`
`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
`
`