Invitae Corporation v. Myriad Genetics, Inc

Filing 17

STIPULATION AND ORDER re 16 STIPULATION WITH PROPOSED ORDER FOR EXTENSION OF TIME TO RESPOND TO COMPLAINT filed by Myriad Genetics, Inc. Signed by Judge Jon S. Tigar on December 20, 2013. (wsn, COURT STAFF) (Filed on 12/20/2013)

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1 2 3 4 5 6 7 8 9 10 11 12 Jonathan E. Singer (Bar No. 187908) singer@fr.com Geoff D. Biegler (Bar No. 290040) biegler@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: (858) 678-5070 Facsimile: (858) 678-5099 John M. Farrell (Bar No. 99649) farrell@fr.com Limin Zheng (Bar No. 226875) zheng@fr.com FISH & RICHARDSON P.C. 500 Arguello Street, Suite 500 Redwood City, CA 94063-1566 Telephone: (650) 839-5070 Facsimile: (650) 839-5071 Attorneys for Defendant MYRIAD GENETICS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION) 13 14 15 16 INVITAE CORPORATION, a Delaware corporation, 17 Plaintiff, 18 19 20 21 v. Case No. 13-cv-05495-JST STIPULATION AND [PROPOSED] ORDER FOR EXTENSION OF TIME TO RESPOND TO COMPLAINT Judge: Hon. Jon S. Tigar MYRIAD GENETICS, INC., a Delaware corporation, Defendant. 22 23 24 25 26 27 28 4841-8865-2567.1 STIPULATION AND [PROPOSED] ORDER Case No. 13-cv-05495-JST 1 Pursuant to Local Rule 6-2, Plaintiff Invitae Corporation (“Invitae”) and Defendant Myriad 2 Genetics, Inc. (“Myriad”) (together, the “Parties”), by and through counsel, hereby stipulate and 3 respectfully ask the Court for an order extending the deadline for Myriad to file its responsive 4 pleading to Invitae’s Complaint (Dkt. No. 1) until thirty (30) days after the Judicial Panel for 5 Multi-District Litigation (the “Panel”) issues its ruling on Myriad’s November 8, 2013 motion to 6 transfer certain actions involving, among other things, patents related to the BRCA1/2 genes to the 7 United States District Court for the District of Utah for consolidated pre-trial proceedings (the 8 “MDL Motion”). 9 10 In support of this Stipulation, Myriad and Invitae state the following: 1. On November 26, 2013, Invitae commenced this action against Myriad seeking a 11 declaration of invalidity and noninfringement of certain patents owned by or exclusively licensed to 12 Myriad. 13 2. Myriad’s responsive pleading is currently due on December 26, 2013. 14 3. Pursuant to the Court’s Order Setting Initial Case Management Conference and 15 ADR Deadline (Dkt. No. 8) (the “Order”), the following additional deadlines are currently set in 16 this action: 17 Date 18 19 February 2, 2014 20 21 22 February 26, 2014 23 24 25 March 5, 2014 4. Event Last day to:  meet and confer re: initial disclosures, early settlement, ADR process selection, and discovery plan  file ADR Certification signed by Parties and Counsel  file either Stipulation to ADR Process or Notice of Need for ADR Phone Conference Last day to file Rule 26(f) Report, complete initial disclosures or state objection in Rule 26(f) Report and file Case Management Statement INITIAL CASE MANAGEMENT CONFERENCE On November 25, 2013, Myriad filed suit against Invitae in the United States District 26 Court for the District of Utah, asserting infringement of the same patents at issue in this action (the 27 “Utah Action”). On December 9, 2013, Invitae filed a motion to dismiss the Utah Action for lack of 28 2 4841-8865-2567.1 STIPULATION AND [PROPOSED] ORDER Case No. 13-cv-05495-JST 1 personal jurisdiction. 2 5. Certain of the patents at issue in this action and in the Utah Action are also at issue in 3 five other actions filed by Myriad in the United States District Court for the District of Utah and 4 two other actions filed against Myriad (one in this District [Counsyl, Inc. v. Myriad Genetics, Inc., 5 Case No. CV-13-04391-EJD]; the other in the United States District Court for the Central District 6 of California). 7 6. On November 8, 2013, Myriad filed its MDL Motion with the Panel to have the 8 actions pending in the United States District Courts for the Northern and Central Districts of 9 California referenced in Paragraph 5, above, transferred to the United States District Court for the 10 District of Utah for consolidated pre-trial proceedings before The Honorable Robert Shelby, before 11 whom the earliest Utah actions are pending. 12 7. On November 27, 2013 and December 4, 2013, respectively, Myriad filed notices 13 with the Panel and this Court identifying this action as a potential tag-along action with respect to 14 any consolidated proceedings ordered by the Panel. 15 16 8. The Panel will hear Myriad’s MDL Motion at the Panel’s next sitting (January 30, 2014, in New Orleans, Louisiana). 17 9. Because the Panel’s anticipated ruling on Myriad’s MDL Motion may have a 18 substantial impact on Myriad’s positions on personal jurisdiction and other issues relevant to this 19 and the Utah Action, Myriad and Invitae stipulate and respectfully seek an order from the Court 20 extending the deadline for Myriad’s responsive pleading until thirty (30) days after the Panel 21 issues its ruling on Myriad’s MDL Motion. Myriad and Invitae are also seeking a corresponding 22 extension of Myriad’s deadline to file an opposition to Invitae’s motion to dismiss in the Utah 23 Action. Myriad has agreed not to file a motion for injunctive relief against Invitae prior to the 24 Panel’s ruling on Myriad’s MDL Motion. 25 /// 26 /// 27 /// 28 3 4841-8865-2567.1 STIPULATION FOR EOT TO RESPOND TO COMPLAINT Case No. 13-cv-05495-JST 1 10. The Parties respectfully note that any extension of the deadline for Myriad’s 2 responsive pleading is also likely to necessitate an extension of the current deadlines set by the 3 Court’s previously-referenced Order. The Parties thus propose and stipulate to the following 4 modifications of the dates currently set in this action: 5 Event 6 7 Current Deadline December 26, 2014 Myriad Response to Complaint 8 9 Last day to:  meet and confer re: initial disclosures, early settlement, ADR process selection, and discovery plan  file ADR Certification signed by Parties and Counsel  file either Stipulation to ADR Process or Notice of Need for ADR Phone Conference Last day to file Rule 26(f) Report, complete initial disclosures or state objection in Rule 26(f) Report and file Case Management Statement 10 11 12 13 14 15 February 2, 2014 February 26, 2014 16 17 INITIAL CASE MANAGEMENT CONFERENCE 18 11. 19 March 5, 2014 Proposed New Deadline 30 days after the Panel issues its ruling on Myriad’s MDL Motion 21 days prior to the Initial Case Management Conference [to be reset by Court] 14 days prior to the Initial Case Management Conference [to be reset by Court] To be reset by Court There have been no previous time modifications in this case, either by stipulation or 20 by Court order. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 4 4841-8865-2567.1 STIPULATION FOR EOT TO RESPOND TO COMPLAINT Case No. 13-cv-05495-JST 1 12. The Parties will immediately notify the Court of the Panel’s ruling on Myriad’s 2 MDL Motion. 3 IT IS SO STIPULATED. 4 Dated: 5 FISH & RICHARDSON P.C. December 19, 2013 6 7 8 9 10 11 By: /s/ Geoff D. Biegler Geoff D. Biegler (Bar No. 290040) biegler@fr.com 12390 El Camino Real San Diego, CA 92130 Telephone: (858) 678-5070 Facsimile: (858) 678-5099 Dated: December 19, 2013 PILLSBURY WINTHROP SHAW PITTMAN LLP By: Attorneys for Defendant MYRIAD GENETICS, INC. 12 13 /s/ Colin T. Kemp Kirke M. Hasson (SBN 61446) kirke.hasson@pillsburylaw.com Richard L. Blaylock (SBN 212947) richard.blaylock@pillsburylaw.com Colin T. Kemp (SBN 215408) colin.kemp@pillsburylaw.com Four Embarcadero Center, 22nd Floor Post Office Box 2824 San Francisco, CA 94126-2824 Telephone: (415) 983-1000 Facsimile: (415) 983-1200 Attorneys for Plaintiff INVITAE CORPORATION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 4841-8865-2567.1 STIPULATION FOR EOT TO RESPOND TO COMPLAINT Case No. 13-cv-05495-JST 1 2 [PROPOSED] ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED, 3 4 20 Dated: December __, 2013 5 _________________________________ Hon. Jon S. Tigar United States District Court Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 4841-8865-2567.1 STIPULATION AND [PROPOSED] ORDER Case No. 13-cv-05495-JST

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