Free Redacted Document - District Court of Delaware - Delaware

Case 1 :06-cv-00741-SLR Document 31 Filed O4/O3/2007 Page 1 of 2
Petter
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Corroon ur .
l3'I3 North Market Street
PO. Box 951 _ _
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[email protected]
www.potte1·andersen.oom 302-984-6140 Direct Phone
302-ess-1 192 tax
March 27, 2007
Public Version -— April 3, 2007
BY E-FILE
PUBLIC VERSION
The Honorable Sue L. Robinson
Chief Judge
United States District Court for
the District of Delaware
U.S. Courthouse
844 N. King Street
Wilmington, DE 1980i
Re: Celgene Corporation, er al. v. Abrika ?harrnaceuticals, Inc., et al.,
D. Del., C.A. No. 06-741-SLR .
Dear Chief Judge Robinson:
This firm, along with J ones Day and Fitzpatrick, Cella, Harper & Scinto, represent
plaintiffs Celgene Corporation, Novartis Pharmaceuticals Corporation and Novartis Pharma AG
in this action for patent infringement. Two days prior to tiling this action, piaintiffs filed the
identical complaint in their home state of New Jersey. Because defendant Abrika
Pharmaceuticals, Inc. is incorporated in Delaware, plaintiffs tiled this action merely as a
protective suit to assure a tiling date within the period provided to obtain the benefit ofthe
statutory 30-month stay of FDA approval of defendants ANDA. The Complaint and Summons
for this second case have never been served.
REDACTED
Moreover,
it was publicly announced on November 30, 2006, that Abrika was being acquired by Actavis, an
Icelandic company with U.S. headquarters and two manufacturing facilities in New J ersey.1
’ aanncran

Case 1 :06-cv-00741-SLR Document 31 Filed O4/O3/2007 Page 2 of 2
The Honorable Sue L. Robinson
March 27, 2007
Page 2
In spite of having a substantial presence in New Jersey, defendants preferred to proceed
here. As a result, they answered the Complaint here two days after its tiling and without being
served, and delayed the iiirstdiled New Jersey action by filing a motion to dismiss based on a
nieritless personal jurisdiction argument and request to transfer to Delaware. Plaintiffs have
conducted jurisdictional discovery in New Jersey and established contacts supporting the
exercise of both specific and general jurisdiction in New Jersey, and the motion has been fully
briefed with a return dare of next Monday, April 2, 2007. Hence, the question of whether the
firstdiled venue of New Jersey has jurisdiction, and whether the dispute should be decided in
New Jersey, or transferred to Delaware, has been submitted to Judge Susan Davis Wigenton in
New Jersey.
Pursuant to D.Del.L.R. 3.l(b), at the time they tiled the Complaint in this action,
plaintiffs properly identified the first··filed New Jersey action as a related case. Following
defendants premature filing of their answer, plaintiffs tiled their Motion to Strike Defendants
Answer and Counterclaims, or Alternatively to Stay the Proceedings ("Plaintiffs’ Motion to
Stay"). That motion has been fully-briefed since January 17, 2007. We now ask only that the
first~filed and plaintiffs preference doctrines be enforced, and that the telephonic scheduling
conference be continued to provide Judge Wigenton time to decide where this case should
proceed. Y
To avoid violating the Court's March 9, 2007, Order for Scheduling Conference (D.l. 21),
plaintiffs have negotiated with defendants as to a schedule that could be put into place if the case
proceeds here. A copy ofthe proposal (with the parties’ specific disagreements noted, where
appropriate) is enclosed. Plaintiffs, however, continue to oppose defendants motions to dismiss
or transfer the New Jersey action. Plaintiffs seek only have the dispute resolved in the district of
the first-tiled complaint (New Jersey), and where the parties and witnesses reside. Befendants
should not be allowed to usurp control of the action by filing a rneritless jurisdictional motion to
delay the proceeding in the first—filed venue of plaintiffs choice.
Respectfully,
/s/ Philip A. Rovner
Philip A. Rovner
[email protected]
PAR/mes/785828
Eno.
cc: John M. Seaman, Esq. (w/o encl.) — by ECP, E—niai1 and hand delivery