Case 2:23-cv-01997-MCA-JSA Document 81 Filed 09/15/23 Page 1 of 2 PageID: 1882
`
`Joseph D. Garrity, Esq.
`101 N.E. THIRD AVENUE, SUITE 1800
`FORT LAUDERDALE, FLORIDA 33301
`(954) 462-8000
`www.loriumlaw.com
`
`September 15, 2023
`
`VIA E-FILING
`Honorable Madeline Cox Arleo, U.S.D.J.
`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.: 23-1997-MCA/JSA
`
`Your Honor Judge Allen,
`
`In response to the recent filing by Illumina of its Reply (ECF No. 80) to Plaintiff’s Response
`(ECF No.78) to the Motion to Illumina’s pending Motion to Dismiss (ECF No. 63), Plaintiff seeks leave
`to file a Sur-Reply as required by L. Civ. R. 7.1(d)(6) or alternatively for the Court to consider the points
`raised herein in further opposition to the Motion to Dismiss.
`
`Defendant Illumina on August 2, 2023, filed a Memorandum of Law titled:
`
`MEMORANDUM OF LAW IN SUPPORT OF ILLUMINA INC.’S
`MOTION TO DISMISS PLAINTIFF’S COMPLAINT,
`AND ILLUMINA INC.’S MOTION TO STRIKE
`
`Defendant chose to combine two Motions in one filing. Yet in its Reply, footnote 1, Illumina
`attempts to argue that:
`
`Plaintiff’s brief is in 12-point font. The local rules provide that, in ‘12-point
`proportional font,’ the page limit is 30 pages. L. Civ. R. 7.2(d). Plaintiff’s
`brief is thus out of compliance, and Plaintiff did not seek leave for more
`pages.
`
`This argument appears intellectually disingenuous where the local rules pertain to the filing a of a
`singular Motion and not two motions in one as Illumina chose to file. See, L. Civ. R. 7.1(b)(2) and (d)(2)
`which contemplate rules for a singular Motion. ((b)(2) “…Notice of Motion and all papers in support of
`or in opposition to the motion…. (d)(2) The brief and papers in opposition to a motion). Plaintiff’s
`Response to the combined two motions is well within the page limits.
`
`LORIUM LAW
`
`ATLANTA
`
` BOCA RATON
`
` CHICAGO
`
` FT. LAUDERDALE
`
`

`

`Case 2:23-cv-01997-MCA-JSA Document 81 Filed 09/15/23 Page 2 of 2 PageID: 1883
`
`Illumina’s argument that Plaintiff has inadequately alleged conspiracy by stating in a conclusory
`manner that allegations are insufficient because of a failure to allege intent with specificity, this argument
`is wrong as a matter of law. United States ex rel. Atkinson v. Pa. Shipbuilding Co., No. 94-CV-7316,
`2000 U.S. Dist. LEXIS 12081, at *39-40 (E.D. Pa. Aug. 24, 2000) (applying Rule 8 to conspiracy claim,
`finding “to survive a motion to dismiss on the conspiracy claim, the plaintiff's complaint need only
`describe the general composition of the conspiracy, some or all of its broad objectives, and [the]
`defendant's general role in that conspiracy.”); the Complaint clearly alleges, which for the purposes of
`evaluating a Motion to dismiss must be taken as true, Illumina, ThermoFisher, and Defendant Attorneys
`purporting to represent Plaintiff, Dr. Zirvi, engaged in a conspiracy that prevented him from timely
`bringing his claims related to personal recognition and royalties for the intellectual property described in
`the Complaint. This very specific claim was not part of any prior litigation. This very specific claim did
`not exist until the acts complained of were carried out several years past 2010. Moreover, the damages
`were not fait accompli until Zirvi v. Flatley (“the SDNY litigation”) had run its course.
`
`Illumina believes that the SDNY litigation is its shield against all further claims. Plaintiff’s
`Complaint details a conspiracy that was put in motion during the Cornell litigation by the Defendants for
`the explicit purpose of achieving the result obtained in the SDNY litigation. The Defendants never
`intended the SDNY litigation to be a shield, rather it was intended to be a sword that would end Dr.
`Zirvi’s valid claims once and for all. Now that Dr. Zirvi has brought claims directed at the orchestrated
`actions of the Defendants to achieve the outcome in the SDNY litigation as well as other harms bestowed
`upon Plaintiff by failing to recognize his inventive contribution, Illumina wants the Court to believe all
`these matters have been decided.
`
`As alleged, this was done in exchange for shared profits between Illumina and ThermoFisher in
`the “Ampliseq for Illumina” product line, a secret collaboration started during the Cornell litigation, and
`kept hidden from Cornell and Plaintiff Zirvi, as well as from Judge Stark in a potential fraud on the
`courts. The claims are not timed barred because the Parties continue to conspire beyond the joint
`opposition to Cornell’s Rule 60(b)(6) motion and the joint defense agreements in the SDNY case. After
`the SDNY case, Illumina and Thermo Fisher, in Zirvi v US NIH, continued to coverup their fraudulent
`actions and obstruct justice. (See Complaint ECF No. 1 Exhibits 5, 9, 12-14 and Response ECF No.78
`Exhibits 1-6). The claims are not timed barred because the damage continues even now. The clams are
`not barred by laches because equity cannot help those who come before the Court with unclean hands.
`
`All these points can be raised more properly in a formal Sur-Reply.
`
`WHEREFORE, Plaintiff specifically requests leave to file said Sur-Reply pursuant to L. Civ. R.
`7.1(d)(6) or alternatively for the Court to consider the points raised herein in further opposition to the
`Motion to Dismiss.
`
`Sincerely,
`
`Joseph D. Garrity, Esq.
`For The Firm
`
`LORIUM LAW
`
`ATLANTA
`
` BOCA RATON
`
` CHICAGO
`
` FT. LAUDERDALE
`
`

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.

We are unable to display this document.

HTTP Error 500: Internal Server Error

Refresh this Document
Go to the Docket