Free Motion for Extension of Time to File Answer - District Court of Delaware - Delaware

Case 1:08-cv-00052-GMS-LPS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

FOREST LABORATORIES, INC., )
FOREST LABORATORIES HOLDINGS, )
KGAA, and MERZ PHARMACEUTICALS)

LTD., MERZ PHARA GMBH & CO. )
) )
)

GMBH, )
Plaintiffs,
v.
)
)

C.A. No. 08-52 (GMS)

DR. REDDY'S LABORATORIES, INC., )

DR. REDDY'S LABORATORIES)
LIMITED, GENPHARM IC., GENPHARM,)

L.P., INTERPHA HOLDINGS, INC., )

INTERPHARM, INC., MYLAN )

PHACETICALS INC., RANBAXY )

LIMITED, KENDLE )
INTERNATIONAL INC., SUN INIA)

INC., RANBAXY LABORATORIES )

PHARMCEUTICAL INUSTRIS )

LIMITED (ala SUN )
PHACEUTICAL INUSTRIS )
PHARMACEUTICALS, INC. )
Defendants.

LTD.), SYNTHON HOLDING B.V., )

SYNTHON B.V., SYNTHON )
LABORATORIES, INC., and SYNTHON )
) ) )

SYNTHON HOLDING B.V., SYNTHON B.V., SYNTHON LABORATORIES, INC. AND SYNTHON PHARMACEUTICALS. INC.'S MOTION FOR EXTENSION OF TIME

Defendants, Synthon Holding B.V. ("Synthon Holding"), Synthon B.V. ("Synthon"),

Synthon Laboratories, Inc. ("Synthon Labs"), and Synthon Pharmaceuticals, Inc. ("Synthon
Pharms") (collectively, the "Synthon Entities"), by and through their counsel, move for a twenty-

one day extension of time to answer or otherwise respond to the Amended Complaint, up to and

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including April 1, 2008. Because the Synthon Entities need additional time to investigate the
issue of whether this District has personal jurisdiction over the Synthon Entities, as well as the

other complex issues raised in the Amended Complaint, the present motion should be granted.
The grounds for this motion are as follows:
1.

Forest Laboratories, Inc., Forest Laboratories Holdings, Ltd., Merz Pharma

GmbH & Co KGaA and Merz Pharaceuticals GmbH (collectively, "Plaintiffs") fied their

Amended Complaint against the Synthon Entities on February 15, 2008. After filing a retu of
service stating that the Delaware Secretary of State had been hand served on behalf of each of

the Synthon Entities on February 20,2008, the docket calculated due date on which the Synthon
Entities must answer or otherwise respond to the Amended Complaint is March 11, 2008. i
2.

On Januar 28, 2008, Plaintiffs fied an initial complaint against various
United States Patent No. 5,601,703 (the "'703 patent") based

defendants alleging infingement of

on defendants' filings of Abbreviated New Drug Applications ("AND

As") seeking approval for

the manufactue, use and sale of generic memantine hydrochloride tablets. On February 15,
2008, Plaintiffs fied an Amended Complaint adding each of

the Synthon Entities as a defendant,

after receiving notice that Synthon Labs had also fied an ANDA containing a Paragraph IV
Certification with respect to the '703 patent.

3.

Plaintiffs served the Summons and Amended Complaint against each of the

Synthon Entities (two of which are located outside of the United States) on the Delaware

Secretary of State pursuant to 10 DeL. C § 3104(d) on Februar 20, 2008. Pursuant to that
i Since Plaintiffs served the Synthon Entities pursuant to 10 DeL. C § 31 04( d) by service on the Delaware

the notice Secretar of State, the due date for the responsive pleading is calculated from the date of required by the statute. 10 DeL. C § 31 04(h). Here, since the Synthon Entities received notice letters
However, in an abundance of caution, the Synthon Entities are fiing this request for an extension of

dated February 21, 2008, the responsive pleading due date is twenty days later, on March 12,2008. Id. time March 11,2008. based on the docketed due date of
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statute, Plaintiffs then fied the retu of service documents with the cour on February 21,2008.
In order to comply with the statute, on that same day, Plaintiffs forwarded, by registered mail, a
copy of the Summons and Amended Complaint, along with a statement that service was made on
the Secretary of State to each of the Synthon Entities. Thus, none of the Synthon Entities even
had notice of the fied action until, at the earliest, February 26,2008. See Declaration of

Mailing

(as to Synthon Laboratories, Inc.), Docket No. 43, Exhibit B. At that point, nearly one week had
already lapsed - almost one third of

the total time in which to respond.

4.

On March 10, 2008, the Synthon Entities contacted Plaintiffs seeking a twenty-

one day extension oftime to answer or otherwise respond to the Amended Complaint in order to

fully evaluate the allegations and determine the natue of their response. Plaintiffs did not
consent to the requested extension of time. As a result, the Synthon Entities now request that the
cour grant them a twenty-one day extension from the docketed due date, up through and

including April 1, 2008, to answer or otherwise respond to the Amended Complaint.
5.

When an act must be done within a specified time, the Cour may, for good cause,

extend the time for acting if a request is made before the original time, or its extension, has

expired. See,~, Fed. R. Civ. P. 6(b)(1)(a). In addition, the Delaware long arm statute,
Plaintiffs chosen method of service in this case, specifically provides for continuances as may be
necessary to afford the defendant therein reasonable opportunity to defend the action. See 10
DeL. C § 31 04(h) ("The time in which defendant shall serve an answer shall be computed from

the date of the mailing of the (notice letter required by 10 DeL. C § 31 04( d)) . . . provided,

however, that the cour in which the action is pending may, at any time before or after the
expiration of the prescribed time for answering, order such continuances as mav be necessary to

afford the defendant therein reasonable opportty to defend the action." (emphasis added)).

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6.

Here, the Synthon Entities request that this Cour grant them a reasonable

extension of time such that they can evaluate the issue of whether this District has personal
jurisdiction over the Synthon Entities, as well as the complicated issues involved in defending a
patent infringement action based on the Hatch-Waxman provisions of the Federal Food, Drug

and Cosmetic Act. The short twenty-one day extension of time is also reasonable in view of the
fact that the earliest date on which the Synthon Entities were aware of the commencement of the

action against them was February 26, 2008 - a mere fourteen days before their responses were
due.
7.

The Synthon Entities further submit that Plaintiffs wil suffer no prejudice as a

result of the requested twenty-one day extension of time. If granted, this short extension of time

should not disrupt the schedule in this case since there is no Scheduling Order in place at this
time. In addition, Plaintiffs have already agreed to several of the co-defendants' requests for

extensions of time to answer or otherwse plead. See Docket No. 29 (Interphar Holdings, Inc.
and Interpharm, Inc. time extended from February 19, 2008 to March 21, 2008); Docket No. 40
(Sun India Pharaceutical Industries Limited time extended from Februar 19, 2008 to March

15,2008); Docket No. 44 (Genpharm LP, Genpharm Inc. and Mylan Pharmaceuticals Inc. time

extended from Februar 19, 2008 to April 7, 2008).

Accordingly, Plaintiffs wil not be

prejudiced if a similar extension of time is granted to the Synthon Entities.
8.

For the reasons set forth above, the Synthon Entities respectfully request that their

motion be granted and that the date on which they may answer or otherwise respond to the
Amended Complaint be extended up through and including April 1,2008.

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Dated: March 1 1, 2008

Elizabeth. McGeever(# 2057)
13 10 King Street

PRICKETT, JONES & ELLIOT, P .A.

((~L~

Wilmington, DE 19899 Telephone: (302) 888-6500 Facsimile: (302) 658-8111
Attorney for Defendants Synthon Holding B. V,
Synthon B. V,

Synthon Laboratories, Inc. and Synthon Pharmaceuticals, Inc.
Of

Counsel:

E. Anthony Figg Joseph A. Hynds Lisa N. Phillps ROTHWELL, FIGG, ERNST & MANBECK, P.C. 1425 K Street, N.W. Suite 800 Washington, D.C. 20005 Telephone: (202) 783-6040 Facsimile: (202) 783-6031

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

FOREST LABORATORIES, INC., )
FOREST LABORATORIES HOLDINGS, )

LTD., MERZ PHARM GMBH & CO. )
KGAA, and MERZ PHARMCEUTICALS)
Plaintiffs,
v.

GMBH, )
DR. REDDY'S LABORATORIES )

) )
) ) )

C.A. No. 08-52 (GMS)

DR. REDDY'S LABORATORIES, INC., )

LIMITED, GENPHA IC., GENPHARM,)

L.P., INTERPHA HOLDINGS, INC., )

INTERPHARM, INC., MYLAN )
INC., RANBAXY LABORATORIES )

PHARMACETICALS INC., RANBAXY )

LIMITED, KENDLE )
INTERNATIONAL INC., SUN INIA)

PHARMCEUTICAL INUSTRIS )

LIMITED (ala SUN )

PHARMACEUTICAL INUSTRIS )
LTD.), SYNTHON HOLDING B.V., )

SYNTHON B.V., SYNTHON )
LABORATORIES, INC., and SYNTHON )
Defendants:

PHACEUTICALS, INC. )
) ) )

rPROPOSEDl ORDER
This - date of March 2008, Synthon Holding B.V. ("Synthon Holding"), Synthon

B.V. ("Synthon"), Synthon Laboratories, Inc. ("Synthon Labs"), and Synthon Pharaceuticals,

Inc. ("Synthon Pharms") (collectively, the "Synthon Entities"), having moved for an extension of

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time to answer or otherwise respond to the Amended Complaint up through and including

April!, 2008, the Synthon Entities' motion is hereby granted.

Chief Judge Gregory M. Sleet

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IN THE UNITED STATES DISTRCT COURT

FOR TH DISTRCT OF DELA WAR
FOREST LABORATORIS, INC., )
FOREST LABORATORIES HOLDINGS, )

LTD., MERZ PHAA GMBH & CO. )
KGAA, and MERZ PHAACEUTICALS)
Plaintiffs,
v.

GMBH, )
)

) ) ) )

C.A. No. 08-52 (GMS)

DR. REDDY'S LABORATORIS, INC., )

DR. REDDY'S LABORATORIES)
LIMITED, GENPHA IC., GENPHA,) L.P., INTERPHA HOLDINGS, INC., )

INTERPHAR, INC., MYLAN )
PHAACETICALS INC., RANBAXY ) INC., RANBAXY LABORATORIS )

LIMITED, KENDLE )
PHACEUTICAL INUSTRIS ) PHACEUTICAL INUSTRIS )

INTERNATIONAL INC., SUN INIA )

LIMITED (a/k/a SUN )
LTD.), SYNTHON HOLDING B.V., )

SYNTHON B.V., SYNTHON )
LABORATORIS, INC., and SYNTHON )

PHAACEUTICALS, INC. )
Defendants.
) ) )

CERTIFICATE PURSUANT TO LOCAL RULE 7.1.1

I, Elizabeth M. McGeever, a member of the firm of Prickett, Jones, & Ellott,
P.A., counsel for Synthon Holding B.V., Synthon B.V., Synthon Laboratories, Inc., and
Synthon Pharaceuticals, Inc. (hereinafter "Synthon Entities"), submit this certificate

pursuant to District of Delaware Local Rule 7. i . i showing that reasonable effort has been

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made to reach agreement with Plaintiffs' counsel on an extension of time to respond to the
Amended Complaint.
1.

On March 10, 2007, I telephoned Jack Blumenfeld, counsel for the
mail

plaintiffs, and left a voice

message requesting an extension of time for the Synthon

Entities to respond to the complaint.
2.
Mr. Blumenfeld left a retu voice mail

message on March 10, 2007

stating that Plaintiffs were waiting to hear if the Synthon Entities would consent to
jurisdiction in Delaware before agreeing to an extension of

the response time.
mail

3.

On March 10,2007, I left Mr. Blumenfeld a second voice

explaining

that the Synthon Entities would not consent to jurisdiction in Delaware. I requested a 21
day extension to respond to the Amended Complaint.
4.
By retu voice mail message, Mr.

Blumenfeld stated that Plaintiffs would

not agree to an extension.
PRICKETT, JONES & ELLIOTT, P.A.

By: ~ fh. fy0~
emmcgeeverêprickett.com

Elizabeth M. McGeever (LD. No. 2057) 1310 King Street P.O. Box 1328 Wilmington, DE 19899 TEL: (302) 888-6500

Attorneys for Synthon Entites

DATED: March 11,2008

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