Case 2:23-cv-01997-MCA-JSA Document 111 Filed 11/20/23 Page 1 of 3 PageID: 3632
`Three Gateway Center
`100 Mulberry Street, 15th Floor
`Newark, NJ 07102
`T: 973.757.1100
`F: 973.757.1090
`WALSH.LAW
`
`November 20, 2023
`
`Marc D. Haefner
`Direct Dial: (973) 757-1013
`mhaefner@walsh.law
`
`VIA ECF
`Hon. Madeline Cox Arleo, U.S.D.J.
`United States District Court
`MLK Jr. Federal Bldg. and U.S. Courthouse
`50 Walnut Street
`Newark, NJ 07102
`
`Re: Zirvi v. Illumina, Inc., et al.
`2:23-cv-1997-MCA-JSA
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`Dear Judge Arleo:
`Zirvi’s counsel’s lengthy opposition fails to address the main points that support the
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`application for sanctions against him.
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`Zirvi’s counsel knowingly commenced a new action after extensive litigation in the
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`Southern District of New York had already yielded a final judgment that disposed of Zirvi’s claims.
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`Zirvi’s counsel, having practiced many years, knows that a losing plaintiff typically does not get a
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`second try, especially not where, as here, both a federal circuit court and the United States Supreme
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`Court have unequivocally
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`refused
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`to overturn
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`the dismissal of
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`all
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`claims.
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`The doctrine of res judicata or claim preclusion protects defendants from having to face harassing,
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`repetitive claims. It also prevents counsel from rehashing old claims under new labels, or from
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`evading finality by bringing related claims that could have been brought before. Nothing
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`prevented Zirvi from bringing the same claims he now brings in this district in the closely related
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`lawsuit he brought in the Southern District of New York in 2018. Zirvi’s counsel does not deny
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`that. Nor does he deny that many of the allegations in the two lawsuits are overlapping, if not
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`Case 2:23-cv-01997-MCA-JSA Document 111 Filed 11/20/23 Page 2 of 3 PageID: 3633
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`completely identical. His proffered justifications for ignoring the doctrine of res judicata and for
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`engaging in a clearly prohibited form of piecemeal litigation simply do not withstand scrutiny.
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`Seeking to avoid sanctions, Zirvi’s counsel maintains, for example, that “[a]ll claims in the
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`SDNY litigation arise out of the alleged theft of trade secrets and not the incorporation of the
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`Zipcodes into any specific Illumina patents.” (Opp’n at 9). Yet the line he draws between trade
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`secret issues, on the one hand, and patent issues, on the other, disappears when one looks at the
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`allegations in the SDNY litigation: Zirvi alleged throughout his 143-page SDNY complaint that
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`Illumina had improperly incorporated Zirvi’s alleged Zipcodes into Illumina patents. (SDNY SAC
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`at, among other places, ¶¶ 24-29, 163-68, 176-78, 199, 207-14, 259, 422-23, 591). Indeed, Zirvi
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`claimed in his SDNY complaint to have first discovered his claims when he allegedly saw his own
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`Zipcodes replicated in the face of an Illumina patent. (SDNY SAC ¶¶ 10-13, 322, 502-06). Zirvi’s
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`counsel well knows that, if Zirvi had any patent-related claims, he could have brought them in the
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`Southern District of New York. All of Zirvi’s Zipcode claims, whether couched as trade secret
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`claims or as patent claims, arise from the same nucleus of operative facts. Under the doctrine of
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`claim preclusion, that prohibits a lawyer from commencing a second case. General Elec. Co. v.
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`Deutz AG, 270 F.3d 144, 157-58 (3d Cir. 2001) (“Claim preclusion is designed to avoid piecemeal
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`litigation of claims arising from the same events.”).
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`Zirvi’s counsel also points to ambiguous record references in a FOIA action and in an
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`affidavit submitted by Amy McCourt of Illumina in another separate proceeding. (Opp’n at 10-
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`11, 19). He argues that that these ambiguous references constitute “new information” obtained
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`after the conclusion of the SDNY Litigation (Opp’n at 19) that justify his current claims and excuse
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`him from the constraints of res judicata. That argument should not be taken seriously.
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`The bottom line is that, regardless of any “new information,” Zirvi gained after bringing his SDNY
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`case but before brining this matter, he had all the information he needed to bring his current claims
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`at the time he commenced his SDNY case: his complaint in that case alleged, just as he now
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`alleges here, that Thermo Fisher and Illumina conspired against him, that Thermo Fisher relied on
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`its lawyers in furtherance of that conspiracy and particularly to prevent Zivi from looking at or
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`considering any patents, and that his Zipcodes were wrongfully incorporated in defendants’
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`patents. (SDNY SAC at, among other places, ¶¶ 7, 9, 2, 24, 121, 124-30, 163-68, 176-78, 188,
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`199, 207-14, 259, 271, 422-23, 488-92, 536-37, 591).
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`Finally, in his opposition, Zirvi’s counsel emphasizes the six-year New Jersey statute of
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`limitations for legal malpractice (Opp’n at 33), but he barely touches upon the much more
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`fundamental statute of limitations issue that exposes him to sanctions. As set forth in Thermo
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`Fisher and Finst’s opening brief, per the Southern District of New York’s final judgment, all of
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`Zirvi’s claims associated with the alleged theft of his intellectual property had expired at the latest
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`in 2014, and Zirvi did not come across any of the lawyers whom he claimed committed legal
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`malpractice until 2015. (Br. at 9-10). Indeed, his opposition states that he was not even aware of
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`the underlying Cornell litigation, the springboard for his legal malpractice claims, until February
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`2015. (Opp’n at 14). No Thermo Fisher lawyer acting in 2015 or later could have deprived Zirvi
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`of rights or claims that had already expired in 2014.
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`For the foregoing reasons, Thermo Fisher and Finst respectfully request that sanctions be
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`imposed. Thermo Fisher and Finst also join in such arguments made in defendant Illumina’s reply
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`brief as apply to them.
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`Respectfully submitted,
`s/ Marc D. Haefner
`Marc D. Haefner
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