Case 2:23-cv-01997-MCA-JSA Document 102 Filed 10/16/23 Page 1 of 2 PageID: 3108
`THREE(cid:3)GATEWAY(cid:3)CENTER(cid:3)
`100(cid:3)Mulberry(cid:3)Street,(cid:3)15th(cid:3)Floor(cid:3)
`Newark,(cid:3)NJ(cid:3)07102(cid:3)
`T:(cid:3)973.757.1100(cid:3)
`F:(cid:3)973.757.1090(cid:3)
`WALSH.LAW(cid:3)
`
`Marc(cid:3)D.(cid:3)Haefner(cid:3)
`Direct(cid:3)Dial:(cid:3)(973)(cid:3)757(cid:882)1013(cid:3)
`mhaefner@walsh.law(cid:3)(cid:3)
`
`October 13, 2023
`
`VIA ECF
`Honorable Jessica S. Allen, U.S.M.J.
`U.S. District Court for the District of New Jersey
`Martin Luther King Jr. Building & U.S. Courthouse
`50 Walnut Street
`Newark, New Jersey 07102
`
`Re: Monib Zirvi, M.D., Ph.D. v. Illumina, Inc. et al.
`Civil Action No.: 2:23-cv-1997 (MCA/JSA)
`
`Dear Judge Allen:
`
`This firm, along with Shapiro Arato Bach LLP, represents Defendants Thermo Fisher
`Scientific, Rip Finst, and Sean Boyle (collectively “Thermo Fisher”) in the above-referenced
`matter.
`
`Pursuant to the Court’s Letter Order dated July 11, 2023, which requires “prior leave of
`Court” before certain motions may be filed, Thermo Fisher hereby respectfully seeks leave to file
`a motion for sanctions under Rule 11 of the Federal Rule of Civil Procedure, prior to the Court’s
`decision on Thermo Fisher’s pending motion to dismiss. ECF No. 82.
`
`The Third Circuit has adopted “a supervisory rule for the courts in [this] Circuit” requiring
`“that all motions requesting Rule 11 sanctions be filed in the district court before the entry of a
`final judgment.” Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 100 (3d Cir. 1988). District Courts,
`including Judge Arleo, have accordingly denied motions for sanctions as untimely even when
`such motions are filed very shortly after a dismissal. See, e.g., Cymonisse v. Fair Cap., LLC, No.
`20-2430, 2021 WL 1178653, at *4 (D.N.J. Feb. 24, 2021), report & recommendation adopted,
`2021 WL 1175161 (D.N.J. Mar. 26, 2021) (Arleo, J.) (motion for sanctions filed two weeks after
`dismissal); Cresskill Volunteer First Aid Squad v. Borough of Cresskill, No. 05-3294, 2006 WL
`8458352, at *1 (D.N.J. Jan. 25, 2006) (same). To avoid running afoul of that supervisory rule,
`Thermo Fisher must file its motion for sanctions prior to the Court deciding the pending motion to
`dismiss.
`
`This Court recently granted leave to defendant Illumina, Inc. (“Illumina”) to file a Rule 11
`sanctions motion in this case. ECF No. 95. To avoid duplicative argument and unnecessary
`briefing, Thermo Fisher’s motion will largely join in Illumina’s arguments. Thermo Fisher is
`prepared to comply with the briefing schedule set by the Court for Illumina’s motion: motion by
`October 27; opposition by November 6; reply, if any, by November 13, 2023. ECF No. 95.
`
`Thermo Fisher’s motion for sanctions is well founded. Thermo Fisher advised Plaintiff’s
`counsel early on that Thermo Fisher would pursue sanctions if Plaintiff did not withdraw his
`
`

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`Case 2:23-cv-01997-MCA-JSA Document 102 Filed 10/16/23 Page 2 of 2 PageID: 3109
`
`Honorable Jessica S. Allen, U.S.M.J.
`October 13, 2023
`Page 2
`
`complaint. By letter dated June 15, 2023, Thermo Fisher set out the grounds on which it would
`seek sanctions, fully explaining that Plaintiff’s claims were sanctionable given dispositive prior
`rulings in a final judgment issued by a federal court in the Southern District of New York and
`affirmed by the Second Circuit, in a case brought by the same Plaintiff against Thermo Fisher
`concerning the same or very similar allegations. Thermo Fisher’s June 15 letter attached a Notice
`of Motion for Sanctions. By letter dated July 10, 2023, Plaintiff’s counsel responded, requesting
`an extension of the Rule 11 safe harbor until twenty-one (21) days after the date of Thermo
`Fisher’s first responsive filing. Thermo Fisher submitted its first responsive filing, a
`comprehensive motion to dismiss, on September 19, 2023. ECF No. 82. Twenty-one days from
`that filing elapsed just recently on October 10, 2023. Thermo Fisher’s motion to dismiss, now
`fully briefed with all submissions before the Court, further explains and underscores why Plaintiff’s
`claims are plainly sanctionable.
`
`Accordingly, Thermo Fisher respectfully requests that the Court grant it leave to file its
`motion for sanctions under Rule 11. If the Court grants the motion, Thermo Fisher will promptly
`file its motion, largely joining Illumina’s pending motion, by October 27, 2023.
`
`Respectfully submitted,
`
`s/Marc D. Haefner
`
`Marc D. Haefner
`
`cc:
`
`All Counsel of Record (via ECF and Email)
`
`SO ORDERED
`
`/s/ Jessica S. Allen
`Hon. Jessica S. Allen, U.S.M.J.
`
`Date:
`10/16/23
`
`