Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01285—GI\/IS Document 94 Filed 10/17/2005 Page 1 of 3
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FILED ELECTRONICALLY (302) 4294226
t1 October 17, 2005
Honorable Gregory M. Sleet
United States District Court for the District of Delaware
J. Caleb Boggs Federal Building
844 N. King Street, Lockbox 18
Wilmington, DE 19801
Re: Enzon Phczrmczceuticczls, [nc. v. P/10enixPhczr112ac0Z0gics, Inc.
C.A. N0. O4-./285»GMS
Dear Judge Sleet:
Phoenix submits this reply in support of its request for leave to file a motion for
summary judgment of no unjust enrichment.
Enzon has failed to identify any factual issue that would preclude granting
summary judgment of no unjust enrichment. Although Enzon suggests that a longer
statute of limitations is applicable, Enzon’s unjust enrichment claim would still be time-
barred, even if the Court were to adopt the longer statute of limitations that Enzon
proposes.
The key fact relating to Phoenix’s proposed motion is Enzon’s admission that its
claim of unjust enrichment derives from the use by Dr. Clark of his "work on PEG-ADI
while at Enzon” (Enzon Opposition Letter Brief at 3). It is undisputed that Enzon has
been aware since at least 1996 —- more than eight years before it initiated this lawsuit ——
that Dr. Clark used this "work” in the research that he conducted upon leaving the
company. Since the longest statute of limitations that Enzon proposes is six years (id.
at 3), Enzon’s unjust enrichment claim is —— by its own admission —— barred by the statute
of limitations.
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Case 1 :04-cv-01285—Gl\/IS Document 94 Filed 10/17/2005 Page 2 of 3
The Honorable Gregory M. Sleet
TI-IE BAYARD FIRM 0¤¢<>b¢r 17, 2005
Page 2
Phoenix accordingly requests that the Court grant it leave to file a motion for
summary judgment that Enzon’s unjust enrichment claim is barred by the statute of
limitations.
Respectfully submitted,
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Thomas H. Kovach (#3964)
THK/slh
cc: Courtesy copy to Clerk by hand
Counsel as shown on attached certificate
3 105 8~l
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Case 1:04-cv-01285—Gl\/IS Document 94 Filed 10/17/2005 Page 3 of 3
CERTIFICATE Oli? SERVICE
The undersigned counsel certifies that, on October 17, 2005, he electronically filed the
foregoing document with the Clerk of the Court using CM/ECE, which will send automatic
notification ofthe filing to the following:
Josy W. Ingersoll, Esquire
John W. Shaw, Esquire
Young Conaway Stargatt & Taylor, LLP
1000 West Street, 17m Floor
Wilmington, DE 19801
The undersigned counsel further certifies that copies of the foregoing document were sent
by email and hand to the above local counsel and by email and U.S. mail to the following non-
registered participants:
Charles A. Weiss, Esquire
Michael A. Siem, Esquire
Kenyon & Kenyon
One Broadway
New York, NY 10004
/s/ Thomas H. Kovach gtk3964l
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