Case 2:23-cv-01997-MCA-JSA Document 77 Filed 08/25/23 Page 1 of 2 PageID: 1678
`THREE GATEWAY CENTER 
`100 Mulberry Street, 15th Floor 
`Newark, NJ 07102 
`T: 973.757.1100 
`F: 973.757.1090 
`WALSH.LAW 
`
`
`
`Liza M. Walsh 
`Direct Dial: (973) 757‐1101 
`lwalsh@walsh.law  
`
`August 25, 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)
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`Dear Judge Allen:
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`This firm, along with Shapiro Arato Bach LLP, represents defendants Thermo Fisher
`Scientific, Rip Finst, and Sean Boyle. We respectfully submit this letter to join in defendant
`Illumina, Inc.’s motion seeking an order that discovery not commence. (ECF 64.) We have
`conferred with all other remaining defendants, and they too join this request and support the
`requested relief.
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`Illumina recently filed a motion to dismiss. (ECF 63.) Thermo Fisher and all other
`remaining defendants intend to file their own comprehensive motion to dismiss by the current
`deadline of September 19, 2023. Dispositive motion practice is highly likely to terminate this case
`and obviate the need for discovery, and thus provides good cause for the requested relief that
`discovery not start in this matter. See Actelion Pharms. Ltd. v. Apotex Inc., 12-cv-5743, 2013 WL
`5524078, at *3-7 (D.N.J. Sept. 6, 2013).
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`As Thermo Fisher and the other remaining defendants will demonstrate in their
`forthcoming motion, plaintiff Monib Zirvi’s lawsuit is frivolous and vexatious. It is an attempt to
`relitigate a matter that has already been litigated in the Southern District of New York. See Zirvi
`v. Flatley, No. 1:18-cv-07003 (the “SDNY Litigation”). In that action, the court, per the Honorable
`John G. Koeltl, dismissed Zirvi’s trade secret, fraud, conspiracy, and other claims, finding (i) that
`the statute of limitations had run on all of Zirvi’s claims, and (ii) that Zirvi had alleged no protectable
`trade secret. Zirvi v. Flatley, 433 F. Supp. 3d 448, 459-67 (S.D.N.Y. 2020). The Second Circuit
`affirmed. Zirvi v. Flatley, 838 F. App’x 582 (2d Cir. 2020).
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`As new versions of his prior claims, Zirvi’s claims are all barred under principles of claim
`preclusion. “Claim preclusion is designed to avoid piecemeal litigation of claims arising from the
`same events.” General Elec. Co. v. Deutz AG, 270 F.3d 144, 157-58 (3d Cir. 2001). “The doctrine
`of [claim preclusion] bars not only claims that were brought in a previous action, but also claims
`that could have been brought.” Duhaney v. Attorney General, 621 F.3d 340, 347 (3d Cir. 2010).
`The current action involves the same nexus of operative fact and the same or related causes of
`action as the prior action. Thermo Fisher and its affiliates were defendants in the prior the action.
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`Case 2:23-cv-01997-MCA-JSA Document 77 Filed 08/25/23 Page 2 of 2 PageID: 1679
`
`Honorable Jessica S. Allen, U.S.M.J.
`August 25, 2023
`Page 2
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`In both actions, Zirvi alleges a broad conspiracy (including, allegedly, Thermo Fisher’s attorneys)
`intended to deprive Zirvi of alleged property rights. All claims that Zirvi makes in this case either
`were made or could have been made in his New York action and he is now precluded from
`litigating them again against Thermo Fisher and its attorneys.
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`In addition to being barred by claim preclusion, Zirvi’s claims are mired in the same statute
`of limitations problems that resulted in the dismissal of his claims in the SDNY Litigation. The
`Southern District of New York and the Second Circuit found that any actionable claim Zirvi might
`have had expired long ago. In particular, the Southern District of New York determined, and the
`Second Circuit affirmed, that the relevant statutes of limitation began to run, at the very latest, in
`2010, and thus those statutes ran out, at the latest, in 2014. Zirvi, 433 F. Supp. 3d at 460-61;
`Zirvi, 838 F. App’x at 586-87. Because Zirvi himself permitted the statutes of limitations to run
`out before he alleges having had contact with Thermo Fisher and its attorneys, all of Zirvi’s claims
`against those parties will fail.
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`In view of these significant threshold issues, which are likely to be dispositive, discovery
`should be stayed pending resolution of the motions to dismiss. Zirvi will not be prejudiced by
`discovery not beginning prior to the resolution of motions to dismiss. Zirvi’s conduct demonstrates
`that there is no urgency to proceed with discovery now—Zirvi waited far too long to bring his stale
`claims and certainly too long to suggest that a short stay of discovery would cause him any
`prejudice. A stay of discovery will conserve the parties’ and judicial resources while the Court
`evaluates whether Zirvi’s latest set of claims should, like his earlier set, be dismissed.
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`Respectfully submitted,
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`s/Liza M. Walsh
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`Liza M. Walsh
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`All Counsel of Record (via ECF and Email)
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`cc:
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