Free Motion to Strike - District Court of Delaware - Delaware

Case 1:07-cv-00731—GI\/IS Document 13 Filed 12/20/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ENDO PHARI\/IACEUTICALS INC. and
PENWEST PHARMACEUTICALS CO.,
Case No. C. A. No. 07-731-***
Plaintiffs,
v.
IMPAX LABORATORIES, INC., I
Defendant.
IMPAX LABORATORIES, INC.’S MOTION TO STRIKE IMMATERIAL
AND IMPERTINENT ALLEGATIONS FROM PLAINTIFFS’ COMPLAINT
Defendant and Counterclaim Plaintiff Irnpax Laboratories, Inc. ("Impax") moves
pursuant to Rule l2(f) of the Federal Rules of Civil Procedure to strike certain allegations from
Plaintiffs Endo Pharmaceuticals Inc.’s and Penwest Pharmaceuticals Co.’s (collectively “Endo")
Complaint that are no longer at issue. The irrelevant allegations relate only to a cause of action
that Endo voluntarily withdrew.
I. Count I of Endo’s Complaint requested a declaratory judgment that, among other
things, certain so-called Paragraph IV Notices served by Irnpax pursuant to the Federal Food,
Drug and Cosmetic Act on Endo are null and void. Impax believed that no cause of action ever
existed for Count I. In any event, when certain Food and Drug Administration actions mooted
Count I, Impax requested that Endo dismiss Count I, and Endo agreed. Endo dismissed Count I
on December 20, 2007. D.I. 1 1.
2. Impax also requested that Endo dismiss allegations in its Complaint that relate
only to Count I, but Endo unreasonably refused. In a conference on the issue, Endo did not
assert that the allegations were related to the remaining patent inhingement causes of action in
the Complaint but rather that they wished to preserve their rights regarding these allegations and
that the allegations provided background information.

Case 1:07-cv-00731—GI\/IS Document 13 Filed 12/20/2007 Page 2 of 4
3. The statements which Impax seeks to have stricken are as follows: Paragraphs
1-4, 24, 25, 29-32, 35-40 and 44-56 in their entirety. In addition, references to declaratory
judgment in Paragraphs 10 and 11 should be stricken since the declaratory judgment count has
been dismissed, namely: "for declaratory judgment and, in the a1ternative" and "the Declaratory
Judgment Act, 28 U.S. C. § 2201, et seq." should be stricken from Paragraph 10; and ", and
28 U.S.C. §§ 2201 and 2202" should be stricken from Paragraph 11. Finally, " '250," which is
the reference to the unasserted U.S. Patent No, 7,276,250, should be stricken from Paragraph 27.
4. The above-identified allegations should be stricken under Rule 12(f), which states
that "the court may order stricken from any pleading any redundant, immaterial, impertinent,
or scandalous matter." See also Seidel v. Lee, 954 F. Supp. 810 (D. Del. 1996) (striking
allegations related to transactions taking place before October 14, 1990, when claims related to
such transactions were time barred). In particular, a court should strike as immaterial allegations
regarding the adequacy of Paragraph IV Notices from a complaint alleging patent infringement,
Biovail Labs. v. T orpharm, Inc., 2003 WL 21254417, *2 (N .D. Ill. 2003) (striking allegations on
court's own motion), especially when those allegations e no l t issue.
gf`;/V
Dated: December 20, 2007 "
0 Mary B. Matterer (LD. No. 2696)
MORRIS JAMES LLP
500 Delaware Avenue, 15th Floor
Wilmington, DE 19801
Telephone: (302) 888-6800
[email protected]
Asim Bhansali
Klaus H. Hamm
KEKER & VAN NEST LLP
710 Sansome Street
San Francisco, CA 94111
Telephone: (415) 391-5400
Attorneys for Defendant
Impax Laboratories, Inc.
2

Case 1:07-cv-00731—GI\/IS Document 13 Filed 12/20/2007 Page 3 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ENDO PHARMACEUTICALS INC. and
PENWEST PHARMACEUTICALS CO.,
. Case No. C. A. N0. 07-731***
Plaintiffs,
v.
IMPAX LABORATORIES, INC.,
Defendant.
|PROPOSED| ORDER
WHEREAS, the Court having considered Defendant’s Motion to Strike Immaterial And
Impertinent Allegations From Plaintiffs’ Complaint;
IT IS HEREBY ORDERED this day of , 2007 that the Motion is
GRANTED.
U.S. District Court Judge

Case 1:07-cv-00731—GI\/IS Document 13 Filed 12/20/2007 Page 4 of 4
RULE 7.1.1 CERTIFICATION
The undersigned certifies that counsel for plaintiffs has been contacted and the parties
have been unable to resolve the issues presented in this Motion.
/"\
Mary B. ttere (# @

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