`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`______________________________
`SENJU PHARMACEUTICAL CO., LTD.,
`BAUSCH & LOMB, INC., and
`BAUSCH & LOMB PHARMA CORP.,
`Plaintiffs,
`
`vs.
`
`METRICS, INC., COASTAL
`PHARMACEUTICALS, INC., MAYNE
`PHARMA GROUP LIMITED, and
`MAYNE PHARMA (USA), INC.
`
`CIVIL ACTION
`NO. 14-3962 (JBS)
`
`Defendants.
`______________________________
`UNITED STATES COURTHOUSE
`ONE JOHN F. GERRY PLAZA
`4TH AND COOPER STREETS
`CAMDEN, NEW JERSEY 08101
`FRIDAY, OCTOBER 3, 2014
`
`B E F O R E:
`
`THE HONORABLE JEROME B. SIMANDLE
`CHIEF JUDGE
`UNITED STATES DISTRICT JUDGE
`
`A P P E A R A N C E S:
`
`PEPPER HAMILTON, LLP
`BY: MELISSA ANNE CHUDEREWICZ, ESQUIRE
`301 Carnegie Center
`Suite 400
`Princeton, New Jersey 08543-5276
`(609) 452-0808
`chuderewiczm@pepperlaw.com
`ATTORNEYS FOR PLAINTIFFS
`
`LISA MARCUS, RMR, CRR
`CERTIFICATE # 1492
`OFFICIAL U. S. REPORTER
`
`United States District Court
`Camden, New Jersey
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`SENJU EXHIBIT 2004
`METRICS v. SENJU
`IPR2014-01041
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`Page 1 of 119
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`A P P E A R A N C E S:
`
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
`BY: CHARLES E. LIPSEY, ESQUIRE
`Two Freedom Square
`11955 Freedom Drive
`Reston, Virginia 20190-5675
`(571) 203-2700
`charles.lipsey@finnegan.com
`ATTORNEYS FOR PLAINTIFFS
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
`BY: JUSTIN J. HASFORD, ESQUIRE
`-AND-
`BRYAN C. DINER, ESQUIRE
`901 New York Avenue, NW
`Washington, DC 20001-4413
`(202) 408-4000
`justin.hasford@finnegan.com
`bryan.diner@finnegan.com
`ATTORNEYS FOR PLAINTIFFS
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
`BY: JESSICA LEBEIS, ESQUIRE
`3500 Sun Trust Plaza
`303 Peachtree Street, NE
`Atlanta, Georgia 30308-3263
`(404) 653-6400
`jessica.lebeis@finnegan.com
`ATTORNEYS FOR PLAINTIFFS
`DUANE MORRIS,LLP
`BY: SANDRA A. JESKIE, ESQUIRE
`30 South 17th Street
`Philadelphia, Pennsylvania 19103-4196
`(215) 979-1395
`jeskie@duanemorris.com
`ATTORNEYS FOR DEFENDANTS
`DUANE MORRIS,LLP
`BY: MATTHEW C. GAUDET, ESQUIRE
`1075 Peachtree Street, NE
`Suite 2000
`Atlanta, Georgia 30309-3929
`(404) 253-6902
`mcgaudet@duanemorris.com
`ATTORNEYS FOR DEFENDANTS
`
`United States District Court
`Camden, New Jersey
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`A P P E A R A N C E S:
`DUANE MORRIS, LLP
`BY: VINCENT L. CAPUANO, ESQUIRE
`100 High Street, Suite 2400
`Boston, Massachusetts 02110-1724
`(857) 488-4250
`vcapuano@duanemorris.com
`ATTORNEYS FOR DEFENDANTS
`DUANE MORRIS, LLP
`BY: PATRICK D. MCPHERSON, ESQUIRE
`505 9th Street, NW
`Suite 1000
`Washington, DC 20004-2166
`(202) 776-5214
`pdmcpherson@duanemorris.com
`ATTORNEYS FOR DEFENDANTS
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`United States District Court
`Camden, New Jersey
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`DEPUTY CLERK: All rise.
`THE COURT: Be seated, please.
`Good morning, everybody. This is the case of Senju
`Pharmaceutical Company Limited vs. Metrics Incorporated, et
`al. Limited, Civil Action No. 14-3962. And today's the
`hearing date on two motions, one is the motion by the
`defendants to dismiss for lack of personal jurisdiction and
`one is the motion by the plaintiffs for an injunction against
`the inter partes review.
`And I'll ask counsel to please enter your appearances
`for the record beginning with the plaintiffs.
`MS. CHUDEREWICZ: Good morning, your Honor.
`Melissa Chuderewicz from the law firm of Pepper
`Hamilton serving today as local counsel for the plaintiffs.
`Here with me today, also counsel for the plaintiffs from the
`law firm of Finnegan, Henderson, Farabow, Garrett & Dunner are
`Charles Lipsey, Mr. Lipsey will be arguing the motion for an
`injunction; Justin Hasford, Mr. Hasford will be arguing
`defendant's motion to dismiss; Brian Diner and Jessica Lebeis.
`THE COURT: Welcome.
`MS. JESKIE: Good morning, your Honor.
`THE COURT: Ms. Jeskie?
`MS. JESKIE: Sandra Jeskie on behalf of the
`defendants, from Duane Morris. And my partner Matt Gaudet,
`Vincent Capuano, and Pat McPherson. Mr. Gaudet will be
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`United States District Court
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`arguing the motion to dismiss and Mr. Capuano will be arguing
`against the motion to enjoin.
`THE COURT: Okay. Fine. Thank you.
`Well, you've given me an interesting case here.
`Logically I have to determine who I have jurisdiction over
`first. Even though that wasn't the order in which the motions
`were filed, if I were to entertain an injunction, I have to
`make sure that whoever I'm enjoining is under the jurisdiction
`with the Court. Hopefully everyone agrees with that
`principle.
`Personal jurisdiction is somewhat in dispute, and the
`plaintiffs have sought some personal jurisdiction discovery.
`It would seem that with regard to those disputes, that
`discovery, upon reading your papers, would be helpful if it's
`short and precise and tailored to the issues of personal
`jurisdiction. And that then I could permit, you know, a short
`round of supplemental briefing on the personal jurisdiction
`issues if there remain disputes. If personal jurisdiction is
`conceded or if the plaintiff concedes that there is personal
`jurisdiction, then that narrows the disputes. And after your
`supplemental briefing, then I'd be in a position to decide the
`personal jurisdiction motion, and I'd be in a position to
`decide the injunction assuming that there is jurisdiction.
`So in general terms, and I'm open to your suggestions
`on this because you've lived with this case now, I think today
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`United States District Court
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`can most profitably be spent by starting with the issue, if
`there is one, of discovery of personal jurisdiction. I think
`that there's two parties that there might not be a legitimate
`dispute about personal jurisdiction, I'd like to test that
`theory on the audience. And I'd like to then, assuming there
`is discovery, set what it is to comprise and how quickly it's
`to be done and set a briefing schedule for supplemental
`briefing on the personal jurisdiction issue.
`Since you're here and you're ready to argue and you've
`already fully briefed the injunction issue, I'm prepared to
`hear your arguments on it, of course; I don't think those
`arguments will change depending on the personal jurisdiction,
`assuming that there is personal jurisdiction. And so if you
`would like, I'm certainly prepared and happy to hear the
`arguments, but I don't think that I can decide or rule on the
`injunction motion before I rule on the personal jurisdiction
`motion.
`
`So that's the overall plan that I'm proposing. Do you
`want to speak to it, Mr. Lipsey?
`MR. LIPSEY: At the risk of stealing Mr. Hasford's
`thunder, there's really only one party here who's essential to
`this case going forward and essential to the injunction, and
`that's Metrics. And Metrics is the party that's registered to
`do business and has an agent and unconditionally accepted
`service of process, and I think the Court would be in a
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`United States District Court
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`position to determine that there was at least jurisdiction
`over the essential parties here and certainly the party
`against whom the injunction ought to run if the Court were so
`inclined.
`
`THE COURT: Well, it seems that there may be
`personal -- but there is personal jurisdiction over Metrics if
`their representative was served as required, and they were
`served according to the record, and that under the New Jersey
`court rules that's good service, isn't it?
`MR. GAUDET: Your Honor, I would like to address
`that, that's a purely legal point, and respectfully that's
`actually not the law. The New Jersey courts say that that --
`THE COURT: Wait. An out of state corporate
`representative --
`MR. GAUDET: Correct.
`THE COURT: -- who names a representative in New
`Jersey for service of process and that representative is
`served is subject to the Court's jurisdiction. That's why
`that pattern is set up, isn't it?
`MR. GAUDET: Your Honor, respectfully, it's not. The
`cases actually say that is sufficient to satisfy Rule 4, which
`means that you have effected service, but it is not sufficient
`to satisfy Daimler and demonstrate there's actual general
`jurisdiction over the entities. And in part Daimler has
`changed the law somewhat on that, but the cases that they cite
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`United States District Court
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`that suggest that gets you personal jurisdiction have nothing
`to do with due process. Those cases are talking about
`satisfying Rule 4 and Rule 4 alone. And if I might --
`THE COURT: Isn't Metrics present in the state
`through its representative?
`MR. GAUDET: Not for purposes of general
`jurisdiction, your Honor. Presence is no longer the test.
`Metrics has an employee. Metrics has a registered agent. But
`we have to have a registered agent because we're registered to
`do business and we have to register to do business to do the
`bare minimum, to do any business in New Jersey. And what
`Daimler says very clearly and very specifically is even a
`continuous systematic substantial connection to the forum
`state is not good enough for general jurisdiction. Would be
`good enough for specific jurisdiction but there's no
`allegation of specific jurisdiction here.
`And so the fact that we have an agent, and the agent
`was just served, there's no unconditional waiver of anything,
`all that reflects is that we've complied with the statute that
`you have to comply with to conduct the bare minimum of
`business. And there actually is a New Jersey federal case
`that says specifically service on an agent does not confer
`jurisdiction. And that's -- your Honor, we cited that case in
`our brief and that cite, your Honor, is, I'll give you that,
`Atkinson Mullen vs. New York Apple Tours, it was decided in
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`1998, and it's perfectly consistent with the line of cases
`that go exactly to that point. The cases they cite in their
`brief are simply talking about -- and in fact I can present to
`the Court, after we read their sur-reply, there were three
`other cases where the New Jersey courts say very specifically
`satisfying the rule under New Jersey for service is not the
`same thing as satisfying the Fourteenth Amendment.
`And let me give you those cites as well, your Honor.
`Those cites are the CitiBank vs. Estate of Simpson, 290 N.J.
`Super 519 or 676 A.2d 172; the Krishanti vs. Rajaratnan case,
`which is 2014 U.S. District LEXIS 131397; and also the
`Nehemiah vs. Athletics Congress of USA case, which is 765 F.2d
`42, all of them say exactly the same thing, which is if you
`serve an agent and you comply with the New Jersey statute all
`that means is you've satisfied Rule 4 that that -- so the case
`can start. That does not mean that there is process that has
`been served sufficiently under the Fourteenth Amendment.
`And the last point I want to make about this is Daimler
`is very clear that the California statute purported to extend
`jurisdiction as far as you conceivably could extend it, and it
`said for general jurisdiction there are two paradigmatic cases
`where you can have jurisdiction over a non-U.S. or sister
`state corporation, that's place of incorporation and place of
`headquarters, it didn't say or any of the probably dozens of
`other states that you're registered to do the bare minimum
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`United States District Court
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`amount of service are therefore required to have a registered
`agent. That would in effect turn Daimler into largely
`irrelevance and footnote because, again, registration and
`having an agent simply demonstrates the absolute bare minimum,
`which wouldn't be enough even under the old regime and
`certainly isn't enough under the notion of uniqueness, of a
`unique connection to the forum.
`THE COURT: Okay. Fine. Then why don't we go ahead
`with my plan, that we would have a period of discovery so that
`the Daimler test can be applied to the matters and the
`plaintiff will have an opportunity to fill things out.
`Yes, Mr. Hasford?
`MR. HASFORD: Thank you, your Honor.
`If I may, I'd like to address a few of the
`misstatements that counsel just made.
`The case that he cites -- first off, the case he cited,
`the Atkinson case, does not in fact say what he says it says.
`The case says, "Indeed, sister courts have held that
`registrations to do business within the state without more
`does not suffice to satisfy the criteria to the exercise of
`general jurisdiction." It does not in fact say that
`unconditional acceptance of process is not sufficient.
`That point actually was made by this court, your Honor,
`in the Signs by Tomorrow by GW Engle case in 2006, again in
`that case it says, and I quote, New Jersey Court Rule 4:4-4
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`governs service of process in New Jersey state courts. In
`particular New Jersey Court Rule 4-4(a)(6) provides that
`personal jurisdiction can be obtained over a defendant
`corporation by serving a copy of the summons and complaint in
`the manner prescribed by Paragraph (a)(1) of this ruling. It
`goes on to say that can be accepted by the authorized agent.
`The case also states that this applies in federal court
`through Federal Rule of Civil Procedure 4. So we strongly
`disagree with his characterization of these cases, your Honor.
`The other thing is the Daimler and Goodyear paradigm
`that he laid out is an independent pathway to general
`jurisdiction, we allege here that there is both general and
`specific jurisdiction. But this independent pathway, what
`we're pointing to here is that they accepted service of
`process and by the unconditional acceptance of service through
`their registered state agent, that is in fact another pathway
`to jurisdiction and that satisfies jurisdiction in this case.
`I'm happy to proceed, but --
`THE COURT: What about the CitiBank, Krishanti, and
`Nehemiah cases?
`MR. HASFORD: Okay. They did not cite the CitiBank
`case in their briefing, your Honor. We address the Krishanti
`case in our brief -- and I can point that out, it was in our
`sur-reply. And I would point your Honor to Pages 3 through 4
`of our sur-reply. In the Krishanti case none of the
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`defendants was in fact registered to do business in New Jersey
`and service was in fact not effectuated upon a registered
`agent in New Jersey. And in fact in Krishanti the Court
`explicitly rejected the argument that various activities years
`in the past cannot establish general jurisdiction, and that's
`an argument the defendants are trying to make sure. So the
`Krishanti case really doesn't apply and in fact it cuts
`against them.
`And I apologize, I didn't catch that third case that
`your Honor mentioned.
`THE COURT: Nehemiah.
`MR. HASFORD: I'm not certain if they cited that case
`in their briefing either, your Honor.
`The point here is that unconditional acceptance by the
`registered state agent establishes consent to personal
`jurisdiction as a matter of law. And Daimler and Goodyear
`simply don't address the issue of consent, they didn't need to
`because the Supreme Court addressed that way back in the day
`in Pennsylvania Fire Insurance. It's a case that in some
`senses is square on with this one in that you had out of state
`corporations, you had a Colorado entity and you had an Arizona
`entity and it dealt with a fire that happened in Colorado and
`an insurance policy directed to that Colorado building. And
`suit was brought in Missouri because the defendant was
`registered to do business in the State of Missouri and the
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`defendant unconditionally accepted service of process through
`their Missouri state agent. And the Supreme Court held that
`that satisfied the constitutional retirements of due process.
`That case has not been modified. It's not been reversed.
`It's not been vacated. It's not been abrogated. It's not
`been overturned in any way by Daimler or Goodyear or any other
`case, your Honor.
`MR. GAUDET: Your Honor, just a handful of points in
`rebuttal, if I may.
`I will start at the end. The case he just cited was
`decided in 1917 by the Supreme Court. The Neirbo case was
`then decided in 1939, and that was a case they cited in their
`brief, that was six years before International Shoe --
`THE COURT: Slow down, please. Everyone will have
`plenty of time.
`MR. GAUDET: Thank you. Thank you. I'll start over.
`The Pennsylvania Fire case that he cited was a 1917
`Supreme Court case. There was then another decision about,
`oh, 22 years later, the Neirbo case, which was just looking at
`the question of if federal courts have authorization based on
`the Congressional statute did service by an agent satisfy the
`Congressional statute. Then six years later in 1945
`International Shoe was decided and this whole notion of
`minimum contact came into the law. Seven years after that the
`Supreme Court decided the Perkins case, this is Perkins vs.
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`Benguet, B-E-N-G-U-E-T, Consolidated at 342 U.S. 437, and they
`said "appointment of agent per a state requirement is not
`conclusive of personal jurisdiction." So the notion that
`Pennsylvania Fire survives not only International Shoe but
`then comes forward under Daimler is not justified by the
`cases.
`
`Two other points very quickly.
`THE COURT: Well, appointment of a representative
`isn't what we're talking about here, we're talking about
`service on a representative of the parties. And so why isn't
`that consent by the party to be served and appear in that
`court?
`
`MR. GAUDET: Your Honor, I believe that that case
`treats the two as the same as the agent has been served. But
`the notion of unconditional waiver of service and all of that,
`all that happened here is we were served, is that a server
`showed up and served a registered agent. And when you look at
`the Daimler analysis, it is so -- it is so focused on the
`notion of uniqueness and being at home, that's something that
`necessarily follows. In other words, it's once you appoint an
`agent, then anybody can go serve that agent. There's
`nothing -- there are no more facts. We don't do anything. We
`don't make ourselves any more central, any more at home. So
`the fact that they went to that agent and served it, doesn't
`add anything more to the analysis.
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`And I also -- what counsel described as a
`mischaracterization, I want to go back there for a second. I
`think the case said what I said, which is that appointment of
`a -- complying with the statute isn't by itself enough. But I
`also want to eliminate any doubt about what the cases that I
`cited said given that remark. The -- this is CitiBank vs.
`Estate of Simpson --
`MR. HASFORD: And we're going to object, your Honor,
`they didn't include this in their brief and they didn't
`provide us with a copy of these slides before this hearing.
`THE COURT: All right. The objection is sustained.
`You can't show up after all this briefing with new case law
`and expect me to make sense of it, can you?
`MR. GAUDET: Your Honor --
`THE COURT: Or were they cited? Has it been
`overlooked?
`MR. GAUDET: These -- CitiBank and Nehemiah, I don't
`believe were cited. We were putting this --
`THE COURT: Those are the two cases on your slides.
`MR. GAUDET: Yes.
`THE COURT: So the objection is sustained.
`MR. GAUDET: Okay. Your Honor, as we --
`THE COURT: Is there a conspiracy to keep the Court
`in the dark as to what the parties' positions are in this
`case? There's been so much briefing and so much scuffling
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`about what the basic facts and what the basic law is, and I
`don't know who's responsible but it's very difficult to figure
`out. I made a chart. I would like to hand out the chart
`because the briefing is so scattered and so unhelpful on the
`relationship of these parties, I've tried to diagram it to the
`best of my ability. It is extremely difficult for me. Maybe
`the attorneys, especially the attorneys for the defense who
`seem to claim your parties are nowhere, can please help me.
`So please pass it out.
`Now, what I asked my law clerk to pass out is a diagram
`and it's a diagram that tries to diagram where the disputes
`are, they are marked with a D, it tries to trace what the
`parties' arguments are with regard to the relationships of the
`various parties. Some of the names are in regular print and,
`as far as I know, they are still existing entities. Some are
`in grayed out gray print, which I believe are no longer in
`existence by that name.
`MR. GAUDET: Your Honor?
`THE COURT: Yes.
`MR. GAUDET: And I -- in an effort, as I was going
`back through the briefs as well to be able to see -- that the
`common names make this very confusing, your Honor, we
`absolutely agree. We've put together a chart that I think
`gets at these same relationships but it comes directly -- it's
`a demonstrative that comes directly from the Cross
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`declarations that are already in the record. If I could show
`you the chart that we have done, it might help to bring
`clarity to the facts. But again, if you'd rather us work from
`this chart, we'll certainly do that, your Honor.
`THE COURT: Well, in fairness, you've not seen this
`chart, neither side has before this morning, it didn't exist
`before last night. And so whichever chart is more helpful to
`accurately portraying the status of the parties' arguments and
`accurately portraying what the relationships are of the
`parties, that would be helpful. If there's something
`inaccurate on my chart, then please let me know as the morning
`goes by and I'll be glad to correct it. I have my own
`annotated versions of the chart that reminds me of where all
`these things come from in the record.
`MR. GAUDET: Your Honor, if I might propose, I'll
`work from the chart that we've prepared. And we've got --
`THE COURT: Okay.
`MR. GAUDET: -- its copies in a larger deck. And we
`certainly don't want to bring forward something that an
`objection has been sustained to, but I can bring up a copy of
`the deck and we can work from this or I can work from the
`ELMO, whatever would be -- let me work from the ELMO for the
`time being.
`THE COURT: Okay.
`MR. GAUDET: All of these facts are taken from the
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`two Cross declarations that are in the record.
`On the right of the chart is simply the corporate
`organization of the defendants that have something to do with
`this ANDA application. That is to say the parent company, the
`three companies in red are the three defendants, three named
`defendants that have been sued. Mayne Pharma Group Limited is
`the parent company. Above that Halcygen Pharmaceuticals was
`the prior name but it changed its name, but Mayne Pharma is
`the parent. So everything on the right is us. Everything on
`the left we are completely unrelated to.
`So working down to Mayne Pharma, Mayne Pharma's
`wholly-owned subsidiary, Metrics, Inc., which is a North
`Carolina corporation registered -- incorporated in North
`Carolina and headquartered in North Carolina, is also a named
`defendant.
`Then working -- that company has two d/b/a
`registrations.
`THE COURT: All right. Just a moment.
`MR. GAUDET: Yes.
`THE COURT: So Mayne Pharma Group -- Mayne Pharma
`Group you're saying is a North Carolina corporation and
`headquartered in North Carolina?
`MR. GAUDET: I'm sorry, your Honor. I went too
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`quickly.
`No, your Honor, the top red -- so the second from the
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`top, Mayne Pharma limited, is an Australian corporation
`headquartered in Australia. It has several -- it has a lot of
`other subsidiaries that aren't up here. But it's an
`Australian company. It's got an Australian -- an ABN, an
`Australian business number, I think is the acronym. It is
`based in Australia. Its U.S. subsidiaries, or some of them,
`are immediately below. Metrics, Inc., is one of its U.S.
`subsidiaries, that's the entity that counsel suggested was the
`one crucial entity, that's wholly-owned by Mayne Pharma Group
`Limited, it's a North Carolina corporation headquartered in
`North Carolina. It has at least two d/b/a's, Coastal
`Pharmaceuticals and Mayne Pharma, they're not themselves legal
`entities but they are registered in some states so that
`Metrics, Inc., can do business in those states under those
`d/b/a's. Note New Jersey is not one of those states.
`To kind of fill out the rest of this side of the chart,
`Libertas to the right there is another U.S. based company,
`it's based in Georgia, that is wholly-owned by Mayne Pharma.
`Georgia corporation again not headquartered -- headquartered
`in Georgia, incorporated in Georgia. Those two companies are
`sometimes referred to internally as Mayne Pharma USA because
`it's the U.S. operations of Mayne Pharma. Okay? That's us.
`Now, none of those entities -- and there's the point
`about whether or not having an agent is sufficient, and again
`we think the case law is what it is, but none of those
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`entities other than that have any kind of connection.
`Now, over on the left there's the question -- to your
`part, your Honor, it is confusing, and I apologize for the
`confusion.
`THE COURT: Where did Mayne Pharma USA go to?
`MR. GAUDET: Okay. So Mayne Pharma USA, Inc., there,
`that's -- so -- this is the confusion. There are two
`completely unrelated entities that sound a whole lot alike.
`There's Mayne Pharma USA as a d/b/a, which is not up on the
`chart but it's a d/b/a of Metrics, Inc., and Libertas, Inc.,
`just like the other d/b/a's. Well, I say it's a d/b/a, it's
`sometimes an internal reference that people use around the
`company, it's not registered as a d/b/a but it's not named
`either.
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`Over on the left, this is where the confusion comes in,
`Mayne Pharma Limited, an Australian company sold us trademarks
`back in 2009, so that went up to the parent company Halcygen,
`which then caused Mayne Pharma to change its name. Okay? So
`now hence the confusion in names. Mayne Pharma changed its
`name to Hospira Australia. Okay? All the way down at the
`bottom there, that entity in green, Mayne Pharma USA, Inc.,
`okay, that is the fourth named defendant. What we know is
`that entity once was related to Mayne Pharma Limited, in other
`words, they kept on using the trademarks for some reason, they
`have an address in New Jersey it appears. We never had
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`anything to do with them. We don't know if they're still
`active or not active. It's just out there. But there is
`nothing other than a similar name and it is a similar name and
`that is confusing. To suggest any connection between that
`company, even whether it's alive or not, and us and they is
`simply unconnected, we have nothing to do with it other than
`there is a similar name.
`Now, the last piece of this puzzle, and then I want to
`come back to that --
`THE COURT: Well, would you agree -- do you represent
`Mayne Pharma USA, Inc., a New Jersey corporation?
`MR. GAUDET: No, we don't. And that's a great
`question. I mean, why in the world did we enter an
`appearance, why are we filing a motion on their behalf? And
`the answer is this, we've got a d/b/a that sounds a whole lot
`like that. They served the complaint in this case, a specific
`copy of the complaint, they served Mayne Pharma USA, Inc., on
`the CFO of Metrics and the CFO of some of the related
`companies there. The CFO in North Carolina having gotten a
`copy of a complaint made out to the company that sounds a
`whole lot like one of our d/b/a's called his lawyers and said
`in effect what do we do. And so, you know, if it is what you
`said Mayne Pharma USA, Inc., a New Jersey company based in New
`Jersey, then no. But what the complaint says is that on
`information and belief Mayne Pharma USA is a New Jersey
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`company with this address and they served it on Metrics, they
`served it on us. In that scenario where our corporate officer
`of Metrics has been served with a complaint that names an
`entity that looks a whole lot like our d/b/a, what we did was
`file an appearance and then file a motion. Our fear was if we
`had filed something more to try to sort this out -- and I
`completely understand the Court's frustration, frankly, with
`the confusion of this. It only would have gotten worse as we
`kind of lay all this out rather than coming into court and
`explaining it to you or trying to explain it to you, your
`Honor. But we have nothing to do with that entity.
`THE COURT: Well, this Court does have jurisdiction
`if Mayne Pharma USA, Inc., a New Jersey corporation has been
`duly served. Is it your position they haven't been served
`because service was only made on a CFO of an unrelated company
`in North Carolina?
`MR. GAUDET: It's an identity. If they mean by Mayne
`Pharma USA our d/b/a, then, yes, they've been served; no,
`there's not jurisdiction. If they mean Mayne Pharma USA,
`Inc., N.J. Corp., I do not represent them. I'd be speculating
`as to whether or not there is or isn't. But I can't imagine
`that serving that company at an address that isn't theirs
`could possibly affect service. I mean, it wasn't their
`officer. It wasn't as if it had anything to do with them. So
`it would be a simple failure of Rule 4.
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`MR. HASFORD: And, if I may, your Honor. They did
`not file a Rule 12(b)(5) motion with respect to service. They
`accepted service of the complaint directed to Mayne Pharma
`USA, Inc., through their CFO. So, your Honor, none of this
`changes the central truism here that Metrics, the ANDA filer,
`unequivocally and unconditionally accepted service of process
`here in New Jersey through their registered New Jersey agent
`and that establishes consent of personal jurisdiction as a
`matter of law, your Honor. And that's the case that I cited
`from New Jersey, the Signs by Tomorrow case. That's also a
`Third Circuit, Livera. The Third Circuit held that by
`accepting service in New Jersey that Livera and Livera
`Corporation consented to personal jurisdiction. It's the
`Neirbo case that counsel mentioned from the Supreme Court.
`It's also Pennsylvania Fire Insurance from the Supreme Court
`that I mentioned. Those cases are good law, they provide an
`independent pathway to jurisdiction.
`I would also add, your Honor, for the record it sounds
`like counsel may have waived privilege with respect to any
`communications with Mr. Cross, and so we may be briefing that
`for your Honor.
`MR. GAUDET: Your Honor, if I may make a suggestion.
`It sounds like at this point the real nub of the dispute here
`is this fairly legal matter of whether or not -- whether or
`not serving an agent is enough to make Metrics, Inc. -- in
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`light of all this to make Metrics, Inc., subject to
`jurisdiction. And I don't know that there are any facts that
`are being contested that would make any -- one of the things
`about Daimler is it said, you know, even if -- and Daimler
`is -- Daimler is the German company, MBUSA was in California,
`the Court said let's assume MBUSA is subject to general
`jurisdiction, is at home, and let's assume you can impute all
`of its actions up to Daimler AG, that's still