Bayer HealthCare LLC et al v. Mylan Pharmaceuticals Inc. et al

Filing 60

MEMORANDUM ORDER re (12 in 1:15-cv-00114-LPS)(9 in 1:15-cv-01162-LPS) MOTIONS to Dismiss are DENIED without prejudice to renew. Signed by Judge Leonard P. Stark on 3/30/16. Associated Cases: 1:15-cv-00114-LPS, 1:15-cv-01162-LPS (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BAYER HEALTHCARE LLC, BAYER
HEALTHCARE PHARMACEUTICALS INC. ,
and ONYX PHARMACEUTICALS, INC. ,

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Plaintiffs,

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v.

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MYLAN PHARMACEUTICALS INC.,

Civil Action No. 15-114-LPS
CONSOLIDATED

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Defendant.

MEMORANDUM ORDER
WHEREAS , presently before the court is Defendant Mylan Pharmaceuticals Inc.' s
("Mylan") Motion to Dismiss for Lack of Personal Jurisdiction (D.I. 12), 1 on which the parties
finished briefing on June 22, 2015 (D.I. 13, 21, 24), as well as Mylan' s Motion to Dismiss for
Lack of Personal Jurisdiction (C.A. No. 15-1162 D.I. 9) 2 in a related action which was
consolidated with the above-captioned action on March 10, 2016 (see D.I. 50);
WHEREAS , the Court has reviewed the parties ' recently-filed letters regarding how to
proceed with the Motions to Dismiss (D.I. 54, 55, 58, 59) and finds that they are ripe for

1

All docket citations are to Civil Action No . 15-114-LPS unless otherwise indicated.

2

Although the motion pending in Civil Action No. 15-1162-LPS raises the additional
issue of whether venue is proper, Mylan' s argument regarding venue stands or falls with its
position on personal jurisdiction. See VE Holding Corp. v. Johnson Gas Appliance Co., 917
F.2d 1574, 1584 (Fed. Cir. 1990) ("[T]he first test for venue under§ 1400(b) with respect to a
defendant that is a corporation . .. is whether the defendant was subject to personal jurisdiction
in the district of suit at the time the action was commenced.") (quoting 28 U.S.C. §§ 1391(c) &
1400(b)).
1

decision, notwithstanding the parties' stipulation to "suspend" them (D.I. 46) and
notwithstanding Mylan' s argument to the contrary (see, e.g., D.I. 58 at 2); 3
WHEREAS , on January 14, 2015, the Court rejected Mylan' s arguments regarding
substantially the same issues oflaw and fact as those at issue in the pending Motions to Dismiss
in Acorda Therapeutics, Inc. v. Mylan Pharmaceuticals Inc., 78 F. Supp. 3d 572 (D . Del. 2015),
finding that Mylan is subject to the specific and general personal jurisdiction of Delaware courts;
WHEREAS, on February 3, 2016, the Court entered a Stipulation and Order which
suspended further briefing and argument on the Motions to Dismiss pending receipt of "Federal
Circuit guidance in pending appeals relating to personal jurisdiction in this district" - that is,
pending the Federal Circuit' s decision in an interlocutory appeal from this Court's Acorda
decision (and/or an interlocutory appeal from the decision of Judge Sleet of this Court in
AstraZeneca AB v. Mylan Pharmaceuticals, Inc. , 72 F. Supp. 3d (D. Del. 2014) ("AstraZeneca"))
(see D.I. 46);
WHEREAS, on March 18, 2016, the Federal Circuit issued its decision in the appeals of
Acorda and AstraZeneca, affirming this Court's finding of specific jurisdiction over Mylan, see
Acorda Therapeutics Inc v. Mylan Pharm. Inc., 2016 WL 1077048 (Fed. Cir. Mar. 18, 2016)
("Acorda AppeaI");
WHEREAS, the Court concludes here that it may exercise specific jurisdiction over
Mylan, for the reasons stated by the Federal Circuit in the Acorda Appeal;

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Mylan indicates that it will be seeking rehearing en bane by the Federal Circuit of the
recent panel decision in the Acorda Appeal. (See D.I. 58 at 1) Noting that the Federal Circuit
has not issued a mandate, Mylan asks the Court to "refrain[] from taking further action on
Mylan's pending motions until the appellate review process has run its course." (Id.)
2

WHEREAS, the Court further concludes once again that it may exercise general
jurisdiction over Mylan, for the reasons stated by this Court in Acorda, as general jurisdiction
was an independent ground for finding personal jurisdiction over Mylan in Acorda that was not
disturbed by the Federal Circuit in the Acorda Appeal;
NOW, THEREFORE, IT IS HEREBY ORDERED that Mylan' s Motions to Dismiss (D.I.
12; C.A. 15-1162, D.I. 9) are DENIED WITHOUT PREJUDICE to renew should the en bane
Federal Circuit or Supreme Court materially change the law from what the Federal Circuit panel
has held in the Acorda Appeal. (See D.I. 59 at 1)

HON. LEONARD P. ST
UNITED STATES DISTRICT COURT

March 30, 2016
Wilmington, Delaware

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