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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 17-0051-LPS-CJB
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`FISHER-PRICE, INC. and
`MATTEL, INC.,
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`Plaintiffs,
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`v.
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`DYNACRAFT BSC, INC.,
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`Defendant.
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`PLAINTIFFS’ RESPONSE TO DEFENDANT’S
`MOTION TO DISMISS OR IN THE ALTERNATIVE TO TRANSFER
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`Plaintiffs hereby respectfully file their response to the defendant’s motion to dismiss
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`under Fed. R. Civ. P. 12(b)(3), or in the alternative to transfer this case to the Northern District
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`of California under 28 U.S.C. § 1406(a) (D.I. 9). Defendant bases its motion on the Supreme
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`Court’s recent decision in TC Heartland, LLC v. Kraft Foods Group Brands LLC, No. 16-341,
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`581 U.S. ___ (May 22, 2017). In light of the defendant’s motion and associated declaration,
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`plaintiffs do not oppose the transfer of this case to the United States District Court for the
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`Northern District of California. Plaintiffs do, however, oppose, defendant’s request to dismiss
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`this matter outright, and submit that transfer to the Northern District of California is the more
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`appropriate and efficient outcome under the current circumstances. See Belden Techs., Inc. v. LS
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`Corp., 829 F. Supp. 2d 260, 271-73 (D. Del. 2010) (transferring, rather than dismissing, case
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`under Rule 12(b)(3)); ON Semiconductor Corp. v. Power Integrations, Inc., No. CV-16-02720-
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`PHX-SPL (D. Ariz. Jun. 1, 2017) (same); Pfizer Inc. v. Apotex, Inc., C.A. No. 08-948-LDD,
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`2009 U.S. Dist. LEXIS 82653, *13-14 (D. Del. Aug. 13, 2009) (transferring, rather than
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`dismissing, case under Rule 12(b)(2)).
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`Case 4:17-cv-03745-PJH Document 12 Filed 06/19/17 Page 2 of 4
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`Despite the parties’ agreement that transfer is appropriate (which would make dismissal
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`unnecessary), plaintiffs note for clarity that defendant’s submitted proposed order calls for
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`dismissal with prejudice. Given that defendant repeatedly states in its brief that the court may
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`transfer the case to the Northern District of California in lieu of dismissal, this may be a
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`typographical error. In any event, dismissal with prejudice is inappropriate. Should the court
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`choose to dismiss this action, rather than transfer it, any such dismissal should be without
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`prejudice, so that plaintiffs may re-bring the case in an appropriate forum. See Univ. of
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`Pittsburgh v. Varian Med. Sys., 569 F.3d 1328, 1332 (Fed. Cir. 2009) (An adjudication not on
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`the merits “should not have preclusive effect--i.e. such a dismissal should be without
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`prejudice.”).
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`DATED: June 19, 2017
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`YOUNG CONAWAY STARGATT & TAYLOR LLP
`/s/ Karen L. Pascale
`_____________________________
`Karen L. Pascale (#2903) [kpascale@ycst.com]
`Pilar G. Kraman (#5199) [pkraman@ycst.com]
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`Telephone: (302) 571-6600
`kpascale@ycst.com
`pkraman@ycst.com
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`OF COUNSEL:
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`John R. Hutchins
`ANDREWS KURTH KENYON LLP
`1350 I Street NW, Suite 1100
`Washington, D.C. 20005
`Telephone (202) 662-2700
`Facsimile (202) 662-2739
`johnhutchins@andrewskurthkenyon.com
`Attorneys for Plaintiffs,
`Fisher-Price, Inc. and Mattel, Inc.
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`01:22022741.1
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`- 2 -
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`Case 4:17-cv-03745-PJH Document 12 Filed 06/19/17 Page 3 of 4
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`CERTIFICATE OF SERVICE
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`I, Karen L. Pascale, Esquire, hereby certify that on June 19, 2017, I caused to be
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`electronically filed a true and correct copy of the foregoing document with the Clerk of the Court
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`using CM/ECF (which will send notification that such filing is available for viewing and
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`downloading to all registered counsel), and in addition caused true and correct copies of the
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`foregoing document to be served upon the following counsel of record by electronic mail:
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`jcp@pgmhlaw.com
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`LLSaret@michaelbest.com
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`Attorneys for Defendant Dynacraft BSC, Inc.:
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`John C. Phillips, Jr.
`PHILLIPS, GOLDMAN, MCLAUGHLIN & HALL, P.A.
`1200 North Broom Street
`Wilmington, DE 19806
`(302) 655-4200
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`Larry L. Saret
`MICHAEL BEST & FRIEDRICH LLP
`River Point
`444 West Lake Street
`Suite 3200
`Chicago, Illinois 60606
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`Arthur Gollwitzer III
`MICHAEL BEST & FRIEDRICH LLP
`2801 Via Fortuna, Suite 300
`Austin, TX 78746
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`Rachel N. Bach
`MICHAEL BEST & FRIEDRICH LLP
`100 East Wisconsin Avenue, Suite 3300
`Milwaukee, WI 53202
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`AGollwitzer@michaelbest.com
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`RNBach@michaelbest.com
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`01:21780994.1
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`Case 4:17-cv-03745-PJH Document 12 Filed 06/19/17 Page 4 of 4
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`June 19, 2017
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`YOUNG CONAWAY STARGATT & TAYLOR, LLP
`/s/ Karen L. Pascale
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`Karen L. Pascale (No. 2903) [kpascale@ycst.com]
`Pilar G. Kraman (#5199) [pkraman@ycst.com]
`Rodney Square
`1000 North King Street
`Wilmington, Delaware 19801
`Telephone: 302-571-6600
`Attorneys for Plaintiffs,
`Fisher-Price, Inc. and Mattel, Inc.
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`01:21780994.1
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`2
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