Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 1 of 4 PageID #: 987
`Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 1 of 4 PageID #: 987
`
`FARNAN...
`
`October 27, 2017
`
`VIA E-FILING
`
`The Honorable Leonard P. Stark
`
`US. District Court for the District of Delaware
`
`844 North King Street
`Wilmington, DE 19801
`
`Re:
`
`Bristol-Myers Squibb Co. et al. v. Mylan Pharm. Inc.,
`CA. No. 17-379-LPS
`
`Dear Chief Judge Stark,
`
`Under the guise of a discovery dispute, Defendant Mylan Pharmaceuticals Inc. (“MP1”) is
`seeking untimely reconsideration or relief from the Court’s September 1 1, 2017 order denying its
`motion to dismiss and ordering it to submit to venue-related discovery. (D.I. 36 & 37.) In MPI’s
`view, the Federal Circuit’s decision in In re Cray Inc, 871 F.3d 1355 (Fed. Cir. 2017), “changed
`the landscape” of patent venue law and called into doubt all authority that came before it. (D.I.
`45 at 1.) But Cray did no such thing.
`
`Cray clarified that a “regular and established place of business” requires a physical place
`in the district and emphasized that the inquiry about whether a defendant has such a place is fact—
`intensive. This Court applied the same reasoning in the September 1 1‘h opinion and denied
`MPI’S motion to dismiss because the relevant facts had not yet been developed. That remains
`true today. Discovery is still necessary to determine whether MP1 has a physical location in
`Delaware, whether other entities maintain a physical location here on MPI’s behalf, and whether
`MPI’s many Delaware-incorporated affiliates act as its alter egos here. Plaintiffs request that the
`Court therefore deny MPl’s request for relief, allow venue-related discovery to commence, and
`defer ruling on the effect of Cray on this case until MP1 files any renewed motion to dismiss.1
`
`I. MPI’s request for relief should be denied because it is an untimely and procedurally
`flawed motion for reconsideration 0r relief.
`
`MPI’s request is procedurally flawed and should be denied regardless of its merits. MP1
`has not objected to any of Plaintiffs’ specific discovery requests. Rather, MP1 is using the
`discovery matters procedure to seek reconsideration or relief from the Court’s September 1 11h
`order.
`(D.I. 37.) This is improper. To the extent MP1 is seeking reargument ofits motion to
`dismiss in light of Cray, MPI’s request is untimely. Local Rule 7.1.5 requires a motion for
`reargument to be filed within 14 days ofthe underlying order, but MP1 did not file its letter until
`17 days after the Court’s order on MPI’s motion and a week after the Cray decision. Any
`argument that the September 21Sl Cray opinion affected the Court’s September 1 11“ order could
`and should have been raised by September 25m, which MP1 failed to do. Likewise, to the extent
`MP1 is seeking relief from the order, Rule 60(b) only allows such relief after a final judgment,
`which the Court’s September 1 1lh order was not. The Court should therefore deny MPI’s request
`because it does not raise a discovery dispute—it is a tardy and improperly presented request for
`reargument ofa motion MP1 already lost.
`
`
`
`I MP1 will not renew its motion for at least 60 days after this dispute’s resolution. (D1. 38. 11 3.)
`
`919 N. MARKET STREET, 12TH FLOOR. WILMINGTON, DE 19801
`
`PHONE:
`
`(302) 777-0300 - FAX:
`
`(302) 777-0301 0 WWW.FARNANLAW.COM
`
`

`

`Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 2 of 4 PageID #: 988
`Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 2 of 4 PageID #: 988
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`II.
`
`The Court’s September 11th order is consistent with Cray.
`
`MPI’s request should also be rejected because it lacks merit. Plaintiffs agree that Cray
`resolved ambiguity about what constitutes a “regular and established place of business” by
`requiring a defendant to have a physical presence in the district. But this Court’s decision also
`required that. In denying MPI’s motion to dismiss, this Court expressly held that “some physical
`presence is .
`.
`. required” to establish venue. (D1. 36 at 30.) That is consistent with the Federal
`Circuit’s holding. See, e.g., Cray, 871 F.3d at 1364 (“In the final analysis, the court must
`identify a physical place, of business, of the defendant”). Even independent commentators have
`noted that Cray implicitly ratified this Court’s reasoning.2
`
`Both this Court and the Cray court emphasized that facts matter in deciding whether a
`defendant has a sufficient physical presence. Indeed, the Federal Circuit held that “no precise
`rule has been laid down and each case depends on its own facts.” 1d. at 1362.
`It explained that a
`multitude of facts might be relevant to each of the “regular and established place of business”
`factors, “stress[ing] that no one fact is controlling.” Id. at 1366. Cray did not address many of
`the factors outlined in this Court’s opinion, nor did it set forth an exhaustive checklist of relevant
`contacts for the venue inquiry.
`
`Unlike the record here, the Cray record was sufficiently robust to allow the court to find
`that the defendant lacked a physical presence in the district—the district court’s opinion
`describes extensive document productions and depositions, see Raytheon Co. v. Cray, Inc, No.
`2:15-cv-1554, 2017 WL 2813896, at *1-2 & n.1 (E.D. Tex. June 29, 2017). MP1, however, did
`not produce nearly enough information to allow the Court to resolve its motion, despite venue
`being a “fact-intensive inquiry.” (D.I. 36 at 35.) Cray did not mitigate the need for more facts to
`assess whether Mylan can carry its burden of establishing that venue is improper in Delaware.
`
`III. Venue-related discovery remains necessary to test MPI’s declaratory evidence and to
`probe the relationships between MP1 and its 40 Delaware affiliates and subsidiaries.
`
`Because the venue—related facts in this case are sparse and contradictory, discovery
`remains necessary. Indeed, it is telling that MPI seeks to block all discovery surrounding its bare
`venue allegations. MPI has yet to produce anything beyond the two single-page declarations
`that it submitted with its motion to dismiss, which it again asks Plaintiffs and the Court to accept
`at face value. As the Court recognized last month, it should not do so. (D.I. 36 at 35—39.)
`
`MPI’s declarations are both narrowly worded and insufficient to address the venue-
`related facts discussed in Cray. They focus only on basic, conclusory allegations (e.g., about
`whether MP1 owns or leases property in Delaware) and address only MP1—not any of its many
`Delaware—incorporated affiliates and subsidiaries. (D1. 36 at 38.) The declarations fail to
`address, for example, whether any MP1 employees, officers, or contractors regularly conduct
`business at a place in Delaware on MPI’s behalf, nor do they address whether MP1 “exercises
`other attributes ofpossession or control over [a physical] place” here. Cray, 871 F.3d at 1363.
`MPI’s declarations are also silent about whether it has entered into arrangements with others to
`
`
`2 Andrew Williams, Views on Venue, PatentDocs (Sept. 24, 2017), http://bit.ly/2g102z9 (noting
`that both the Cray panel and this Court based their holdings on the language of the patent venue
`statute and governing precedent rather than adopting a new framework, and concluding that “it
`does not appear that the Delaware Court’s BMS case is inconsistent with the .
`.
`. Cray case”).
`
`

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`Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 3 of 4 PageID #: 989
`Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 3 of 4 PageID #: 989
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`“stor[e] materials at a place in the district so that they can be distributed or sold from that place,”
`and they only superficially address whether MP1 “holds out a place for its business” in this
`district.
`Id. MPI’s declarations are thus insufficient to show that venue is improper.
`
`Moreover, MPI’s declarations also do not address its relationships with other Delaware-
`incorporated Mylan companies—of which there are at least 40. (D1. 36 at 36.) As the Federal
`Circuit has held and as this Court recognized, “venue in a patent infringement case [may be]
`proper with regard to one corporation by virtue of the acts of another, intimately connected,
`corporation.” Minn. Min. & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1265 (Fed. Cir. 1985);
`see also DI. 36 at 44. MP1 attempts to limit 3M to its facts (D1. 45 at 3), but courts routinely
`cite 3M to establish venue and jurisdiction over defendants based on their alter egos. See, e.g., In
`re Rosuvastatin Calcium Patent Litig, CA. No. 07—359—JJF—LPS, 2009 WL 4800702, at *5 (D.
`Del. Dec. 1 1, 2009) (citing 3M3 holding that a “court which has jurisdiction over a corporation
`has jurisdiction over its alter egos”). Cray did not address 3M, let alone undermine it. Because
`the 40 Mylan Delaware entities are at least intricately—and likely intimately—connected with
`MP1, MP1 must submit to discovery about its relationships with them so Plaintiffs can test
`whether those entities’ Delaware presence can be imputed to MP1. (DI. 36 at 44.)
`
`Even aside from these substantive deficiencies in MPI’s declarations, venue—related
`discovery is necessary to test the statements in them. This is not a case in which there is no
`“reason to doubt the veracity of Defendants’ declarations.” Bos. Sci. Corp. v. Cook Grp. Inc.,
`CA. No. 15—980, 2017 WL 3996110, at *15 (D. Del. Sept. 11, 2017). To the contrary, even
`without discovery, certain statements in MPI’s declarations are questionable. For example,
`MPI’s declarant states that MP1 “had no sales in Delaware during 2016 and to date in 2017.”
`(DI. 36 at 38 (citing MP1 Dec]. 11 7).) But recently uncovered evidence shows that MP1
`advertises that “[i]n 2016, Mylan generics saved Delaware $74 million.” (Ex. 1 (emphasis
`added).) MP1 holds most of the regulatory approvals that allow the Mylan family to sell its
`products. Therefore, it appears from public statements that MP1 continues to have significant
`sales in Delaware. At a minimum, the tension between MPI’s declaration and Mylan’s public
`statements suggests that the declarations do not fully describe MPI’s Delaware footprint.
`
`IV. The scope of Plaintiffs’ discovery requests is consistent with Cray.
`
`MP1 has not objected to any of Plaintiffs’ specific discovery requests, but rather has only
`disputed that the general topics the Court discussed in its September 1 1‘" opinion are consistent
`with Cray. (DI. 45 at 3.) To the extent MP1 suggests that Plaintiffs’ requests are too broad, that
`dispute is not properly before the Court. In the parties’ only meet and confer about venue since
`Plaintiffs served their requests, MP1 represented that it had not reviewed them. But even to the
`extent MP1 objects to the scope of Plaintiffs’ requests, its objections lack merit. Plaintiffs
`drafted their requests after Cray was decided and focused them on topics that Cray, this Court,
`and other controlling authority deem relevant to the venue analysis. (DI. 45-2.) MP1 has not
`explained how the requests are inconsistent with Cray, nor has it explained why Plaintiffs should
`not be able cross—examine its declarant and test the evidence it has presented.
`
`“Most ofthe pertinent evidence” for MPI’s venue challenge, even after Cray, is still “in
`the possession and control of MP1 (and other Mylan entities)” (DI. 36 at 43.) The Court should
`therefore reaffirm its September 1 1lh order and reject MPl’s attempt to deny Plaintiffs from
`taking any venue-related discovery.
`
`

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`Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 4 of 4 PageID #: 990
`Case 1:17-cv-00379-LPS Document 48 Filed 10/27/17 Page 4 of 4 PageID #: 990
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`Respectfully submitted,
`
`/s/ Michael J. F arnan
`
`Michael J. Farnan
`
`cc: All Counsel of Record (Via Electronic Mail)
`
`