Shire Development, LLC et al v. Mylan Pharmaceuticals, Inc. et al

Filing 107

ORDER: Plaintiffs' Motion for Partial Judgment on the Pleadings (Dkt. 83) is DENIED. Signed by Judge James S. Moody, Jr on 3/21/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SHIRE DEVELOPMENT, LLC, et al.,
Plaintiffs,
v.

Case No. 8:12-cv-1190-T-30AEP

MYLAN PHARMACEUTICALS, INC.
and MYLAN, INC.,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiffs’ Motion for Partial Judgment
on the Pleadings (Dkt. 83) and Defendants’ Response in Opposition (Dkt. 102). The Court,
having reviewed the motion, response, and being otherwise advised in the premises,
concludes that the motion should be denied.
Plaintiffs’ motion is peculiar. In this patent case, Plaintiffs move for judgment on the
pleadings with respect to Defendants’ purported claim of “inequitable conduct” before the
Patent Office. Plaintiffs cite generally to Defendants’ third and fifth affirmative defenses and
assume that these defenses rely, in part, on an unenforceability argument, to wit, that the
subject patent is unenforceable due to Plaintiffs’ inequitable conduct.
Defendants’ response makes it clear that, at this time, they are not seeking an
unenforceability claim due to inequitable conduct. Rather, Defendants’ counsel notified

Plaintiffs’ counsel that Defendants may seek leave to amend their answer in the event that
discovery reveals facts supporting such a claim.1
In sum, Plaintiffs’ motion for judgment on the pleadings seeks a judgment on an
unpled claim. The Court cannot render an advisory opinion on this issue. Accordingly,
Plaintiffs’ motion is without merit. Plaintiffs may move for summary judgment at the
appropriate time on Defendants’ affirmative defenses. At this stage, these defenses are
properly pled.
It is therefore ORDERED AND ADJUDGED that Plaintiffs’ Motion for Partial
Judgment on the Pleadings (Dkt. 83) is DENIED.
DONE and ORDERED in Tampa, Florida on March 21, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2012\12-cv-1190.denymt-83.frm

1

The Court renders no opinion at this juncture regarding whether the Court would grant such a

motion.
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