Millennium Pharmaceuticals, Inc. v. Apotex Corp. et al

Filing 9

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 11/19/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MILLENNIUM PHARMACEUTICALS,
INC.,
Plaintiff,
v.
APOTEX CORP., et al.,
Defendants.

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No.

13 C 8240

MEMORANDUM ORDER
This newly-filed patent infringement action, assigned at
random to this Court’s calendar, has the appearance of a
potential poster child for the cottage industry of forum
shopping:
1.

Plaintiff Millennium Pharmaceuticals, Inc.

(“Millennium”) is a Delaware corporation with its principal
place of business in Cambridge, Massachusetts (Complaint
¶2).
2.

Codefendant Apotex Corp., also a Delaware

corporation, has its principal place of business in Weston,
Florida (Complaint ¶3).
3.

Codefendant Apotex, Inc. is a Canadian corporation

with its principal place of business in Toronto (Complaint
¶4).
Conspicuously absent from those allegations is any logical
predicate for the institution of suit in this Illinois District
Court.

Although to be sure Complaint ¶¶5 and 6 assert the facts (as
is always true of companies engaged in nationwide business
activities) that both Apotex entities engage in the manufacture
or sale of their drugs in this judicial district, that proves too
much (or too little).

Those allegations may well suffice to

establish both venue and in-personam jurisdiction over the Apotex
defendants in this Northern District of Illinois, but they would
also suffice for the institution of this lawsuit anywhere in the
United States--any place that might suit the fancy of Millennium
and its counsel.

And in the latter respect it is noteworthy that

Millennium’s lead counsel are listed as Boston and Palo Alto
lawyers from the branch offices of the Wilmer Cutler Pickering
Hale & Dorr LLP law firm.1
Some idea of the makeweight nature of Millennium’s choice of
forum may be gleaned from the Complaint ¶12 allegation that
“Apotex, Inc. has previously availed itself of this forum for the
purpose of litigating its patent infringement disputes.”

For

that purpose the Complaint refers (with no apparent recognition
of its patent2 irrelevance) to the fact that in a lawsuit in this
District Court in which the Apotex companies were sued earlier

1

Although a Chicago lawyer has signed onto the Complaint,
that adds nothing to the substantive mix--but in the course of
analyzing 28 U.S.C. §1404(a)(“Section 1404(a)”) this Court has
often had occasion to comment that “convenience of counsel” is
wholly absent from the factors identified in that statute.
2

Bad pun intended.
2

this year, they “filed a counterclaim seeking declaratory
judgment of non-infringement and invalidity”!
From this Court’s point of view Millennium has to do better
than that.

Its counsel is directed to file, on or before

November 27, 2013, a statement providing a better explanation of
why this action should remain here.3

This Court may then

consider the appropriateness or inappropriateness of a sua sponte
Section 1404(a) transfer and, if such transfer appears
appropriate, the location of the transferee situs (see Ferens v.
John Deere Co., 494 U.S. 516, 530 (1990) and 17 Moore’s Federal
Practice §111.16[3](3d ed. 2013)).

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

November 19, 2013

3

That may perhaps include amplification of the assertion
in Complaint ¶12 that Apotex, Inc. recently “identified its agent
for service of process for purposes of patent infringement as
being located in this Judicial District”--an amplification that
should include an explanation of the context and manner in which
the quoted conduct took place.
3