Case 2:23-cv-01997-MCA-JSA Document 93 Filed 10/04/23 Page 1 of 4 PageID: 2802
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`Ironside Newark
` 110 Edison Place, Suite 302
`Newark, New Jersey 07102
` Tel: 973.690.5400 Fax: 973.466.2761
`www.rwmlegal.com
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`October 4, 2023
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`VIA ECF
`Hon. Jessica S. Allen, U.S.M.J.
`United States District Court
`MLK Jr. Federal Bldg. and U.S. Courthouse
`50 Walnut Street
`Newark, NJ 07102
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`Re: Zirvi v. Illumina, Inc., et al.
`2:23-cv-1997-MCA-JSA
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`Dear Judge Allen:
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`My firm, along with Sidley Austin LLP, represents Defendant Illumina, Inc.
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`(“Illumina”) in the above-referenced matter.
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`The Court’s Letter Order dated July 11, 2023, provides that “[n]o motions,
`other than a motion under Fed. R. Civ. P. 12, shall be filed without prior leave of
`Court.” ECF No. 56. Pursuant to that Order, Illumina respectfully submits this letter
`to seek leave of Court to file a motion for sanctions under Federal Rule of Civil
`Procedure 11 prior to the Court’s decision on Illumina’s pending motion to dismiss.
`ECF Nos. 63, 63-1. The relevant motion papers are included as exhibits to this letter
`for the Court’s reference.
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`The Third Circuit has adopted “a supervisory rule for the courts in [this]
`Circuit” requiring “that all motions requesting Rule 11 sanctions be filed in the
`district court before the entry of a final judgment.” Mary Ann Pensiero, Inc. v.
`Lingle, 847 F.2d 90, 100 (3d Cir. 1988). District Courts, including Judge Arleo,
`have accordingly denied motions for sanctions as untimely even when such motions
`are filed very shortly after a dismissal. See, e.g., Cymonisse v. Fair Cap., LLC, No.
`20-2430, 2021 WL 1178653, at *4 (D.N.J. Feb. 24, 2021), report & recommendation
`adopted, 2021 WL 1175161 (D.N.J. Mar. 26, 2021) (Arleo, J.) (motion for sanctions
`filed two weeks after dismissal); Cresskill Volunteer First Aid Squad v. Borough of
`Cresskill, No. 05-3294, 2006 WL 8458352, at *1 (D.N.J. Jan. 25, 2006) (same). To
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`Case 2:23-cv-01997-MCA-JSA Document 93 Filed 10/04/23 Page 2 of 4 PageID: 2803
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`October 4, 2023
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`avoid running afoul of that supervisory rule, therefore, Illumina must file its motion
`for sanctions prior to the Court deciding the pending motion to dismiss.
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`The motion for sanctions is well founded. Illumina has made every effort to
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`avoid pursuing such a motion, having notified Plaintiff’s counsel multiple times of
`the fundamental and incurable problems with the allegations in the Complaint, and
`informing him that Illumina would seek sanctions if the Complaint was not
`withdrawn.
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`On June 1, 2023, Illumina first wrote to Plaintiff’s counsel and outlined the
`basis for the Rule 11 violations at issue. Illumina requested that Plaintiff withdraw
`the Complaint by June 15, 2023, warning that failure to do so would lead Illumina
`to pursue all available remedies and sanctions. That letter is attached as Exhibit 1 to
`the motion for sanctions. Illumina never received a response. See also Fed. R. Civ.
`P. 11, Advisory Committee’s Note to 1993 Amendment (“In most cases … counsel
`should be expected to give informal notice to the other party,” including by “letter[ ]
`of a potential violation before proceeding to prepare and serve a Rule 11 motion”).
`Other defendants likewise notified Plaintiff’s counsel of their intent to seek sanctions
`if the Complaint was not withdrawn. Plaintiff’s counsel did respond to the other
`defendants’ Rule 11 letter, and the response showed that this latest case in a decade
`of serial litigation has nothing to do with Illumina.
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`On August 2, 2023, Illumina filed its motion to dismiss and to strike. ECF
`Nos. 63, 63-1. Plaintiff’s opposition (ECF No. 78) largely failed to respond to
`Illumina’s arguments and made a number of concessions that confirm this case
`should be dismissed, as explained in Illumina’s reply brief (ECF No. 80).
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`On September 12, 2023, pursuant to Rule 11(c)(2), Illumina served its motion
`for sanctions and supporting brief and exhibits on Plaintiff’s counsel, via both
`overnight mail and email. Ex. A. Illumina’s motion and supporting brief again
`detailed why the claims alleged against Illumina are legally unreasonable and
`without factual foundation. The motion also highlighted additional bases for seeking
`sanctions in light of further developments since Illumina’s initial June 1 letter—
`namely, examples of repeated and egregious misconduct throughout the course of
`this litigation. In its cover letter that accompanied the motion, Illumina made clear
`that the service of its motion on Plaintiff’s counsel would be its final warning before
`raising these issues with the Court. Ex. A. Illumina also noted the lack of response
`to its initial June 1 letter, and the apparent unwillingness to resolve these issues.
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`October 4, 2023
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`The 21-day period for Plaintiff to withdraw the Complaint expired on
`October 3, 2023. Fed. R. Civ. P. 11(c)(2). Illumina has yet to receive a response to
`its September 12, 2023 cover letter and motion for sanctions, and Plaintiff has not
`withdrawn the claims against Illumina. That lack of response now compels Illumina
`to seek leave of Court to file its motion for sanctions.
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`Accordingly, Illumina respectfully requests that the Court grant leave to file
`its motion for sanctions under Rule 11, attached as exhibits hereto for the Court’s
`reference. If the Court grants the motion, Illumina will promptly file its motion, as
`the 21-day safe harbor provided by Rule 11(c)(2) has now expired.
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`Dated: October 4, 2023
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`Respectfully submitted,
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`/s/ Keith J. Miller
`Keith J. Miller
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`ROBINSON MILLER LLC
`Keith J. Miller
`Ironside Newark
`110 Edison Place, Suite 302
`Newark, NJ 07102
`Telephone: (973) 690-5400
`Fax: (973) 466-2761
`kmiller@rwmlegal.com
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`SIDLEY AUSTIN LLP
`Bradford J. Badke (pro hac vice)
`Ching-Lee Fukuda (pro hac vice)
`787 Seventh Avenue
`New York, NY 10019
`Telephone: (212) 839-5300
`Fax: (212) 839-5599
`jbadke@sidley.com
`clfukuda@sidley.com
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`CC: All counsel of record (via ECF)
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`SIDLEY AUSTIN LLP
`Joshua J. Fougere (pro hac vice)
`Adam Kleven
`1501 K Street NW
`Washington, DC 20005
`Telephone: (202) 736-8000
`Fax: (202) 736-8711
`jfougere@sidley.com
`akleven@sidley.com
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`Counsel for Defendant Illumina Inc.
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