United States District Court, D. Delaware
Geoffrey G. Grivner, Buchanan, Ingersoll & Rooney, P.C.,
Wilmington, DE; S. Lloyd Smith, James T. Wilcox, Alexandre H.
Gapihan, Buchanan, Ingersoll & Rooney, P.C., Alexandria,
VA - attorneys for Plaintiff
Clayton Athey, Eric J. Juray, Prickett, Jones & Elliott,
P.A., Wilmington, DE; Christopher J. Schwegmann, Jared D.
Eisenberg, Lynn Pinker Cox & Hurst, LLP, Dallas, TX -
attorneys for Defendants January 11, 2019 Wilmington,
NOREIKA, U.S. DISTRICT JUDGE
the Court is the motion of Defendants Method Pharmaceuticals,
LLC ("Method") and Matthew Scott Tucker
("Tucker") (collectively "Defendants") to
"Dismiss Under Federal Rule of Civil Procedure 12(b)(2)
Or, In the Alternative, Transfer Venue" to the United
States District Court for the Northern District of Texas
pursuant to 28 U.S.C. § 1404(a). (D.I. 11). Plaintiff
ANI Pharmaceuticals, Inc. ("Plaintiff or
"ANI") opposes both dismissal and transfer, but
requests that, should the Court deem transfer proper, the
case be transferred to the United States District Court for
the District of Minnesota. (D.I. 13). For the reasons set forth
below, Defendants' motion to transfer is granted, and
this case will be transferred to the Northern District of
filed its Complaint against Defendants on August 7, 2017
alleging violations of §§ 43(a) and 43(a)(1)(B) of
the Lanham Act, 15 U.S.C. § 1125(a), as well as a
Delaware state law claim for deceptive trade practices, under
6 Del. C. § 2532, and a common law tortious interference
claim. (D.I. 1 at ¶¶ 43-72). The Complaint states
"[t]his Court has personal jurisdiction over Defendants
because the Defendants have solicited sourcing contracts with
McKesson Corp. [("McKesson")], a Delaware
Corporation that distributes pharmaceuticals at a retail sale
level throughout the District." (Id. at ¶
11). Further, the Complaint alleges that "Defendant
Tucker, directed, sanctioned, actively participated in, and
voluntarily and intentionally caused the above- mentioned
unlawful conduct by the corporate Defendants."
(Id. at¶42). Based upon these actions,
Plaintiff alleges that "Defendants have caused harm to
Plaintiff in this District." (Id. at ¶
present motion, Defendants argue that they "have no
connection with Delaware" and thus "lack sufficient
'minimum contacts' with this district to permit the
exercise of specific or general jurisdiction." (D.I. 12
at 2). In support of this, Defendants have submitted two
declarations from Tucker, one on behalf of Method
Pharmaceuticals, LLC ("Method Declaration"), (D.I.
12, Ex. A), and one on behalf of Tucker, himself
("Tucker Declaration"). (D.I. 12, Ex. B). The
Method Declaration attests that Tucker is the President of
Method "a Texas limited liability company, whose sole
member is Matthew Scott Tucker" and whose
"corporate headquarters are located at 7333 Jack Newell
Blvd. N., Suite 300, Fort Worth, Texas 76118."
(Id. at ¶¶ 2-4). The Method Declaration
states the following with respect to Method (D.I. 12, Ex. A
at ¶¶ 5-7):
5. Method is a small company, having less than 10 employees.
All of Method's employees reside in or, if they reside
elsewhere, are employed out of Texas. None of Method's
employees reside in Delaware, travel to Delaware for work, or
otherwise perform any of their job duties in Delaware. Method
also does not have any representatives or agents in the State
of Delaware, including any registered agents.
6. Method does not own or lease any offices or other
facilities in Delaware, does not have a Delaware telephone
number or mailing address, does not have any bank accounts in
Delaware, does not hold assets of any other kind in Delaware,
is not licensed to do business in Delaware, has never paid
any taxes of any kind to the State of Delaware, and has never
commenced any litigation in Delaware.
7. Method does not solicit business in Delaware, does not
advertise or market in Delaware, has never directly shipped
any pharmaceutical product to Delaware, and does not derive
substantial revenue from Delaware.
McKesson, the Method Declaration avers that "Method is
not affiliated with McKesson in any capacity and the two
companies are entirely independent of one another."
(Id. at ¶ 10). It explains (id. at
8. On July 25, 2017, Method sent a bid to McKesson
Corporation ("McKesson"), through McKesson's
sourcing joint-venture ClarusOne Sourcing Services
("ClarusOne"), for the supply of certain
pharmaceutical drug product. McKesson subsequently awarded
the bid to Method. On August 9, 2017, McKesson sent the
subject contract to Method for acceptance by email from
McKesson's Irving, Texas offices. None of the EEMT
product Method shipped to McKesson pursuant to this contract
was delivered by Method to McKesson in Delaware.
9. The communications between Method and McKesson relating to
this bid award involved, other than Method employees,
individuals located in Irving, Texas and London, United
Kingdom. These non-party individuals include Cristi Mahoney
and Nicholas Richardson located in Irving, and Elme Albertse
located in London. None of these communications involved
individuals located in Delaware, and none of these
communications occurred in Delaware.
while Method listed its EEMT drug on national pharmaceutical
databases -including Medi-Span and First DataBank Method
asserts that "[pharmaceuticals cannot be purchased from,
or sold by Method through these listing databases and
entities and persons cannot directly contact Method through
these databases." (Id. at ¶¶ 10-12).
Tucker Declaration attests that Mr. Tucker resides in Ft.
Worth, Texas. (D.I. 12, Ex. B at ¶ 3). He has never
resided, been employed, transacted business, paid taxes, held
bank accounts or assets, owned or leased property, or
commenced litigation in Delaware. (Id. at
¶¶ 4-8). He states that he has "never traveled
to the State of Delaware." (Id. at ¶ 9).
responds that "Method's sales activities establish
personal jurisdiction pursuant to 10 Del. C. §
3104(c)(1), (2), and (4)," because Method
entered into a distribution contract with McKesson
Corporation ("McKesson"), a Delaware corporation,
that distributes pharmaceuticals at a retail sale level
throughout this District, and throughout the United States. .
. . McKesson is the largest distributor of pharmaceutical
drugs and medical devices in the United States, and it ranks
5th on the Fortune 500 ranking of America's largest
corporations, with revenues in excess of $190 billion....
Method admits that it has no control over where McKesson
distributes its products.... Method is fully aware that
McKesson, the largest drug distributor in the United States,
distributes drug products nationwide through Walmart and Rite
Aid pharmacies. Method understands that McKesson's
nationwide distribution includes the state of Delaware, and
makes no allegation that its contract with McKesson excludes
its products from the Delaware market.
Method also admits that is has listed its EEMT product in the
national pharmaceutical databases Medi-Span and First
Databank.... These databases have nationwide reach and are an
essential advertising tool for drug products. Method promotes
its EEMT drug products in those databases so that Delaware
pharmacists will order its EEMT drug products, and Delaware
insurance companies will list its EEMT drug products in
formularies for reimbursement. . . . Method's nationwide
advertising of its EEMT drug products in the drug databases
along with its distribution contract with McKesson ensures
that its EEMT drug products will be dispensed in Delaware and
creates personal jurisdiction in Delaware over Defendants
Method and Tucker.
13 at 1-2 (internal citations omitted)). Plaintiff adds that
Method is also a pharmaceutical vendor for the Minnesota
Multistate Contracting Alliance for Pharmacy
("MMCAP") purchasing collective for pharmaceutical
products which Delaware has contracted to be a part of.
(Id. at 1, 8).
respect to Mr. Tucker, Plaintiff asserts that "Mr.
Tucker and Method are one and the same." (D.I. 13 at 12).
Mr. Tucker is the Founder and President of Method, and he
does not indicate that anyone else has any ownership interest
in the company. ... As such, Mr. Tucker has a clear personal
financial interest in the misconduct alleged in the
Complaint. The fiduciary shield doctrine does not apply to
Mr. Tucker because he was not merely acting at the direction
of Method. As Method's owner and President, his actions
were for his own individual pecuniary interest. He acted at
his own behest, not that of a supervisor, which is the type
of situation in which the fiduciary shield doctrine is
typically invoked. As Method's owner and President, Mr.
Tucker directly designed, facilitated, and negotiated a
distribution contract with McKesson. Further, he directed the
listing of Method's EEMT product on drug databases.
(Id. at 12-13).
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2)
to Rule 12(b)(2) of the Federal Rules of Civil Procedure, the
Court may dismiss a suit for lack of jurisdiction over a
person. When a defendant challenges a court's exercise of
personal jurisdiction under Rule 12(b)(2), "the
plaintiff bears the burden of establishing personal
jurisdiction by a preponderance of the evidence and must do
so by 'establishing with reasonable particularity
sufficient contacts between the defendant and the forum
state.'" Turner v. Prince Georges County Public
Schools, 694 Fed.Appx. 64, 66 (3d Cir. 2017)
(quoting Mellon Bank (East) PSFS, Nat'lAss'n v.
Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)). "To
meet this burden, the plaintiff must produce 'sworn
affidavits or other competent evidence,' since a Rule
12(b)(2) motion 'requires resolution of factual issues
outside of the pleadings.'" Brasure's Pest
Control, Inc. v. Air Cleaning Equip., Inc., C.A. No.
17-323-RGA-MPT, 2018 WL 337747, at *1 (D. Del. Jan. 9, 2018)
(quoting Time Share Vacation Club v. Atlantic Resorts,
Ltd., 735 F.2d 61, 67 n.9 (3d Cir. 1984)). "[W]hen
the court does not hold an evidentiary hearing on the motion
to dismiss, [however], the plaintiff need only establish a
prima facie case of personal jurisdiction and the plaintiff
is entitled to have its allegations taken as true and all
factual disputes drawn in its favor." Miller Yacht
Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004)
(citing Pinker v. Roche Holdings, Ltd., 292 F.3d 361
(3d Cir. 2002)).
requirements, one statutory and one constitutional, must be
satisfied for personal jurisdiction to exist over a
defendant. Bell Helicopter Textron, Inc. v. C & C
Helicopter Sales, Inc., 295 F.Supp.2d 400, 403 (D. Del.
2002). "First, a federal district court may assert
personal jurisdiction over a nonresident of the state in
which the court sits to the extent authorized by the law of
that state." Id. (citing Fed.R.Civ.P. 4(e)).
The Court must, therefore, "determine whether there is a
statutory basis for jurisdiction under the Delaware long-arm
statute." Id. (citing 10 Del. Code §
3104(c)). "Second, because the exercise of jurisdiction
must also comport with the Due Process Clause of the United
States Constitution, the Court must determine if an exercise
of. jurisdiction violates [defendants'] constitutional
right to due process." Id. (citing
International Shoe Co. v. Washington, 326
U.S. 310 (1945)); see also IMO Industries, Inc. v.
Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998).
long arm statute, 10 Del. C. § 3104, provides in
(c) As to a cause of action brought by any person arising
from any of the acts enumerated in this section, a court may
exercise personal jurisdiction over any nonresident, or a