`
`
`Duane Morris LLP
`By: Sandra A. Jeskie
`30 South 17th Street
`Philadelphia, PA 19103
`Telephone: 215-979-1395
`Facsimile: 215-689-2586
`jeskie@duanemorris.com
`Attorneys for Defendants Metrics, Inc., Coastal
`Pharmaceuticals, Inc., Mayne Pharma Group
`Limited, and Mayne Pharma (USA), Inc.
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`CIVIL ACTION NO. 1:14-CV-03962-
`JBS-KMW
`
`
`
`MOTION DATE: September 15, 2015
`
`
`ORAL ARGUMENT REQUESTED
`
`
`SENJU PHARMACEUTICAL CO., LTD.,
`BAUSCH & LOMB, INC. and BAUSCH &
`LOMB HOLDINGS CORP.,
`
`Plaintiffs,
`
`v.
`
`METRICS, INC., COASTAL
`PHARMACEUTICALS, INC., MAYNE
`PHARMA GROUP LIMITED, and MAYNE
`PHARMA (USA), INC.,
`
`Defendants.
`
`:::::::::::
`
`::
`
`:
`
`MEMORANDUM OF LAW IN REPLY TO PLAINTIFFS’ OPPOSITION
`TO DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT (D.I. 1)
`
`
`
`Page 1 of 66
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`SENJU EXHIBIT 2003
`METRICS v. SENJU
`IPR2014-01043
`
`
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`Case 1:14-cv-03962-JBS-KMW Document 51 Filed 09/08/14 Page 2 of 19 PageID: 1669
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`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`Introduction ...................................................................................................... 4
`
`Background ...................................................................................................... 7
`
`III. Argument ......................................................................................................... 8
`
`A.
`
`B.
`
`Plaintiffs’ misstate the Supreme Court’s holdings in Goodyear
`and Daimler ........................................................................................... 8
`
`Defendants minimum contacts with the state of New Jersey will
`not satisfy the standard for personal jurisdiction set forth in
`Daimler and Goodyear ........................................................................ 10
`
`C. Neither “Mayne Pharma Limited” nor “Mayne Pharma (USA),
`Inc.” are related entities of the Defendants and any jurisdiction-
`conferring actions of either entity cannot be imputed to
`Defendants ........................................................................................... 13
`
`D. Defendants have not consented to jurisdiction as a result of
`previous litigation ................................................................................ 15
`
`E.
`
`This Court should deny Plaintiffs’ request for jurisdictional
`discovery ............................................................................................. 16
`
`IV. CONCLUSION .............................................................................................. 18
`
`
`
`
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`Page 2 of 66
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`
`TABLE OF AUTHORITIES
`
`Cases
`
`Arch v. American Tobacco Co., Inc.,
`984 F.Supp. 830 (E.D. Penn. 1997) .............................................................. 17-18
`
`Atkinson & Mullen Travel, Inc. v. New York Apple Tours, Inc.,
`48 U.S.P.Q.2d 1377 (D.N.J. 1998) ..................................................................... 10
`
`Carigliano v. Classic Motor Inc., No. 13-4180-SDW-MCA, 2014 WL
`3556393 (D.N.J.,July 17, 2014) ........................................................................ 8-9
`
`Daimler AG v. Bauman, 135 S.Ct. 746 (2014) ............................... 2-3,5-10,11-12,16
`
`Flynn v. Hovensa, LLC, No. 3:14-43, 2014 WL 3375238 (W.D. Penn., July
`3, 2014) ............................................................................................................... 16
`
`Goodyear Dunlop Tires Operations, S.A. v. Brown,131 S. Ct. 2846 (2011). 2-3, 5-7, 9-10,12,16
`
`Imo Indus., Inc., v. Kiekert AG, 155 F.3d 254 (3rd Cir. 1998) ................................ 17
`
`JWQ Cabinetry, Inc. v. Granada Wood & Cabinets, Inc., et. al.,No. 13-
`4110-FLW, 2014 U.S. Dist. LEXIS 68293 (D.N.J., May 19, 2014) ....... 6, 8-9,11
`
`Krishanti, et. al., v. Rajaratnam, et. al., No. 2:09-cv-05395, 2014 WL
`1669873 (D.N.J., April 28, 2014) ...................................................................... 3,8
`
`(D.N.J., July 11, 2011)……………………………………………………………...17
`
`Lottotron, Inc., v. Athila Station, et. al., No. 10-4318-JLL, 2011 WL 2784570,
`
`
`
`Page 3 of 66
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`
`I.
`
`Introduction
`
`Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (D.I. 50, herein
`
`“Plaintiffs’ Opposition”) reflects a fundamental misunderstanding of the
`
`relationships between the named Defendants and their presence in this jurisdiction.
`
`Plaintiffs compound their factual misunderstanding by applying an incorrect legal
`
`standard for personal jurisdiction. As set forth in Defendants’ Motion to Dismiss
`
`(D.I. 30, “Defendants’ Motion”), only three of the named Defendants are related,
`
`and only two of those related Defendants are legal entities: (1) Mayne Pharma
`
`Group Limited (“Mayne Pharma Australia”),1 which is an Australian company
`
`whose only involvement in this lawsuit is as the parent entity of Defendant
`
`Metrics, Inc. (“Metrics”); and (2) Metrics itself, which is a North Carolina
`
`company. (D.I. 30 at 10.) Metrics is organized under the laws of North Carolina
`
`with a principal place of business in Greenville, North Carolina. One of the other
`
`two named Defendants, Coastal Pharmaceuticals, is just a DBA tradename of
`
`Metrics and Mayne Pharma Australia. Thus, Metrics is registered to do business in
`
`North Carolina and elsewhere as Coastal Pharmaceuticals. (Id.) The DBA entity,
`
`Coastal Pharmaceuticals, is not a legal entity at all, and cannot be subject to
`
`
`1 In its motion to dismiss, Defendants referred to Mayne Pharma Group Limited
`as “Mayne Pharma.” However, due to Plaintiffs’ introduction of other unrelated
`entities sharing the name “Mayne Pharma” discussed in Plaintiffs’ Opposition,
`Defendants will refer to Mayne Pharma Group Limited as “Mayne Pharma
`Australia” in this Reply.
`
`
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`Page 4 of 66
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`jurisdiction apart from the jurisdictional analysis for the underlying legal entity
`
`(Metrics). And, as out-of-state corporations without the sort of “continuous and
`
`systematic” contacts with the State of New Jersey necessary to support a finding of
`
`personal jurisdiction, both Metrics and Mayne Pharma Australia should be
`
`dismissed from this case.
`
`Further, Plaintiffs have named a fourth entity, Mayne Pharma (USA), Inc.
`
`(“MP USA, Inc.”), as a Defendant in this lawsuit, even though MP USA, Inc. has
`
`no relation to Mayne Pharma Australia, to Metrics, or to Mayne Pharma USA
`
`(which is another DBA tradename of Defendant Metrics). (D.I. 30 at 10.)
`
`Plaintiffs incorrectly attribute the actions of MP USA, Inc. to “Mayne Pharma
`
`USA” (which, again, is a DBA tradename of Defendant Metrics). (D.I. 50 at 5.)
`
`Plaintiffs repeatedly assert that “Metrics and Mayne Pharma USA are the same
`
`corporate entity” (D.I. 50, FN2.) While that assertion is correct, it does not change
`
`the simple fact that MP USA, Inc. is unrelated to either Metrics or to Metrics’
`
`DBAs “Mayne Pharma” and “Mayne Pharma USA.” Put simply, MP USA, Inc.
`
`and the “Mayne Pharma” and “Mayne Pharma USA” tradenames for Defendants
`
`Mayne Pharma Australia and Metrics share nothing more than a similar name.
`
`Plaintiffs then apply a legal standard which disregards the influence of the
`
`Supreme Court’s recent decisions in both Goodyear Dunlop Tires Operations, S.A.
`
`v. Brown, 131 S. Ct. 2846 (2011)(“Goodyear”) and Daimler AG v. Bauman, 134 S.
`
`
`
`
`5
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`Page 5 of 66
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`
`Ct. 746 (2014) (“Daimler”). This Court has expressly acknowledged that the
`
`Supreme Court’s Goodyear and Daimler decisions refined the standard for finding
`
`personal jurisdiction over out-of-state entities to require the sort of “continuous and
`
`systematic” contacts which render the out-of-state entity “at home” in the forum
`
`State. JWQ Cabinetry, Inc. v. Granada Wood & Cabinets, Inc., et. al., No. 13-
`
`4110-FLW, 2014 U.S. Dist. LEXIS 68293, at *6 (D.N.J., May 19, 2014).
`
`Nonetheless, Plaintiffs ask this Court to limit the Supreme Court’s recent holdings
`
`to only out-of-state entities who are not registered to do business in the state or to
`
`those entities who have previously consented to jurisdiction in the state. This
`
`Court has so far refused to apply these cases so narrowly, and Plaintiffs fail to
`
`provide any convincing reason why these recent Supreme Court holdings should
`
`not be applicable to the case at hand.
`
`As set forth in Defendants’ Motion, none of the named Defendants can be
`
`considered “at home” in the State of New Jersey, and, therefore lack the sufficient
`
`“minimum contacts” with New Jersey necessary to support personal jurisdiction.
`
`For at least this reason, Defendants respectfully request that this Court grant its
`
`Motion to Dismiss the Complaint, and deny Plaintiffs’ request for jurisdictional
`
`discovery.
`
`
`
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`6
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`Page 6 of 66
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`II. Background
`This action arises out of Metrics’ (d/b/a Coastal Pharmaceuticals
`
`(“Coastal”)) filing of an ANDA under Section 505(j) of the Federal Food, Drug
`
`and Cosmetic Act, 21 U.S.C. § 355 (j), seeking approval to market a generic
`
`version of Prolensa® (bromfenac ophthalmic solution 0.07%). As explained in
`
`Defendant’s Motion to Dismiss, the instant Complaint is one of three lawsuits filed
`
`by Plaintiffs naming the same Defendants and alleging infringement of the same
`
`patents by the filing of Metrics’ ANDA. (D.I. 30 at 5-6.) This Complaint was filed
`
`before receipt of Metrics’ Notice Letter, while the Parties were still in the midst of
`
`business discussions. Presumably, Plaintiffs elected to file this complaint in the
`
`District of New Jersey because there is already pending litigation against another
`
`generic pharmaceutical company seeking to market a generic version of
`
`Prolensa®. However convenient for Plaintiffs, the District of New Jersey has
`
`neither general nor specific personal jurisdiction over any of the named
`
`Defendants. For this reason, Defendants respectfully request that that this Court
`
`dismiss Plaintiffs’ complaint and further deny Plaintiffs’ request for jurisdictional
`
`discovery.
`
`
`
`
`7
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`Page 7 of 66
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`
`III. Argument
`A.
`Plaintiffs misstate the Supreme Court’s holdings in Goodyear and
`Daimler
`
`In support of their position, Plaintiffs urge this Court to rely on a series of
`
`pre-Goodyear and pre-Daimler cases. This asserted legal support is particularly
`
`suspect, given that this Court has expressly recognized that “the Supreme Court
`
`refined the standard for finding general jurisdiction in Daimler . . . [such that]
`
`general jurisdiction refers to a court’s power to ‘hear any and all claims’ against an
`
`out-of-state entity or person when its ‘affiliations with the State are so continuous
`
`and systematic as to render [it] at home in the forum state.’” JWQ Cabinetry, Inc.
`
`2014 U.S. Dist. LEXIS 68293, at *6 (citing Daimler, 134 S. Ct. at 751); see also,
`
`Krishanti, et. al., v. Rajaratnam, et. al., No. 2:09-cv-05395, 2014 WL 1669873, at
`
`*6 (D.N.J., April 28, 2014); Corigliano v. Classic Motor Inc., et. al, No. 13-4180,
`
`2014 WL 3556393 at * 2 (D.N.J., July 17, 2014). Indeed, this Court has not only
`
`recognized that the Supreme Court “refined the standard” for finding personal
`
`jurisdiction in Daimler, but has further noted that, since Daimler, “courts have
`
`noted that general jurisdiction extends beyond an entity’s state of incorporation and
`
`principal place of business only in the exceptional case where its contacts with
`
`another forum are so substantial as to render it “at home” in that state.” JWQ
`
`Cabinetry, Inc., 2014 U.S. Dist. LEXIS 68293, at *8.
`
`
`
`
`8
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`Page 8 of 66
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`Nevertheless, Plaintiffs would ask this Court to limit the holdings in both
`
`Goodyear and Daimler to “foreign corporations that had not registered to do
`
`business or otherwise consented to suit in the forum state,” or “foreign
`
`corporation[s] that apparently [have] no contacts with the forum.” (D.I. 50 at 6.)
`
`This Court has so far declined to limit the holdings in Goodyear and Daimler as
`
`Plaintiffs propose, and Plaintiffs provide no reason why the Court should so limit
`
`the holdings in this particular case. See, e.g., Carigliano, 2014 WL 3556393 at * 6
`
`(relying, in part, on Daimler, holding that defendant, a California corporation did
`
`not possess the requisite systematic nor continuous contacts with New Jersey to
`
`allow for the exercise of personal jurisdiction); JWQ Cabinetry, Inc., 2014 U.S.
`
`Dist. LEXIS 68293, at *9 (holding Court lacked jurisdiction over California
`
`defendant because the business activities at issue “simply [did] not meet
`
`[Daimler]’s standard of an exceptional case.”). For this reason, and in light of this
`
`Court’s holdings since Daimler, Defendants reassert that, in view of the Supreme
`
`Court’s recent rulings, the appropriate inquiry with respect to personal jurisdiction
`
`is whether the Defendants contacts with the state of New Jersey are so “continuous
`
`and systematic” as to render them essentially “at home” in the state. Applying this
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`standard to the facts of this case, Defendants’ motion to dismiss must be granted.
`
`
`
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`9
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`Page 9 of 66
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`B. Defendants’ minimum contacts with the state of New Jersey will
`not satisfy the standard for personal jurisdiction set forth in
`Daimler and Goodyear
`
`Defendants have no need to “downplay their presence in New Jersey”
`
`because they simply do not have a presence in New Jersey that would amount to
`
`the level of “continuous and systematic” contacts with New Jersey contemplated
`
`by both the Daimler and Goodyear decisions. Plaintiffs repeatedly assert that
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`Defendants have somehow consented to jurisdiction by virtue of registering to do
`
`business in the state of New Jersey, and appointing an agent to accept service.
`
`(D.I. 50 at 4-7.) Defendant Metrics is registered to do business in New Jersey;
`
`however, it was established even before Daimler and Goodyear that simply having
`
`a license to do business in New Jersey is not “in and of itself sufficient to establish
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`continuous and substantial contacts.” Atkinson & Mullen Travel, Inc. v. New York
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`Apple Tours, Inc., 48 U.S.P.Q.2d 1377, 1379 (D.N.J. 1998). Indeed, to “approve
`
`the exercise of general jurisdiction in every State in which a corporation ‘engages
`
`in a substantial, continuous, and systematic course of business,’” would be
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`‘unacceptably grasping.’” Daimler 134 S.Ct. at 761 (2014). Plaintiffs further
`
`assert that Defendants have consented to jurisdiction by appointing a registered
`
`agent to receive service. Again, this position is contrary to the understanding
`
`expressed by this Court that, since Daimler, courts have noted that general
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`jurisdiction rarely extends “beyond an entity’s state of incorporation and principal
`
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`10
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`place of business” except where “its contacts with another forum are so substantial
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`as to render it ‘at home’ in that state.” JWQ Cabinetry, Inc., 2014 U.S. Dist.
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`LEXIS 68293, at *8.
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`For this same reason, Mayne Pharma Australia cannot be subject to personal
`
`jurisdiction in New Jersey simply because it has “engaged in the business of
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`research, development, manufacture, and sale of pharmaceutical products
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`throughout the world.” (D.I. 50, 4.) First, nothing about this general statement
`
`demonstrates that Mayne Pharma Australia has engaged in such activities in New
`
`Jersey, let alone engaged in such activities in New Jersey to the extent that Mayne
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`Pharma Australia should be considered “at home” in New Jersey. Further, as set
`
`forth in Defendants’ Motion, Mayne Pharma Australia has not made any direct
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`sales of products to New Jersey. (D.I. 30 at 11.) Sales by Metrics, a wholly-
`
`owned subsidiary of Mayne Pharma Australia, to New Jersey represented only 4%
`
`of Metrics’ overall U.S. product and services sales for the most recent financial
`
`year, ending June 30, 2014. (D.I. 30, citing Decl. of S. Cross. at ¶ 15.) It is now
`
`well established that “[a] corporation that operates in many places can scarcely be
`
`deemed at home in all of them … [o]therwise, ‘at home’ would be synonymous
`
`with ‘doing business’[.]” Daimler, 134 S.Ct. at 762, FN20. Indeed, as a result of
`
`the “at home” requirement, “only a limited set of affiliations with a forum will
`
`render a defendant amenable to all-purpose jurisdiction there.” JWQ Cabinetry,
`
`
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`11
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`Inc., 2014 U.S. Dist. LEXIS 68293, at *9 (citing Daimler, 134 S. Ct. at 760).
`
`While this small volume of yearly sales may suggest that Metrics is “doing
`
`business” in New Jersey, it is a far cry from the sort of “continuous and
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`systematic” relationship necessary to render Metrics “at home” in New Jersey.
`
`Daimler AG, 134 S.Ct. at 761 (2014) (quoting Goodyear Dunlop Tires
`
`Operations, S.A. v. Brown, 564 U.S. __, 131 S. Ct. 2846, 2851 (2011)).
`
`In a final attempt to link any of these Defendants to New Jersey, Plaintiffs
`
`assert that “the manufacturer of Defendants’ active pharmaceutical ingredient in
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`their generic bromfenac ophthalmic solution ANDA product at issue in this case is
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`Johnson Matthey, which is based in West Deptford, N.J.” (D.I. 50 at 11.) That
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`non-party Johnson Matthey, Inc. (“JM”) has a New Jersey place of business is
`
`inapt. Although supplied by JM, the bromfenac hydrochloride used in Defendants’
`
`bromfenac ophthalmic ANDA product at issue in this case was not manufactured
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`or shipped from JM’s New Jersey facility. (Cross Dec’l. at ¶ 6.) Rather, it was
`
`manufactured in and shipped from Massachusetts. Id..
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`For at least the reasons stated above, Defendants lack a “continuous and
`
`systematic” relationship with New Jersey, and, for this reason, Defendants’ motion
`
`to dismiss should be granted.
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`C. Neither “Mayne Pharma Limited” nor “Mayne Pharma (USA),
`Inc.” are related entities of the Defendants and any jurisdiction-
`conferring actions of either entity cannot be imputed to
`Defendants
`
`As explained in Defendants’ Motion, “Mayne Pharma USA” (which is a
`
`DBA of Metrics) and Mayne Pharma (USA), Inc. (“MP USA, Inc.”) are neither the
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`same company nor even related companies. (D.I. 30 at 10.) Despite the similar
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`names, these two businesses are completely unrelated, having absolutely no
`
`involvement with each other. The origin of the DBA “Mayne Pharma USA” (i.e.,
`
`one of the DBAs of Metrics) is that Mayne Pharma Australia—the parent company
`
`of Metrics—is an Australian company with portions of its operations in the United
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`States. (Cross Dec’l, at ¶¶ 7-8.) For this reason, Mayne Pharma Australia will
`
`sometimes refer to its US operations as “Mayne Pharma USA.” Id.. Likewise,
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`Metrics is registered in certain states in the United States (excluding New Jersey)
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`to do business as Mayne Pharma.2 (Cross Dec’l at ¶8; Exs. 2-10.) But “Mayne
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`Pharma USA” is not a separate legal entity from Metrics. And, MP USA, Inc. –
`
`which is the named defendant in this lawsuit – is a completely different legal entity
`
`
`2 Defendants note the use of “Mayne Pharma USA” in paragraph 10 of the
`Declaration of Stefan Cross in support of Defendants’ Motion to Dismiss the
`Complaint. As explained, Mayne Pharma interchangeably refers to its US
`operations as Mayne Pharma USA and Mayne Pharma. The inclusion of “USA” is
`informal, and is meant only to describe Mayne Pharma’s US operations.
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`than either (i) Metrics or (ii) Metrics’ DBA “Mayne Pharma USA.” (Cross Dec’l.,
`
`at ¶ 8.)
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`Similarly, “Mayne Pharma Limited” is not the same entity as Mayne Pharma
`
`Australia. Although the two entities share a history, they have no current
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`relationship to each other. (Cross Dec’l., at ¶ 9.) Hospira Australia Pty Ltd
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`(formerly known as Mayne Pharma Limited) sold a company called Mayne
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`Pharma International Pty Ltd (formerly FH Faulding and Co. Limited) to Halcygen
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`Pharmaceuticals Limited on September 30, 2009, and at that time it also sold
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`certain Mayne Pharma trademarks. (Cross Dec’l, at ¶ 10.) Following the
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`acquisition, Halcygen Pharmaceuticals Limited (as the new owner of the Mayne
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`Pharma brand) changed its name to Mayne Pharma Group Limited. ( Cross Dec’l,
`
`at ¶11.) Mayne Pharma Limited still exists but is now called Hospira Australia Pty
`
`Ltd. ( Cross Dec’l., at ¶ 9.) For this reason, any alleged admission regarding
`
`contacts between Mayne Pharma Limited and MP USA, Inc. with Mayne Pharma
`
`Australia or Metrics is irrelevant because, as discussed above, MP USA, Inc. is in
`
`no way related to any of the named defendants, and Mayne Pharma Limited has no
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`relation to Mayne Pharma Australia. (Id.).
`
`Plaintiffs’ assertion that “Mayne Pharma previously identified Mayne
`
`Pharma USA and used its Paramus, NJ address for professional licensure as a
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`pharmaceutical manufacturer,” is also misplaced. (D.I. 50 at 10, Exs. 23 and 24.)
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`It is clear from the face of these licenses that the applicants are Mayne Pharma
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`Limited and Mayne Pharma Pty Ltd. (Id.), neither of which are defendants in this
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`case and neither of which is Defendant Mayne Pharma Australia or Mayne Pharma
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`International Pty Ltd. The pharmaceutical manufacturer license (D.I. 50, Ex. 24)
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`relied on by Plaintiffs first issued to Mayne Pharma Pty. Ltd. on October 17, 2002
`
`and expired in 2005.3 Thus, this license was issued and expired prior to Mayne
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`Pharma Australia’s acquisition of Mayne Pharma International Pty Ltd. (which is
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`not even the holder of the licenses) and has no bearing on the jurisdictional issues
`
`in this case.
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`D. Defendants have not consented to jurisdiction as a result of
`previous litigation
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`Defendants have not “repeatedly invoked” the jurisdiction of this Court as
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`Plaintiffs contend. (D.I. 50 at 7-8.) As a practical matter, several of the cases cited
`
`by Plaintiff involve actions by Mayne Pharma International Pty Ltd. before it was
`
`acquired by Mayne Pharma Australia. (D.I. 50, Ex 11-17.) In addition, as
`
`previously explained, neither Mayne Pharma Limited nor MP USA, Inc. have any
`
`
`3 Defendants note that, on its face, the license is for Mayne Pharma Pty Ltd., bears
`an expiration date of 12/31/2005, and the “Status” of the license is listed as “Failed
`to Renew.” Although Defendants lack specific information regarding the licensing
`activities of these entities at the time the license was active, Defendants note that
`the expiration date for this license is approximately four years prior to Mayne
`Pharma Australia’s acquisition of Mayne Pharma International Pty Ltd.
`
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`relationship to Defendant Mayne Pharma Australia; therefore, the actions of these
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`entities are irrelevant.
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`Similarly, Plaintiffs rely on the actions of non-party Mayne Pharma
`
`International Pty. Ltd. after its acquisition by Mayne Pharma Australia. While it
`
`appears that this Court has not had the opportunity to consider this point post
`
`Daimler and Goodyear, at least one court in this circuit has held that the
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`“interrelationship” between Defendants cannot be a basis for jurisdiction; rather,
`
`each individual defendant cannot be subject to personal jurisdiction without itself
`
`being essentially “at home” in the forum. Flynn v. Hovensa, LLC, No. 3:14-43,
`
`2014 WL 3375238, at *5 (W.D. Pa. July 3, 2014)(citing Daimler 134 S.Ct. at 751-
`
`752; Goodyear, 131 S.Ct. at 2857). Therefore, even if this Court were to find that
`
`Mayne Pharma International Pty. Ltd. had conceded to its jurisdiction by
`
`participating in litigation in the forum, this jurisdiction is not necessary imputed to
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`its parent company, Mayne Pharma Australia (or any of its subsidiaries) absent a
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`demonstration that each individual defendant can be considered “at home” in the
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`forum. Id.
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`E.
`
`This Court should deny Plaintiffs’ request for jurisdictional
`discovery
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`Plaintiffs bear the burden to come forth with sufficient facts to demonstrate,
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`by a preponderance of the evidence, that jurisdiction is proper. Imo Indus., Inc., v.
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`Kiekert AG, 155 F.3d 254, 257 (3rd Cir. 1998). Where, as here, Plaintiffs have
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`failed to meet their burden of making out a threshold prima facie case of personal
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`jurisdiction, it is appropriate for the court to deny Plaintiffs’ request for
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`jurisdictional discovery. Arch v. American Tobacco Co., Inc., 984 F. Supp. 830,
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`841 (E.D. Penn. 1997) (citing Rose v. Granite City Police Dep’t, 813 F.Supp. 319,
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`321 (E.D. Pa. 1993); see also Lottotron, Inc., v. Athila Station, et. al., No. 10-4318,
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`2011 WL 2784570, at * 2 (D.N.J., July 11, 2011,)(refusing to allow jurisdictional
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`discovery where plaintiff failed to put sufficient evidence in the record to support
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`personal jurisdiction.”). Since Plaintiffs cannot establish a prima facie case of
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`personal jurisdiction, they have instead asked this Court to “allow limited
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`discovery in hopes that [they] might uncover some evidence supporting
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`jurisdiction.” Arch, 984 F.Supp. at 841 (citing Milligan Elec. Co. v. Hudson
`
`Construction Co., 886 F.Supp. 845, 850 (N.D. Fla. 1995)). “Discovery should not
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`be used in a fishing expedition.” Arch, 984 F.Supp. at 841. Plaintiffs’ failure to
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`meet their burden of proof should not be awarded with an invitation to engage in
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`costly discovery on the improbable chance that they might discover some shred of
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`evidence in support of jurisdiction. Rather, this Court should exercise its
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`discretion and deny Plaintiffs’ request for jurisdictional discovery. Id..
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`17
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`Case 1:14-cv-03962-JBS-KMW Document 51 Filed 09/08/14 Page 18 of 19 PageID: 1685
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`IV. CONCLUSION
`For at least the reasons discussed above, Defendants respectfully request that
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`the Court grant its Motion to Dismiss the Complaint. (D.I. 1), and deny Plaintiffs’
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`request for jurisdictional discovery.
`
`
`
`Respectfully submitted,
`
`By: /s/ Sandra A. Jeskie
`Sandra A. Jeskie
`DUANE MORRIS LLP
`30 South 17th Street
`Philadelphia, PA 19103
`(215) 979-1395
`jeskie@duanemorris.com
`
`Matthew C. Gaudet
`Admitted Pro Hac Vice
`Duane Morris LLP
`1075 Peachtree Street NE, Suite 2000
`Atlanta, GA 30309-3929
`(404) 253-6900
`MCGaudet@duanemorris.com
`
`Vincent L. Capuano
`Admitted Pro Hac Vice
`Emily N. Winfield
`Admitted Pro Hac Vice
`Duane Morris LLP
`100 High Street, Suite 2400
`Boston, MA 02110-1724
`(857) 488-4200
`VCapuano@duanemorris.com
`ENWinfield@duanemorris.com
`
`
`
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`18
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`
`Patrick D. McPherson
`Admitted Pro Hac Vice
`Duane Morris LLP
`505 9th Street, N.W., Suite 1000
`Washington, DC 20004-21
`(202) 776-7800
`PDMcPherson@duanemorris.com
`
`Attorneys for Defendants Metrics, Inc., Coastal
`Pharmaceuticals, Inc., Mayne Pharma Group
`Limited, and Mayne Pharma (USA), Inc.
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`19
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`Page 19 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-1 Filed 09/08/14 Page 1 of 3 PageID: 1687
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`Page 20 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-1 Filed 09/08/14 Page 2 of 3 PageID: 1688
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`Page 21 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-1 Filed 09/08/14 Page 3 of 3 PageID: 1689
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`Page 22 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-2 Filed 09/08/14 Page 1 of 2 PageID: 1690
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`EXHIBIT 1
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`
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`
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`Page 23 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-2 Filed 09/08/14 Page 2 of 2 PageID: 1691
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`Mayne Pharma Group Limited
`ABN 76 115 832 963
`Roger Corbett (Chair)
`Bruce Mathieson (Non Exec. Director)
`Ian Scholes (Non Exec. Director)
`Ron Best (Non Exec. Director)
`William Phillip Hodges (Non Exec. Director)
`Scott Richards (Exec. Director)
`Mark Cansdale (Co. Secretary)
`
`100%
`
`100%
`
`100%
`
`100%
`
`100%
`
`Metrics Inc.
`North Carolina corporation
`Board: Scott Richards (Chair), Mark
`Cansdale & Stefan Cross
`Officers: Scott Richards (CEO),
`Stefan Cross (President), Wes
`Edwards (CFO), Mark Cansdale
`(VP - Finance & Secretary)
`
`Libertas Pharma Inc.
`Georgia corporation
`Board: Scott (Chair), Mark
`Cansdale & Stefan Cross
`Officers: Scott Richards (CEO),
`Stefan Cross (President), Wes
`Richards (CFO) & Mark Cansdale
`(VP—Finance & Secretary)
`
`Mayne Pharma
`International Pty Ltd
`ABN 88 007 870 984
`Scott Richards (Director)
`Mark Cansdale (Co. Secretary)
`
`100%
`
`100%
`
`Mayne Pharma
`Products Pty Ltd
`ABN 59 140 866 379
`Scott Richards (Director)
`Vince Caretti (Director)
`Mark Cansdale (Director &
`Co. Secretary)
`
`Mayne Pharma UK Ltd
`Co. No 07162518
`Scott Richards (Director)
`Mark Cansdale (Director &
`Co. Secretary)
`
`100%
`
`100%
`
`Tiger Pharmaceuticals LLC
`East Virginia corporation
`(to be incorporated FY15)
`Manager: Metrics Inc.
`Signatory: Stefan Cross
`
`Swan Pharmaceuticals LLC
`Delaware corporation
`(to be incorporated FY15)
`Manager: Libertas Pharma Inc
`Signatory : Stefan Cross
`
`Mayne Pharma Ventures
`Pty Ltd
`ABN 32 168 896 357
`Scott Richards (Director)
`Mark Cansdale (Co. Secretary)
`
`Mayne Pharma
`Ventures LLC
`Delaware corporation
`Manager:
`Signatory: Mark Cansdale
`Officers: Stefan Cross
`(President) & Wes
`Edwards (Secretary)
`
`41.5%
`
`HedgePath Pharmaceuticals
`Inc. (HPPI)
`Delaware corporation
`Stefan Cross (Director)
`
`Page 24 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-3 Filed 09/08/14 Page 1 of 3 PageID: 1692
`
`EXHIBIT 2
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`
`
`
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`Page 25 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-3 Filed 09/08/14 Page 2 of 3 PageID: 1693
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`Page 26 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-3 Filed 09/08/14 Page 3 of 3 PageID: 1694
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`Page 27 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-4 Filed 09/08/14 Page 1 of 4 PageID: 1695
`
`EXHIBIT 3
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`Page 28 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-4 Filed 09/08/14 Page 2 of 4 PageID: 1696
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`Page 29 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-4 Filed 09/08/14 Page 3 of 4 PageID: 1697
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`Page 30 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-4 Filed 09/08/14 Page 4 of 4 PageID: 1698
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`Page 31 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-5 Filed 09/08/14 Page 1 of 4 PageID: 1699
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`EXHIBIT 4
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`
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`Page 32 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-5 Filed 09/08/14 Page 2 of 4 PageID: 1700
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`Page 33 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-5 Filed 09/08/14 Page 3 of 4 PageID: 1701
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`Page 34 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-5 Filed 09/08/14 Page 4 of 4 PageID: 1702
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`Page 35 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-6 Filed 09/08/14 Page 1 of 4 PageID: 1703
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`EXHIBIT 5
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`
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`
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`Page 36 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-6 Filed 09/08/14 Page 2 of 4 PageID: 1704
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`Page 37 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-6 Filed 09/08/14 Page 3 of 4 PageID: 1705
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`Page 38 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-6 Filed 09/08/14 Page 4 of 4 PageID: 1706
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`Page 39 of 66
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`Case 1:14-cv-03962-JBS-KMW Document 51-7 Filed 09/08/14 Page 1 of 3 PageID: 1707
`
`EXHIBIT 6
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`
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`
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`Page 40 of 66
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`
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`Case 1:14-cv-03962-JBS-KMW Document 51-7 Filed 09/08/14 Page 2 of 3 PageID: 1708
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`Page 41 of 66
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`Case 1:14-cv-03962-JBS-KMW