`CLOSING
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`CHAMBERS OF
`MADELINE COX ARLEO
`UNITED STATES DISTRICT JUDGE
`
`
`
`MARTIN LUTHER KING COURTHOUSE
`50 WALNUT ST. ROOM 4066
`NEWARK, NJ 07101
`973-297-4903
`
`
`
`
`
`
`April 26, 2024
`
`VIA ECF
`
`
`LETTER ORDER
`
`Re: Monib Zirvi, M.D., Ph.D. v. Illumina, Inc. et al.
`Civil Action No. 23-1997
`
`
`Dear Litigants:
`
`Before the Court are three motions to dismiss Plaintiff Monib Zirvi’s (“Zirvi”) Complaint,
`ECF No. 1.
`First, Defendant Illumina Inc.’s (“Illumina”) Motion to Dismiss Zirvi’s Complaint
`pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Illumina’s Motion”). ECF No. 63.
`Second, Defendants Thermo Fisher Scientific (“Thermo Fisher”), Rip Finst (“Finst”), Sean
`Boyle (“Boyle”) (Thermo Fisher, Finst, and Boyle, collectively, the “Thermo Fisher Defendants”),
`Akin Gump Strauss Hauer & Feld LLP (“Akin”), Matthew A. Pearson (“Pearson”), Angela
`Verrecchio (“Verrecchio”), (Akin, Pearson, and Verrecchio, collectively, the “Akin Defendants”),
`Latham & Watkins LLP (“Latham”), Roger Chin (“Chin”), and Douglas Lumish’s (“Lumish”)
`(Latham, Chin, and Lumish, collectively, the “Latham Defendants”) Motion to Dismiss Zirvi’s
`Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Defendants’ Motion”). ECF
`No. 82.
`Third, the Latham Defendants’ Motion to Dismiss Zirvi’s Complaint pursuant to Federal
`Rules of Civil Procedure 12(b)(2), 12(b)(3), and 12(b)(6) (“Latham Motion”).1 ECF No. 84.2
`Because the claims asserted are a repackaging of the same claims summarily dismissed by
`the District Court in the Southern District of New York, Plaintiff’s Complaint is DISMISSED
`WITH PREJUDICE.
`
`
`1 The Latham Motion pleads 12(b)(2) and 12(b)(3), only if the Plaintiff’s Complaint proceeds. See Latham Mot. at 8.
`As the Court is dismissing the Complaint, it will only consider the Latham Motion under 12(b)(6).
`2 Also before the Court are two motions for Rule 11 Sanctions: first, Illumina’s Motion for Sanctions against Zirvi
`(“Illumina Sanctions Motion”), ECF No. 99; and second, Thermo Fisher and Finst’s Motion for Sanctions against
`Zirvi (“Thermo-Finst Sanctions Motion”) (Illumina Sanctions Motion and Thermo-Finst Sanctions Motion,
`collectively, the “Sanctions Motions”), ECF No. 104.
`
`
`
`1
`
`
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`I.
`
`BACKGROUND
`In this newest Complaint, Plaintiff expands on the same wide-ranging conspiracy theories
`that were dismissed in the Southern District—that the defendant biotechnology companies,
`Illumina and Thermo Fisher, were engaged in a two-decade conspiracy to steal trade secret and
`intellectual property. The new Complaint tells the same story, but expands the misappropriation
`claims, asserts new claims of fraud, and now claims that the lawyers were in on it.
`A brief review of the background facts and the various lawsuits involving the Parties is in
`order.
`
`A. Zirvi’s ZipCodes
`In the 1990s, Zirvi worked in a Cornell University Medical College laboratory developing
`DNA diagnostic technology, including “ZipCode sequences” for incorporation into mass-
`produced DNA microchips. Compl. ¶¶ 9–14. During that time, Zirvi allegedly worked
`independently on a separate data set of ZipCodes that was his trade secret. Id. ¶ 14. Zirvi intended
`to incorporate his ZipCode operating system “into the manufacture of DNA microchips and receive
`royalties through the licensing of the invention.” Id. ¶ 13. According to Zirvi, Illumina wrongfully
`obtained his data set and incorporated it into patents, products, and SEC filings in 2000. Id. ¶ 14.
`The use of ZipCodes by Illumina became the subject of several litigations. Id. ¶ 15.
`B. 2006 Patent Interference Claim
`In 2006, Zirvi, along with others, brought a patent interference claim before the United
`States Patent and Trademark Office (“USPTO”), alleging that the Chief Technology Officer of
`Affymetrix, a division of Thermo Fisher, unlawfully derived a 1994 patent application and a
`related family of patents from a grant proposal that incorporated Zirvi’s ZipCodes. Zirvi v. Flatley,
`433 F. Supp. 3d 448, 457 (S.D.N.Y.), aff’d, 838 F. App’x 582 (2d Cir. 2020) (the “SDNY
`Litigation”). The Board of Patent Appeals concluded that Zirvi’s claim failed to establish that the
`Affymetrix inventors derived their subject matter from the grant proposal research. Id.
`C. The Delaware Litigation
`On May 24, 2010, Cornell University, Cornell Research Foundation, Inc., Life
`Technologies Corporation (purchased by Thermo Fisher in 2014), and Applied Biosystems, LLC
`(collectively, “Cornell”) sued Illumina for patent infringement in the U.S. District Court for the
`District of Delaware. Compl. ¶ 15; see SDNY Litigation, 433 F. Supp. 3d at 457; see Cornell
`Univ. v. Illumina, Inc., No. 10-433, 2017 WL 89165, at *1 (D. Del. Jan. 10, 2017) (the “Delaware
`Litigation”). During the Delaware Litigation, Thermo Fisher was represented by, among others,
`Finst, Boyle, the Akin Defendants, and the Latham Defendants (collectively, the “Attorney
`Defendants”). Compl. ¶ 17. Zirvi, who was not a party to the Delaware Litigation, served as a
`fact witness and was deposed in 2015. SDNY Litigation, 433 F. Supp. 3d at 458. According to
`Zirvi, the Attorney Defendants advised him that his interests were aligned with those of plaintiffs
`in the Delaware Litigation and that, as such, they “represented his interests.” Compl. ¶¶ 18–19;
`SDNY Litigation, 433 F. Supp. 3d at 458.
`The patents at issue in the Delaware Litigation are the same patents as those at issue in this
`
`
`
`2
`
`
`
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`Action. Compl. ¶¶ 40, 43; see also SDNY Litigation, 433 F. Supp. 3d at 463. The Delaware
`Litigation was settled in April of 2017, but Cornell, in June of 2017, moved to vacate the
`settlement; its motion was denied in March 2018. Compl. ¶¶ 25–30; Defs.’ Mot. at 6, ECF No.
`82. Zirvi believes that the Delaware Litigation plaintiffs attempted to vacate the settlement
`because they discovered “fraud and collusion” by and between Illumina and Thermo Fisher.
`Compl. ¶ 30.
`
`D. The SDNY Litigation
`In 2018, Zirvi, along with three former colleagues, filed the SDNY Litigation against
`“scientists and businesspeople Jay Flatley, David Walt, Stephen Fodor, Kevin Gunderson, Jian-
`Bing Fan, Mark Chee, and John Stueplnagel, a patent lawyer Robin Silva, and biotechnology
`companies Affymetrix, P.E. Applied Biosystems3, and Illumina, Inc.” alleging claims under,
`the Defend Trade Secrets Act (DTSA), 18 U.S.C. § 1836, et seq.; the Racketeer
`Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq.; the
`New York common law of trade secrets protections; and claims for other common
`law torts of fraud, conversion, tortious interference with prospective business
`advantage, inequitable conduct, civil conspiracy, and breach of confidence.
`433 F. Supp. 3d at 453.
`
`The court in the SDNY Litigation summarized Zirvi’s allegations:
`The gravamen of the Complaint is that the defendants misappropriated the
`plaintiffs’ trade secrets in violation of both federal and New York state law in 1994
`and 1999. The plaintiffs argue that two separate acts of alleged misappropriation
`– (1) Fodor’s misappropriation of the Barany proposal in 1994, and (2) the
`Illumina defendants’ misappropriation of Barany’s and Zirvi’s proprietary 465 zip
`codes in 1999 – resulted in the defendants’ wrongful ownership of trade secrets
`that broadly fall into three categories – (1) positive trade secrets contained in the
`1994 Barany proposal, (2) positive trade secrets contained in the 1999 proprietary
`zip codes, and (3) negative
`trade secrets derived from both acts of
`misappropriation that include the experimental knowhow and dead ends that
`allegedly have independent economic value to a competitor seeking to replicate
`the plaintiffs’ experimental results.
`Id. at 458.
`The court in the SDNY Litigation found that (1) plaintiffs’ claims were time-barred
`because the alleged misappropriation occurred as far back as 1994 and 1999; (2) Illumina’s patent
`filing in 2000 put Zirvi on constructive notice of his claims; and (3) the 2006 patent litigation and
`2010 Delaware Litigation triggered accrual, therefore “whether the accrual date was in 1994, 1999,
`2006, or 2010, the federal statutes of limitations have long since passed.” Id. at 459–60. The same
`facts preclude the plaintiffs’ state law claims. See id. at 461 (finding that “whether governed by
`the three-year or six-year limitations period. . . [t]he alleged misconduct in this case occurred in
`
`3 Affymetrix and Applied Biosystems are divisions of Thermo Fisher. See Defs.’ Mot. at 7, ECF No. 82.
`
`
`
`3
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`
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`1994 and 1999, at which point the claims accrued, and therefore the state law claims are barred by
`the statutes of limitations.”). The Second Circuit affirmed, finding that, at best, the SDNY
`plaintiffs’ federal claims “began to run no later than the dates of the 2006 patent interference
`proceedings before the [USPTO] and the 2010 [Delaware Litigation].” Zirvi v. Flatley, 838 F.
`App’x 582, 585 (2d Cir. 2020) (internal citations omitted).
`The SDNY court also found that plaintiffs failed to plead a single state or federal claim
`upon which relief could be granted. SDNY Litigation, 433 F. Supp. 3d at 463–67.
`E. This Action
`On April 8, 2023, Zirvi filed his Complaint in this Court bringing Count I, for correction
`of inventorship of 52 Illumina patents pursuant to 35 U.S.C. § 256 against Illumina; Count II, for
`legal malpractice against the Attorney Defendants; Count III, for Fraud against Thermo Fisher and
`the Attorney Defendants; and Count IV, for civil conspiracy against all Defendants. See generally
`Compl.
`For Count I against Illumina, Zirvi alleges that Illumina obtained patents that “incorporate
`inventive steps derived from [Zirvi’s] intellectual property and copyrights,” that Zirvi “contributed
`novel concepts and work to the inventions,” and that Zirvi’s ZipCodes were improperly
`appropriated for use in the patents. Compl. ¶¶ 55–61.
`For Count II, Zirvi alleges that Attorney Defendants “failed to represent Plaintiff during
`settlement negotiations,” or “failed to inform Plaintiff during the [Delaware Litigation] that they
`were not going to represent Plaintiff’s interest.” Id. ¶¶ 63–68. According to Zirvi, this caused him
`to lose his right of enforcement against Illumina in an individual matter because he believed his
`claims would be resolved as part of the Delaware Litigation. Id. By the time he brought his claims,
`they were time-barred. Id.
`For Count III, Zirvi alleges that Thermo Fisher and Attorney Defendants misrepresented
`that “they would represent Plaintiff and in fact did represent Plaintiff in preparing and defending
`his deposition,” and “that Plaintiff’s interest and ThermoFisher’s interest were aligned” so that
`Zirvi would not hire his own attorney to represent his interests in intellectual property or, through
`his own attorney, be involved in the Thermo Fisher-Illumina settlement. Id. ¶¶ 78–87.
`For Count IV, Zirvi alleges that Defendants worked together to deprive him of his
`intellectual property rights by “pretending to be engaged in a legitimate fight within the confines
`of a court case over the intellectual property” while Illumina and Thermo Fisher “had an agreement
`between each other to inflict harm upon Plaintiff by constructing an agreement that would make it
`impossible for Plaintiff [to] enforce his right to his intellectual property.” Id. ¶¶ 92–99. As part
`of this scheme, Thermo Fisher and Attorney Defendants “would feign to be averse to Illumina
`while at the same time working together to usurp Plaintiff’s Intellectual Property Rights for their
`own use and benefit.” Id.
`The instant Motions followed.
`
`
`
`
`
`4
`
`
`
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`II.
`
`LEGAL STANDARD
`A. Motion to Dismiss Under Rule 12(b)(6)
`In resolving a Rule 12(b)(6) motion to dismiss, the Court accepts all pleaded facts as true,
`construes the complaint in the plaintiff’s favor, and determines “whether, under any reasonable
`reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny,
`515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks and citations omitted). To survive a
`motion to dismiss, the claims must be facially plausible, meaning that the pleaded facts “allow[]
`the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations must be “more than labels and
`conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
`Corp. v. Twombly, 550 U.S. 544, 555 (2007).
`III. ANALYSIS
`The Court dismisses Zirvi’s Complaint with prejudice because (1) Zirvi’s four claims for
`inventorship, legal malpractice, fraud, and civil conspiracy are all barred by claim preclusion; and
`(2) he fails to state any claims upon which relief can be granted.
`A. Res Judicata (Claim Preclusion)
`Defendants argues that Zirvi’s action is precluded under the doctrine of res judicata.4
`The Court agrees.
`Res judicata,5 also known as claim preclusion, applies when there has been “(1) a final
`judgment on the merits in a prior suit involving (2) the same claim and (3) the same parties or their
`privies.” United States v. 5 Unlabeled Boxes, 572 F.3d 169, 173 (3d Cir. 2009) (quoting EEOC
`v. United States Steel Corp., 921 F.2d 489, 493 (3d Cir. 1990)). It requires a plaintiff to bring in
`one suit “all the claims for relief that he may have arising out of the same transaction or
`occurrence.” Lubrizol Corp. v. Exxon Corp., 929 F. 2d 960, 964 (3d Cir. 1991) (internal citations
`omitted). Those elements are present here.
`The SDNY Litigation presents a final judgment on the merits in a prior suit. The SDNY
`Litigation found that all of plaintiffs’ claims, including trade secrets, fraud, and civil conspiracy,
`were time barred and failed to state a claim. See generally 433 F. Supp. 3d; see also Elkadrawy v.
`Vanguard Grp., Inc., 584 F.3d 169, 173 (3d Cir. 2009) (finding that “a dismissal on statute-of-
`limitations grounds” is “a judgment on the merits”). The SDNY litigation involved the same
`parties or those in privity. Zirvi was a plaintiff in the SDNY Litigation and Illumina was a
`defendant. Thermo Fisher, through its wholly owned divisions, Affymetrix and Applied
`Biosystems, was also a party in both actions. While Attorney Defendants, who were either in-
`
`
`4 Res judicata and collateral estoppel are affirmative defenses, but they may be raised in a motion to dismiss under
`Federal Rule of Civil Procedure 12(b)(6). Walzer v. Muriel, Siebert & Co., 221 F. App’x 153, 155 (3d Cir. 2007).
`5 The term “res judicata” broadly encompasses two concepts: claim preclusion and issue preclusion. Many courts and
`commentators use “res judicata” narrowly to mean claim preclusion and “collateral estoppel” to mean issue preclusion.
`See Brownback v. King, 141 S. Ct. 740, 747 n. 3 (2021) (explaining the nomenclature of claim and issue preclusion).
`The Court will follow the latter framework in discussing Defendant’s preclusion arguments.
`
`
`
`5
`
`
`
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`house or outside counsel to Thermo Fisher in the Delaware Litigation, are new to this Action, they
`are all in privity with Thermo Fisher. See Copeland v. US Bank Cust PC5 Sterling Nat’l, No. 20-
`07016, 2021 WL 2134942, at *8 (D.N.J. May 26, 2021) (finding that, for the purposes of claim
`preclusion, where attorneys represented defendants in a prior litigation, allegations against them
`were “inextricably intertwined to those asserted against the defendants” in the prior litigation).
`The claims in this Action and in the SDNY Litigation are the same. “Suits involve the
`same claim (or cause of action) when they arise from the same transaction or involve a common
`nucleus of operative facts.” Lucky Brand Dungarees, Inc. v. Marcel Fashions, Grp., Inc., 140 S.
`Ct. 1589, 1595 (2020) (internal citations omitted). “This analysis does not depend on the specific
`legal theory invoked, but rather the essential similarity of the underlying events giving rise to the
`various legal claims.” Elkadrawy, 584 F.3d at 173 (3d Cir. 2009) (internal citations omitted).
`“[R]es judicata bars not only claims that were brought in [a] previous action, but also claims that
`could have been brought.” Id. (finding that the focal points of the courts analysis is “whether the
`acts complained of were the same, whether the material facts alleged in each suit were the same
`and whether the witnesses and documentation required to prove such allegations were the same.”)
`(internal citations omitted).
`The SDNY Litigation asserted claims of inventorship, malpractice, and fraud, stemming
`from plaintiff’s intellectual property relating to DNA sequencing while working at Cornell labs in
`the 1990s. The SDNY Litigation and this Action both rest on the same general theory that Illumina
`and Thermo Fisher orchestrated a large conspiracy to deprive Zirvi of his intellectual property
`rights and trade secrets, including through Defendants actions during the Delaware Litigation.
`Compare SDNY Litigation with Compl.
`First, although Zirvi did not bring an inventorship claim in the SDNY Litigation, he could
`have, and it is thus barred by res judicata. See Cisco Sys., Inc. v. Alcatel USA, Inc., 301 F. Supp.
`2d 599, 603 (E.D. Tex. 2004) (finding that where a party brought a trade secret misappropriation
`claim before the court, it could not make “a mere change in legal theory” requesting “declaratory
`relief as to the ownership of the appropriated materials” because the “factual predicates” for the
`new claim were “based on the same nucleus of operative facts as those in the underlying suit.”).
`Zirvi’s inventorship claim in this action mirrors his trade secrets claim in the SDNY Litigation. In
`fact, both claims are based on the same allegedly misappropriated DNA ZipCode sequences. See
`Illumina Mot. at 17. In his own Complaint, Zirvi even asserts that the same ZipCode sequences
`which were the subject of both the SDNY Litigation and this Action, “were protectable as
`patentable subject matter and as a trade secret.” Compl. ¶ 11 (emphasis added).
`Second, although Zirvi’s malpractice claim involves entirely new parties, the Attorney
`Defendants (representatives for Thermo Fisher in the Delaware Litigation) are in privity with
`Thermo Fisher, an SDNY Litigation defendant. See Jackson v. Dow Chem. Co., 902 F. Supp. 2d
`658, 671 (E.D. Pa. 2012) (“An attorney-client relationship may justify application of claim
`preclusion even when the attorney was not a party to the prior suit.”), aff’d, 518 F. App’x 99 (3d
`Cir. 2013). The malpractice claim, while not brought in the SDNY Litigation, is based on the
`recycled theory that Thermo Fisher conspired with Illumina to deprive Zirvi of his intellectual
`property and trade secrets. Under that theory, Zirvi could have brought a malpractice claim in his
`
`
`
`6
`
`
`
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`prior suit. Indeed, in the SDNY Litigation Second Amended Complaint (the “SDNY SAC”)
`plaintiffs make direct reference to lawyers’ involvement in the scheme. See Declaration of
`Michael S. Stein (“Stein Decl”), Ex. 2 (SDNY SAC) ¶¶ 7–9, ECF No. 82.4.6
`Finally, because fraud and conspiracy were brought in the SDNY Litigation, res judicata
`bars Zirvi from realleging them here. Although these claims include new defendants, the new
`defendants are in privity with Thermo Fisher. Both claims, in SDNY and in this Action, are based
`on the same set of ZipCodes and share “a common nucleus of operative facts”: an alleged
`conspiracy to misappropriate Zirvi’s ZipCodes. See Lucky Brand Dungarees, Inc., 40 S. Ct. at
`1595; Defs.’ Mot. at 15–17, ECF No. 82; Illumina Mot. at 18, ECF No. 63.7
`The Court therefore finds that all four of Zirvi’s claims are barred by claim preclusion.
`B. Doctrine of Laches
`Illumina also argues that Zirvi’s first claim—the correction of inventorship of 52 Illumina
`patents pursuant to 35 U.S.C. § 256—is barred by the doctrine of laches. The Court agrees.
`Laches is an equitable defense that may bar an inventorship claim. To prevail on a
`defense of laches, a defendant must establish that (1) the plaintiff’s delay in filing
`a suit was unreasonable and inexcusable; and (2) the defendant suffered material
`prejudice attributable to the delay. Further, a rebuttable presumption of laches
`attaches whenever more than six years passes from the time a purportedly omitted
`inventor knew or should have known of the issuance of the relevant patent.
`Lismont v. Alexander Binzel Corp., 813 F.3d 998, 1002 (Fed. Cir. 2016) (internal citations
`omitted). Every patent over which Zirvi claims an inventorship rights was issued over six years
`ago—creating a rebuttable presumption of laches—and was discussed in detail in the SDNY
`Litigation, thus putting Zirvi on notice of his omission on the patents as a purported inventor. See
`also Illumina Mot. at 21–22.
`C. 12(b)(6) Analysis
`1. Count I: Correction of Inventorship
`Zirvi fails to plead a cognizable injury and therefore does not have standing to sue Illumina
`for inventorship. To state a claim for inventorship, “a plaintiff must allege some redressable
`
`
`6 In the SDNY SAC, plaintiffs allege that attorneys were involved in the scheme: “[i]n the [Delaware Litigation] prior
`to his deposition and for a period immediately afterwards, Doctor Zirvi was specifically instructed by the lawyers for
`ThermoFisher not to look at any patents or any other scientific material that could be used as evidence in the case.
`Doctor Zirvi could not have known at the time, that ThermoFisher a defendant and co-conspirator in this case, had its
`own nefarious reasons for this instruction. Only after his deposition, in August 2015, did the lawyers for ThermoFisher
`instruct the inventors to actually search for any patents and/or other documents that might be used as evidence.” Id.
`7 The SDNY SAC and the instant Complaint both include allegations of (1) collusion between Illumina and Thermo
`Fisher in developing Ampliseq for Illumina during the Delaware Litigation, (2) a plan to defraud third parties,
`including Zirvi, of their royalties, and (3) a fraudulent settlement of the Delaware Litigation through collusion. Defs.’
`Mot. at 15, ECF No. 82; Illumina Mot. at 9, 18–19, ECF No. 63.
`
`
`
`7
`
`
`
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`economic harm that directly flows from the incorrect listing of inventors on a patent.” Feuss v.
`Enica Eng’g, PLLC, No. 20-2034C, 2021 WL 1153146, at *3 (D.N.J. Mar. 26, 2021). Zirvi alleges
`economic harm from loss in royalties because of Illumina’s use of his ZipCodes in its patents.
`Compl. ¶¶ 38, 47. But, as Zirvi concedes, his claim to those royalties is time-barred. Id. ¶ 86.
`Even if it was not, Zirvi does not allege the existence of any royalties agreement and only alleges
`that his “intent” was to “receive royalties through the licensing of the invention.” Id. ¶ 13. Without
`alleging the existence of a royalties agreement or any other right to profit, Zirvi fails to plead
`economic damage sufficient for standing. See Feuss, 2021 WL 1153146, at *3.
`Zirvi also alleges, without support, that not being named as an inventor on the patents, “has
`undermined [his] reputation and standing in the scientific community.” Compl. ¶ 48. But, a
`plaintiff, even on a motion to dismiss, cannot rest on “mere allegations of reputational injury alone”
`to plead a cognizable injury. Feuss, 2021 WL 1153146, at *3.
`Finally, Zirvi’s Complaint lists 52 patents that he claims utilized his ZipCodes, but does
`not include any allegations specific to any one patent. Compl. ¶ 45. In Section 256 inventorship
`cases, there is a presumption that the listed patent investors are correct, and to meet the “heavy
`burden” to overcome the presumption, a plaintiff must identify a “specific patent claim” for each
`individual patent. See Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1358 (Fed. Cir. 2004)
`(“The general rule is that a party alleging misjoinder or non-joinder of inventors must meet the
`heavy burden of proving its case by clear and convincing evidence.”); Pro Mktg. Sales, Inc. v.
`Secturion Sys., Inc., No. 19-113, 2020 WL 5912351, at *5 (D. Utah Oct. 6, 2020) (finding that at
`the motion to dismiss stage, a plaintiff must “identify a single specific patent claim” to which he
`“made an inventive contribution). Zirvi fails to so allege.
`2. Count II: Legal Malpractice
`Zirvi’s malpractice claim is premised on the notion that the Attorney Defendants’ “failure
`to represent, or inform Plaintiff to retain his own representation,” caused him to fail “to be
`compensated or recognized” in the Delaware Litigation settlement and caused him to delay
`bringing his own case against Illumina. Compl. ¶ 65. But Zirvi’s Complaint fails to plead the
`existence of an attorney-client relationship between himself and any of those Defendants, or to
`even plead facts sufficient for an assumption by Zirvi that the Attorney Defendants represented his
`interests. See Iqbal, 556 U.S. at 678 (finding that “[t]hreadbare recitals of the elements of a cause
`of action, supported by mere conclusory statements, do not suffice” to survive a motion to dismiss).
`In fact, Zirvi was not even a party to the Delaware Litigation, and served only as a fact witness.
`Compl. ¶¶ 18–19.
`The Court therefore finds that Zirvi failed to state a claim for legal malpractice against the
`Attorney Defendants.
`
`3. Count III: Fraud
`For a claim of fraud, the Court must apply the heightened Rule 9(b) pleading standard,
`meaning that “the complaint must describe the time, place, and contents of the false representations
`or omissions, as well as the identity of the person making the statement and the basis for the
`
`
`
`8
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`statement’s falsity.” City of Warren Police and Fire Ret. Sys. v. Prudential Fin., Inc., 70 F.4th
`668, 680 (3d Cir. 2023). Plaintiff has failed to do so here. Instead, the Complaint broadly alleges
`that “[d]efendants made false statements that Plaintiff’s interests and ThermoFisher’s interests
`were aligned and therefore he didn’t need an attorney;” and that “even if Plaintiff retained his own
`counsel,” he could not participate in the litigation. Compl. ¶¶ 80–81; see Defs.’ Mot. at 27, ECF
`No. 82. Without context, attribution, or specificity, plaintiff fails to state a claim.
`4. Count IV: Civil Conspiracy
`Zirvi fails to state a civil conspiracy claim because he does not plead any “predicate
`unlawful purpose” upon which a conspiracy can be based. Golden State Med. Supply Inc. v.
`AustarPharma LLC, No. 21-17137, 2022 WL 2358423, at *11 (D.N.J. June 30, 2022).
`
`
`
`IV. CONCLUSION
`For the reasons stated above, Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.
`The Court will hold the Sanctions Motions IN ABEYANCE, pending a conference with Judge
`Allen, which shall be scheduled forthwith.
`
`
`
`
`
`
`
` SO ORDERED.
`
`
`
`s/ Madeline Cox Arleo__________
`MADELINE COX ARLEO
`UNITED STATES DISTRICT JUDGE
`
`9
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`
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