion is GRANTED IN PART AND DENIED IN PART.
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With respect to the second issue from above, plaintiffs declare that they did not have access to
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confidential discovery materials from the Delaware proceedings until November 10, when
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defense counsel authorized plaintiffs’ access to such documents (Miarmi Decl. ¶¶ 13, 14).
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Plaintiffs then assert that defendants submitted confidential portions of documents — including
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two e-mails from defendant Kathy Ordoñez — in support of the replies filed on November 18,
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after such portions had been unavailable to plaintiffs when they drafted the amended complaint
and the oppositions to defendants’ motions to dismiss. Accordingly, as to the proposed
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For the Northern District of California
United States District Court
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surreply’s discussion of these e-mails or plaintiffs’ access to confidential discovery materials
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from the Delaware proceedings, plaintiffs’ motion is GRANTED and the surreply is deemed filed.
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Plaintiffs, however, may not submit a surreply as to the first issue from above,
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concerning their argument that they were legally precluded from asserting Section 14(e) claims.
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This is because as to this issue, plaintiffs’ proposed surreply focuses on a new argument —
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equitable tolling of the statute of limitations — that was not in defendants’ replies. It is true that
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in its motion to dismiss, defendant Credit Suisse Securities (USA) addresses equitable tolling,
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but neither plaintiffs’ opposition to that motion nor defendants’ subsequent replies discuss that
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issue. At best, plaintiffs’ argument that they were legally precluded from bringing Section 14(e)
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claims took place within a discussion of tolling under American Pipe & Construction Co. v.
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Utah, 414 U.S. 538 (1974), and not in the context of equitable tolling (Opp. 22). Plaintiffs’
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motion is therefore DENIED as to the proposed surreply’s discussion of equitable estoppel and
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the argument that plaintiffs were legally precluded from asserting Section 14(e) claims.
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IT IS SO ORDERED.
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Dated: December 6, 2013.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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