Case 1:18-cv-00303-RGA Document 32 Filed 05/29/18 Page 1 of 5 PageID #: 871
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiff,
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`v.
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`BAXTER HEALTHCARE CORPORATION,
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`HOSPIRA, INC. and ORION CORP.,
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`Defendants.
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`C. A. No. 18-303-RGA
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`HOSPIRA’S RESPONSE TO BAXTER’S MOTION FOR
`REARGUMENT OF THE SCHEDULING ORDER
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`The parties submitted a proposed scheduling order with dueling proposed schedules:
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`Hospira sought a slower schedule with a trial date of December 2019, while Baxter sought a
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`more expedited schedule with a trial date of May 15, 2019. D.I. 18. The Court sided with
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`Baxter and set a trial date even earlier than the date Baxter requested: May 3, 2019. D.I. 21.
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`Baxter has now filed a motion to “reargue” the scheduling order, arguing that the schedule
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`Baxter itself sought weeks ago is too slow and insisting that it will be irreparably harmed if this
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`case is not resolved before the end of 2018. D.I. 25.1 This request should be denied.
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`ARGUMENT
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`“District Courts have inherent power to manage their own docket,” and “[m]atters of
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`docket control … are committed to the sound discretion of the district court.” Greatbatch Ltd. v.
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`AVX Corp., 179 F. Supp. 3d 370, 380 (D. Del. 2016) (citation and quotation marks omitted).
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`Baxter contends that this Court abused that discretion by declining to entertain its motion for
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`1 The day after filing its motion, Baxter submitted a Rule 7.1.1 certification stating that the
`parties had conferred as to the motion. D.I. 26. But contrary to Rule 7.1.1, there was no
`communication between the parties’ Delaware counsel.
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`Case 1:18-cv-00303-RGA Document 32 Filed 05/29/18 Page 2 of 5 PageID #: 872
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`judgment on the pleadings and postponing its case-dispositive rulings until trial. Baxter is
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`incorrect.
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`I. The Court Need Not Decide Baxter’s Motion for Judgment on Uncontested Issues.
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`Hospira has conceded non-infringement with respect to three of the four patents-in-suit.
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`Baxter’s request that the Court decide its motion to dismiss with respect to those patents is
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`unnecessary. As Baxter states, the “parties are discussing entry of a consent judgment on these
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`patents, but no agreement has been reached.” Mot. at 3.2 Those negotiations should be
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`permitted to run their course.
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`Baxter raises the prospect of being “force[d] to litigate” these patents “through trial,
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`including serving non-infringement contentions, hiring experts, briefing claim construction, and
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`preparing a Markman presentation.” Mot. at 5. The Court can rest assured that Hospira will not
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`litigate infringement of patents for which it has already conceded non-infringement.
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`II. The Court Reasonably Deferred Resolution of Case-Dispositive Issues Until Trial.
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`In its scheduling order, the Court elected to defer any decision on case-dispositive issues
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`until trial, which will take place in less than a year. Thus, the Court denied Baxter’s motion for
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`judgment on the pleadings. This was an eminently reasonable exercise of discretion, particularly
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`in light of the unorthodox nature of Baxter’s motion. In a typical case, a Rule 12 motion
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`assumes the truth of all allegations in the complaint, and argues that those allegations do not state
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`a claim as a matter of law. If Baxter had filed such a motion in this case, it would have failed,
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`because the case turns primarily on Baxter’s intent to induce infringement—a question that
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`requires factual development and cannot be resolved on the pleadings. To avoid this problem,
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`Baxter filed an answer attaching witness declarations and other evidence, D.I. 14, and then filed
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`2 “Mot.” refers to Baxter’s Motion for Reargument, D.I. 25.
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`2
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`Case 1:18-cv-00303-RGA Document 32 Filed 05/29/18 Page 3 of 5 PageID #: 873
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`a motion for judgment on the pleadings, asserting that this evidence—attached to its own
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`responsive pleading—entitled it to judgment. See, e.g., D.I. 17 at 18. This is not the way Rule
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`12 works—Rule 12 does not permit a party to append evidence to its own pleading and assert
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`that this evidence entitles it to victory, without discovery. See, e.g., Execware, LLC v. BJ’s
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`Wholesale Club, Inc., 2015 WL 5734434, at *3 (D. Del. Sept. 30, 2015) (noting that extrinsic
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`evidence “cannot be considered at the Rule 12 stage”). The Court did not abuse its discretion in
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`declining to entertain this procedurally improper motion.
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`Baxter does not contend that a court generally is under an obligation to decide case-
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`dispositive motions before trial. Instead, it argues that the Court should decide Baxter’s early
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`motion in this case because a failure to issue a “final non-appealable judgment by January 11,
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`2019” (prior to expiry of the ‘867 patent) would result in “irreparable harm and injustice.” Mot.
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`at 5-6. Baxter did not alert Hospira or the Court to this “irreparable harm and injustice” when it
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`sought, and received, its requested May 2019 trial date. D.I. 18. Baxter identifies no reason for
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`its change of heart.
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`Further, any harm arising from delay is of Baxter’s own making. Baxter states that it
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`filed this suit one month after FDA tentatively approved its ANDA. Mot. at 3. But Baxter could
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`have filed this suit long before, in July 2016—and Baxter does not suggest otherwise. Baxter
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`suggests that it delayed in filing this suit because it “expected to receive full FDA approval
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`because the first applicant had apparently forfeited its exclusivity,” which would have rendered
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`the suit unnecessary. Mot. at 6. But Baxter’s expectation was thwarted when “FDA only
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`tentatively approved Baxter’s ANDA,” “apparently based on a decision in which FDA
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`determined that the first filer did not forfeit its eligibility for exclusivity.” Id. Baxter’s incorrect
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`predictions about the regulatory process are no basis to demand that the Court decide premature
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`3
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`Case 1:18-cv-00303-RGA Document 32 Filed 05/29/18 Page 4 of 5 PageID #: 874
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`dispositive motions, nor do they justify material prejudice to Hospira through accelerated
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`proceedings.
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`III. The Trial Should Not Be Moved to 2018.
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`The Court should also decline Baxter’s request to move the trial date to late 2018. Mot.
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`at 7. As already noted, the Court has already granted Baxter’s request for a May 2019 trial over
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`Hospira’s objection, and Baxter identifies no changed circumstances that would warrant
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`reconsideration of that decision. Further, a late 2018 trial would be burdensome to Hospira.
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`Hospira intends to argue both on-label and off-label indirect infringement, which will require
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`discovery into Baxter’s knowledge and intent on its product’s usages. Thus, Hospira will seek
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`document discovery of Baxter’s sales documents, internal correspondence, and external
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`correspondence. It will also seek to depose Baxter personnel (and potentially others). This
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`discovery will take time, and a late 2018 trial would result in a highly expedited and burdensome
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`discovery schedule. In light of Baxter’s own delay in bringing this suit and raising this supposed
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`urgency, it has no basis for insisting that Hospira and the Court be subjected to such a schedule.
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`CONCLUSION
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`The motion to reconsider should be denied.
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`Case 1:18-cv-00303-RGA Document 32 Filed 05/29/18 Page 5 of 5 PageID #: 875
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` Respectfully submitted,
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`Dated: May 29, 2018
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`Of Counsel:
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`Bradford P. Lyerla
`Sara T. Horton
`Yusuf Esat
`Ren-How Harn
`JENNER & BLOCK LLP
`353 N. Clark Street
`Chicago, IL 60654-3456
`Telephone: 312 222-9350
`Facsimile: 312 527-0484
`blyerla@jenner.com
`shorton@jenner.com
`yesat@jenner.com
`rharn@jenner.com
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`CONNOLLY GALLAGHER LLP
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`/s/ Arthur G. Connolly, III
`Arthur G. Connolly, III (#2667)
`Ryan P. Newell (#4744)
`The Brandywine Building
`1000 West Street, Suite 1400
`Wilmington, DE 19801
`302) 757-7300
`aconnolly@connollygallagher.com
`rnewell@connollygallagher.com
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`Attorneys for Defendants
`Hospira, Inc. and Orion Corp.
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