`
`TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP
`William H. Trousdale
`3 Becker Farm Road, Suite 402
`Roseland, New Jersey 07068
`Tel: (908) 622-3000
`Email: wtrousdale@tompkinsmcguire.com
`
`LATHAM & WATKINS LLP
`Charles H. Sanders (pro hac vice)
`200 Clarendon St.
`Boston, MA 02116
`Tel: (617) 948-6000
`Email: charles.sanders@lw.com
`
`Attorneys for Defendants
`Latham & Watkins LLP, Roger Chin,
`and Douglas Lumish
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`
`v.
`
`
`MONIB ZIRVI, M.D., Ph. D.,
`
`Plaintiff,
`
`
`
`
`
`ILLUMINA, INC., THERMO FISHER
`SCIENTIFIC, AKIN GUMP STRAUSS
`HAUER & FELD LLP, LATHAM &
`WATKINS, RIP FINST, SEAN BOYLE,
`MATTHEW A. PEARSON, ANGELA
`VERRECCHIO, ROGER CHIN, and
`DOUGLAS LUMISH,
`
`Defendants.
`
`
`
`
`
`
`
`
`
`Case No: 23-cv-01997 (MCA) (JSA)
`
`Hon. Madeline Cox Arleo
`
`Oral Argument Requested
`
`Motion Date: October 16, 2023
`
`
`
`
`LATHAM DEFENDANTS’
`REPLY IN SUPPORT OF THEIR
`MOTION TO DISMISS
`
`
`
`Case 2:23-cv-01997-MCA-JSA Document 97 Filed 10/10/23 Page 2 of 6 PageID: 2899
`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`Page(s)
`
`D’Ambly v. Exoo,
`No. 20-12880, 2021 WL 5084364 (D.N.J. Nov. 1, 2021) .........................................................2
`
`Hass v. Sacramento Cnty. Dep't of Support Servs.,
`No. 2:13-cv-01746, 2013 WL 6844754 (E.D. Cal. Dec. 20, 2013) ...........................................2
`
`Rachlin v. Baumann,
`No. 21-15343, 2022 WL 4239790 (D.N.J. Feb. 22, 2022) ........................................................1
`
`SCE Group, Inc. v. Garson,
`No. 21-CV-19944, 2022 WL 2952985 (D.N.J. July 26, 2022)..................................................3
`
`Speeney v. Rutgers,
`673 F. App’x 149 (3d Cir. 2016) ...............................................................................................1
`
`Vance v. Scerbo,
`No. A-2019-17T4, 2019 WL 960245 (N.J. Super. Ct. App. Div. Feb. 26,
`2019) ..........................................................................................................................................3
`
`Wells Fargo Bank v. Lichter Gateway IV, LLC,
`No. 17-2036, 2017 WL 5957072 (D.N.J. Dec. 1, 2017) ............................................................2
`
`Zahl v. Eastland,
`465 N.J. Super. 79 (App. Div. 2020) .........................................................................................3
`
`
`
`
`
`
`
`
`
`Case 2:23-cv-01997-MCA-JSA Document 97 Filed 10/10/23 Page 3 of 6 PageID: 2900
`
`In opposing the Latham Defendants’ Motion to Dismiss, Plaintiff Zirvi does
`
`not contest that (1) he was told that the Latham Defendants did not represent him
`
`and had engaged his own attorney and, (2) if there was any representation (there was
`
`not), it was as a third-party beneficiary of Cornell’s engagement of Latham. As such,
`
`even if Zirvi had adequately pled that the Latham Defendants represented him,
`
`California law would apply and bar his claims. This Court should dismiss the
`
`Latham Defendants.
`
`
`
`Zirvi’s opposition confirms that he knew that the Latham Defendants never
`
`represented him. He bases his malpractice claims against the Latham Defendants on
`
`alleged advice to pursue a claim for “trade secret theft … in April of 2017.” ECF
`
`No. 92 at 31. But Zirvi already knew he did not have an attorney-client relationship
`
`with the Latham Defendants. Speeney v. Rutgers, 673 F. App’x 149, 154 (3d Cir.
`
`2016) (no attorney-client relationship where purported client “relied on their own
`
`lawyers” and called other lawyers “his attorney[s]”). On March 31, 2017, Zirvi
`
`wrote that he “reserve[d] the right to act [as] advised by [his non-Latham] attorney”
`
`after being expressly told that Latham was “engaged to represent Cornell’s
`
`interests”—not Zirvi’s interests. ECF No. 84-4 (Ex. B).1
`
`
`1 Where, as here, a document (ECF No. 92-2 at 264) is central to the issues and relied
`upon by Plaintiff, it is appropriate to consider it on a motion to dismiss. See, e.g.,
`Rachlin v. Baumann, 2022 WL 4239790, at n.3 (D.N.J. Feb. 22, 2022) (“central”
`document of which “Plaintiff was undoubtedly aware”); Wells Fargo Bank v. Lichter
`
`1
`
`
`
`Case 2:23-cv-01997-MCA-JSA Document 97 Filed 10/10/23 Page 4 of 6 PageID: 2901
`
`Because Zirvi fails to identify facts sufficient to show representation by
`
`Latham Defendants, his claims must be dismissed under New Jersey or California
`
`law. D’Ambly v. Exoo, 2021 WL 5084364, at *3 (D.N.J. Nov. 1, 2021) (malpractice
`
`claim dismissed for failure to plead an attorney-client relationship); Hass v.
`
`Sacramento Cnty. Dep’t of Support Servs., 2013 WL 6844754, at *3-4 (E.D. Cal.
`
`Dec. 20, 2013) (same). Zirvi’s “260 pages” of emails merely show that he received
`
`emails about the patents Cornell asserted against Illumina on which Zirvi was a
`
`named inventor, but he points to nothing in any of these emails that evidence an
`
`attorney-client relationship between him and Latham. ECF No. 92 at 13.
`
`
`
`Zirvi admits that he “did not sign” Latham’s engagement agreement with
`
`Cornell and Thermo Fisher (because he never was Latham’s client). ECF No. 92 at
`
`43. Zirvi instead alleges that he was a third-party beneficiary of Cornell’s assertion
`
`of the patents naming him as a co-inventor, alleging that, as “a co-inventor,” he “had
`
`an economic and reputational interest.” ECF No. 92-4 ¶ 12; ECF No. 1 ¶¶ 9-23. But
`
`Zirvi does not contest that, if he became Latham’s client as a third-party beneficiary
`
`of Latham’s representation of Cornell (which he did not), then he would have been
`
`bound by the agreement’s choice of law clause. Zirvi does not contest that California
`
`law thus would apply and bar his claims. As a result, even if he pled facts to show
`
`
`Gateway IV, LLC, 2017 WL 5957072, at *16 (D.N.J. Dec. 1, 2017) (Plaintiff had
`“actual notice” of and “relied upon” documents).
`2
`
`
`
`
`Case 2:23-cv-01997-MCA-JSA Document 97 Filed 10/10/23 Page 5 of 6 PageID: 2902
`
`an attorney-client relationship (he did not), his claims still fail as matter of law.
`
`Zirvi’s response to the Latham Defendants’ venue and jurisdiction arguments
`
`is conclusory. ECF No. 92 at 43. His complaint does not allege a single instance of
`
`the Latham Defendants visiting or performing work in New Jersey.2 Zirvi’s cases
`
`are inapt because they involved alleged representation in a New Jersey court. Vance
`
`v. Scerbo, 2019 WL 960245, at *2-3 (N.J. Super. Ct. App. Div. Feb. 26, 2019) (out-
`
`of-state attorney filed a lawsuit in NJ); Zahl v. Eastland, 465 N.J. Super. 79 (App.
`
`Div. 2020) (same). By contrast, here Zirvi alleges Latham represented him in the
`
`Delaware Litigation and, at most, that he exchanged emails with the Latham
`
`Defendants while living in New Jersey, which is insufficient. SCE Group, Inc. v.
`
`Garson, which Zirvi cites (ECF No. 92 at 35), held that there was no jurisdiction for
`
`a legal malpractice claim based on normal incidents of legal representation with a
`
`New Jersey plaintiff. 2022 WL 2952985 at *6 (D.N.J. July 26, 2022).
`
`Accordingly, the Court should dismiss the Latham Defendants for the reasons
`
`set forth in the Joint Motion to Dismiss and Latham Defendants’ Motion to Dismiss.
`
`
`
`
`2 Zirvi notes a single instance of work he alleges supports jurisdiction–“submitting
`the declaration of Dr. Zirvi in IPR2016-00557” (ECF No. 92 at 36)–but the Latham
`Defendants were not counsel in that Patent Office action in Virginia. See Ex. C.
`3
`
`
`
`
`Case 2:23-cv-01997-MCA-JSA Document 97 Filed 10/10/23 Page 6 of 6 PageID: 2903
`
`Dated: October 10, 2023
`
`
`
`
`
`Respectfully submitted,
`
`
`TOMPKINS, MCGUIRE,
`WACHENFELD & BARRY, LLP
`
`By: /s/ William H. Trousdale
`William H. Trousdale
`Michael S. Miller
`Jared P. DuVoisin
`TOMPKINS, MCGUIRE,
`WACHENFELD & BARRY LLP
`3 Becker Farm Road, Suite 402
`Roseland, NJ 07068
`Tel: (908) 622-3000
`Email:
`wtrousdale@tompkinsmcguire.com
`mmiller@tompkinsmcguire.com
`jduvoisin@tompkinsmcguire.com
`
`Charles H. Sanders
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`Tel: (617) 948-6000
`Email: charles.sanders@lw.com
`
`Michelle L. Ernst
`LATHAM & WATKINS LLP
`1271 Avenue of the Americas
`New York, NY 10020
`Tel: (212) 906-1200
`Email: michelle.ernst@lw.com
`Attorneys for Defendants
`Latham & Watkins LLP, Roger Chin,
`and Douglas Lumish
`
`4
`
`
`