Case 1:12-cv-00086-TWP-DKL Document 62 Filed 05/30/13 Page 1 of 5 PageID #: 387
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`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`Case No. 1:12-cv-00086-TWP-DKL
`(consolidated)
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`ELI LILLY AND COMPANY,
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`Plaintiff,
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`v.
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`ACCORD HEALTHCARE, INC.,
`APOTEX, INC. and APOTEX CORP.,
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`Defendants.
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`PLAINTIFF ELI LILLY AND COMPANY’S MOTION TO CONSOLIDATE
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`Pursuant to Fed. R. Civ. P. 42(a) and Local Rule 42-1, Plaintiff Eli Lilly and Company
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`(“Lilly”), through undersigned counsel, respectfully requests that the Court consolidate this case
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`with Eli Lilly and Company v. Accord Healthcare, Inc., USA, Case No. 1:13-cv-00335-TWP-
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`DKL for all purposes. Defendants Apotex, Inc. and Apotex Corp. (“Apotex”) have indicated that
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`they do not oppose this motion. Defendant Accord Healthcare, Inc. (“Accord”) does not consent
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`to consolidation.
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`BACKGROUND
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`On January 20, 2012 and April 17, 2012, Lilly filed patent infringement actions against
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`Accord and Apotex as a result of their filings of Abbreviated New Drug Applications
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`(“ANDAs”) with the U.S. Food and Drug Administration (“FDA”) seeking approval to
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`manufacture and sell a generic version of Lilly’s ALIMTA® before the expiration of U.S. Patent
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`No. 7,772,209 (“the ’209 patent”). Dkt. No. 1, Civil Action No. 1:12-cv-00086-TWP-DKL; Dkt.
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`
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`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
`
`Case No. 1:12-cv-00086-TWP-DKL
`(consolidated)
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`ELI LILLY AND COMPANY,
`
`Plaintiff,
`
`v.
`
`ACCORD HEALTHCARE, INC.,
`APOTEX, INC. and APOTEX CORP.,
`
`Defendants.
`
`PLAINTIFF ELI LILLY AND COMPANY’S MOTION TO CONSOLIDATE
`
`Pursuant to Fed. R. Civ. P. 42(a) and Local Rule 42-1, Plaintiff Eli Lilly and Company
`
`(“Lilly”), through undersigned counsel, respectfully requests that the Court consolidate this case
`
`with Eli Lilly and Company v. Accord Healthcare, Inc., USA, Case No. 1:13-cv-00335-TWP-
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`DKL for all purposes. Defendants Apotex, Inc. and Apotex Corp. (“Apotex”) have indicated that
`
`they do not oppose this motion. Defendant Accord Healthcare, Inc. (“Accord”) does not consent
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`to consolidation.
`
`BACKGROUND
`
`On January 20, 2012 and April 17, 2012, Lilly filed patent infringement actions against
`
`Accord and Apotex as a result of their filings of Abbreviated New Drug Applications
`
`(“ANDAs”) with the U.S. Food and Drug Administration (“FDA”) seeking approval to
`
`manufacture and sell a generic version of Lilly’s ALIMTA® before the expiration of U.S. Patent
`
`No. 7,772,209 (“the ’209 patent”). Dkt. No. 1, Civil Action No. 1:12-cv-00086-TWP-DKL; Dkt.
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`
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`Case 1:12-cv-00086-TWP-DKL Document 62 Filed 05/30/13 Page 2 of 5 PageID #: 388
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`No. 1, Civil Action No. 1:12-cv-00499-TWP-DKL. These actions were consolidated on July 23,
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`2012 under Civil Action No. 1:12-cv-00086-TWP-DKL. With respect to Accord, the case
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`alleged infringement of the ’209 patent as a result of Accord’s filing of ANDA No. 203485 for
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`Accord’s Pemetrexed Disodium for Injection, 100 mg/Vial and 500 mg/Vial Products.
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`Accord subsequently notified Lilly that Accord had filed an amendment to ANDA No.
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`203485, seeking approval to manufacture and sell Accord’s Pemetrexed Disodium for Injection,
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`1000 mg/Vial Product (“Accord’s 1000 mg ANDA Product”), a generic version of ALIMTA® in
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`a larger vial, prior to the expiration of the ’209 patent. On February 28, 2013, following the
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`receipt of this notification, Lilly filed a second patent infringement action against Accord, also
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`asserting infringement of the ’209 patent, as a result of the amendment to ANDA No. 203485 for
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`Accord’s 1000 mg ANDA Product. Case No. 1:13-cv-00335-TWP-DKL, Dkt. No. 1.
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`Both cases are pending before Judge Pratt and have been assigned to Magistrate Judge
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`LaRue.
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`ARGUMENT
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`Rule 42(a) permits a court to consolidate cases that “involve a common question of law
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`or fact.” Fed. R. Civ. P. 42(a). “Rule 42 is designed to encourage the consolidation of actions
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`where a common question of law or fact is present and where consolidation would not cause
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`prejudice to any party.” Hansa Med. Prods., Inc. v. Bivona, Inc., Case Nos. IP-85-340-C, IP-85-
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`1056-C, 1987 WL 14496, *1 (S.D. Ind. Jan. 14, 1987). “Courts have consolidated cases for the
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`purpose of promoting convenience and judicial economy.” Id. The consolidation of cases
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`“conserves scarce judicial resources and promotes the efficient and comprehensive disposition of
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`cases.” McCracken v. Grand Victoria Casino & Resort, Case No. NA 02-143-C B/H, 2002 WL
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`31521165, *2 (S.D. Ind. Nov. 6, 2002) (quoting Ridge Gold Standard Liquors, Inc. v. Joseph E.
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`2
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`Case 1:12-cv-00086-TWP-DKL Document 62 Filed 05/30/13 Page 3 of 5 PageID #: 389
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`Seagram & Sons, Inc., 572 F. Supp. 1210, 1212-13 (N.D. Ill. 1983)). The decision to consolidate
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`under Rule 42 is “necessarily committed to the sound discretion of the trial court.” Hansa
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`Medical Prods., Inc., 1987 WL 14496, at *1.
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`Here, Case No. 1:12-cv-00086 and Case No. 1:13-cv-00335 should be consolidated
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`because the two cases present common questions of fact and law. The two cases are actions
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`alleging infringement of the same patent; both parties to Case No. 1:13-cv-00335, Lilly and
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`Accord, are parties to Case No. 1:12-cv-00086; and the parties are represented by the same
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`counsel in both actions. The questions of infringement and invalidity at issue in the two cases are
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`expected to be the same, as are the potential witnesses on both sides. The only expected
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`difference in subject matter between the two cases is the size of the vial in which the proposed
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`ANDA product is to be sold—a difference that is not expected to affect the analysis of
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`infringement or invalidity.
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`Consolidation will minimize the burden to all parties and this Court. Because the two
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`cases involve substantially the same issues and discovery, Lilly and Apotex agree that Case No.
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`1:13-cv-00335 can proceed according to the schedule and Case Management Plan already
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`adopted in Case No. 1:12-cv-00086. In addition, while Accord opposes consolidation, its counsel
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`has represented that Case No. 1:13-cv-00335 can proceed according to the existing schedule for
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`case No. 1:12-cv-00086. Thus, consolidation will eliminate unnecessary duplication without
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`causing any added inconvenience, delay, prejudice, or expense to any party.
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`After consultation with counsel for Defendants, it is Lilly’s understanding that Apotex
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`does not oppose this Motion for Consolidation. Accord does oppose consolidation.
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`3
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`Case 1:12-cv-00086-TWP-DKL Document 62 Filed 05/30/13 Page 4 of 5 PageID #: 390
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`RELIEF REQUESTED
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`For the foregoing reasons, Lilly respectfully requests that the Court consolidate this case
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`(Case No. 1:12-cv-00086) with Case No. 1:13-cv-00335, and that the Case Management Plan
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`and Scheduling Order entered with respect to Case No. 1:12-cv-00086 (Dkt. Nos. 58 & 60)
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`govern the consolidated action.
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`Dated: May 30, 2013
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`Respectfully submitted,
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`/s/ Jan M. Carroll__________
`Jan M. Carroll (4187-49)
`BARNES & THORNBURG LLP
`11 South Meridian Street
`Indianapolis, Indiana 46204
`(317) 236-1313
`jan.carroll@btlaw.com
`
`Bruce R. Genderson
`Adam L. Perlman
`Ellen E. Oberwetter
`Dov P. Grossman
`David M. Krinsky
`Megan A. Hughes
`Andrew V. Trask
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`(202) 434-5000
`(202) 434-5029 (Facsimile)
`bgenderson@wc.com
`aperlman@wc.com
`eoberwetter@wc.com
`dgrossman@wc.com
`dkrinsky@wc.com
`mhughes@wc.com
`atrask@wc.com
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`Attorneys for Plaintiff Eli Lilly and Company
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`4
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`Case 1:12-cv-00086-TWP-DKL Document 62 Filed 05/30/13 Page 5 of 5 PageID #: 391
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that a true and correct copy of the foregoing was served by the
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`Court’s ECF system on May 30, 2013 upon the following counsel of record:
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`James W. Riley
`RILEY BENNETT & EGLOFF, LLP
`141 East Washington Street,
`Fourth Floor
`Indianapolis, Indiana 46204
`(317) 636-8000
`(317) 636-8027
`jriley@rbelaw.com
`
`Michael R. Dzwonczyk
`Chidambaram S. Iyer
`Chandran B. Iyer
`SUGHRUE MION, PLLC
`2100 Pennsylvania Ave., N.W.
`Washington, DC 20037
`(202) 293-7060
`(202) 293-7860
`mdzwonczyk@sughrue.com
`ciyer@sughrue.com
`cbiyer@sughrue.com
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`Attorneys for Defendant
`Accord Healthcare, Inc., USA
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`.
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`INDS02 1272740v1
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`Sally Franklin Zweig
`Offer Korin
`Linda L. Vitone
`KATZ & KORIN, PC
`The Emelie Building
`334 North Senate Avenue
`Indianapolis, IN 46204-1708
`Tel: (31) 464-2626
`Fax: (317) 464-1111
`szweig@katzkorin.com
`
`William A. Rakoczy
`Paul J. Molino
`Rachel P. Waldron
`John D. Polivick
`Brian P. Murray
`RAKOCZY MOLINO MAZZOCHI SIWIK LLP
`6 West Hubbard Street, Suite 500
`Chicago, Illinois 60654
`Tel: (312) 222-6301
`Fax: (312) 222-6321
`wrakoczy@rmmslegal.com
`paul@rmmslegal.com
`rwaldron@rmmslegal.com
`jpolivick@rmmslegal.com
`bmurray@rmmslegal.com
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`Attorneys for Defendants
`Apotex Inc. and Apotex Corp.
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`_________________
`Jan M. Carroll
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`5
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`Case 1:12-cv-00086-TWP-DKL Document 62-1 Filed 05/30/13 Page 1 of 1 PageID #: 392
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`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`))
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`))
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`) Case No. 1:12-cv-00086-TWP-DKL
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`ELI LILLY AND COMPANY,
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`Plaintiff,
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`v.
`
`ACCORD HEALTHCARE, INC., USA,
`APOTEX INC., and APOTEX CORP.,
`
`Defendants.
`
`ORDER GRANTING PLAINTIFF’S MOTION TO CONSOLIDATE
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`This matter came before the Court on the motion of Plaintiff Eli Lilly and Company to
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`consolidate Eli Lilly and Company v. Accord Healthcare Inc., USA, Case No. 1:13-cv-00335-
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`TWP-DKL, with this action for all purposes. Being duly advised, and for good cause, IT IS
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`HEREBY ORDERED that:
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`1.
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`2.
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`Plaintiff’s Motion to Consolidate is GRANTED;
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`Eli Lilly and Company v. Accord Healthcare Inc., USA, Case No. 1:13-cv-00335-
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`TWP-DKL, is hereby consolidated with this action for all purposes; and
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`3.
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`The Case Management Plan and Scheduling Order entered in this case, Dkt. Nos.
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`58 and 60, shall govern the consolidated action.
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`Date: ____________________
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`Distribution by ECF
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`_______________________________________
`Judge Tanya Walton Pratt
`United States District Court
`Southern District of Indiana
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