Case 1:14-cv-01278-GMS Document 37 Filed 03/12/15 Page 1 of 3 PageID #: 1173
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`TEVA PHARMACEUTICALS USA, INC.,
`TEVA PHARMACEUTICAL INDUSTRIES
`LTD., TEVA NEUROSCIENCE, INC., and
`YEDA RESEARCH AND DEVELOPMENT
`CO., LTD.,
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`Plaintiffs,
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`v.
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`SANDOZ INC. and MOMENTA
`PHARMACEUTICALS, INC.,
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`Defendants.
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`TEVA PHARMACEUTICALS USA, INC.,
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`TEVA PHARMACEUTICAL INDUSTRIES
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`LTD., TEVA NEUROSCIENCE, INC., and
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`YEDA RESEARCH AND DEVELOPMENT
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`CO., LTD.,
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`Defendants.
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`Plaintiffs,
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`v.
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`MYLAN PHARMACEUTICALS INC.,
`MYLAN INC. and NATCO PHARMA LTD.,
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`C.A. No. 14-1171-GMS
`(CONSOLIDATED)
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`C.A. No. 14-1278-GMS
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`ORDER
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`WHEREAS, on October 6, 2014, the plaintiffs (collectively, "Teva") filed this action
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`against defendants Mylan Pharmaceuticals Inc., Mylan Inc. (collectively, "Mylan"), and Natco
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`Pharma Ltd. ("Natco") (D.I. 1); 1
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`WHEREAS, presently before the court is Natco's motion to dismiss the complaint. (D.I.
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`22.) Natco argues (1) that the court lacks personal jurisdiction over Natco; (2) that Teva fails to
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`1 Citations to docket items refer to the originally filed member case: C.A. No. 14-1278-GMS.
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`Case 1:14-cv-01278-GMS Document 37 Filed 03/12/15 Page 2 of 3 PageID #: 1174
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`state a claim with respect to Counts I and III; and (3) that the court lacks subject matter
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`jurisdiction to adjudicate Counts II and IV (D.1. 23);
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`WHEREAS, in response, Teva argues that personal jurisdiction exists over Natco-an
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`Indian company-pursuant to Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2) states:
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`Federal Claim Outside State-Court Jurisdiction. For a claim that
`arises under federal law, serving a summons or filing a waiver of
`service establishes personal jurisdiction over a defendant if:
`(A) the defendant is not subject to jurisdiction in any state's
`courts of general jurisdiction; and
`(B) exercising jurisdiction is consistent with the United
`States Constitution and laws.
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`Fed. R. Civ. P. 4(k)(2). In its reply, Natco repeatedly concedes that it would be subject to suit in
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`the Northern District of West Virginia. (D.I. 35 at 2-3 ("[T]his patent infringement suit could be
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`brought-indeed has been brought-by Teva against Natco[] in the ... Northern District of
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`West Virginia.").) The Court of Appeals for the Federal Circuit has explained:
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`[T]he purposes of Rule 4(k)(2) are best achieved when the
`defendant is afforded the opportunity to avoid the application of
`the rule only when it designates a suitable forum in which the
`plaintiff could have brought suit. [The concern underlying Rule
`4(k)(2) was] with defendants escaping jurisdiction in U.S. federal
`courts while still having minimum contacts with the United States.
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`Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403, 1415 (Fed. Cir. 2009) (emphasis added).
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`Therefore, "[a] defendant who wants to preclude the use of Rule 4(k)(2) has only to name some
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`other state in which the suit could proceed." Id. at 1414 (quoting ISi Int'!, Inc. v. Borden Ladner
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`Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001)).
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`WHEREAS, Natco has identified an alternative federal forum in which it would be
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`subject to suit. Rule 4(k)(2) does not permit the court to exercise personal jurisdiction over
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`Natco. Teva's alternative theory-arguing that the court may exercise specific jurisdiction by
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`virtue ofNatco's relationship to Mylan-is not supported by law. (D.I. 31at10.) Moreover, the
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`Case 1:14-cv-01278-GMS Document 37 Filed 03/12/15 Page 3 of 3 PageID #: 1175
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`court is not convinced that jurisdictional discovery would yield information capable of affecting
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`the jurisdictional outcome;
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`THEREFORE, IT IS HEREBY ORDERED THAT Natco's Motion to Dismiss the
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`Complaint for Lack of Personal Jurisdiction (D.I. 22) is GRANTED. The court declines to
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`address the additional arguments raised in Natco's motion.
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`Dated: March (>-, 2015
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`3
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`I
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