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Abraxis Bioscience, LLC v. HBT Labs, Inc.

United States District Court, D. Delaware

May 24, 2019

ABRAXIS BIOSCIENCE, LLC and CELGENE CORPORATION, Plaintiffs,
v.
HBT LABS, INC., Defendant.

          MEMORANDUM ORDER

         Currently pending before the Court is Defendant's Motion to Dismiss and to Transfer. (D.I. 7). The parties have fully briefed the issues (D.I. 8, 23, 27) and filed supplemental authority. (D.I. 34, 35). I have fully considered the parties' filings.

         I. BACKGROUND

         Plaintiffs Abraxis Bioscience, LLC and Celgene Corporation brought suit against Defendant HBT Labs on December 19, 2018 alleging infringement of twelve patents under 35 U.S.C. § 271(e). (D.I. 1). The patents-in-suit[1] relate to various methods of use for Plaintiffs' Abraxane® drug product. Defendant has filed a New Drug Application ("NDA") with the Food and Drug Administration ("FDA") for approval of a generic of Plaintiffs' Abraxane® product. (D.I. 8 at 2; D.I. 23 at 3). Plaintiffs initiated suit after receiving written notice of Defendant's Paragraph IV certification pursuant to 21 U.S.C. § 355(b)(2)(A). (D.I. 6 ¶ 27). The notice informed Plaintiffs that Defendant seeks approval to market its proposed generic of Abraxane and alleged that the claims of the patents-in-suit are invalid, unenforceable, and/or will not be infringed by the activities described in Defendant's NDA. (Id.).

         After Plaintiffs filed suit, Defendant filed this motion seeking to (1) dismiss Plaintiff Celgene Corporation for lack of standing, (2) transfer the case to the Central District of California, and (3) dismiss Counts I, IV, VI, VII, and IX-XII of the Complaint for failure to state a claim. (D.I. 7; D.I. 8).

         II. DISCUSSION

         A. Standing

         Plaintiff Celgene Corporation does not oppose Defendant's motion to dismiss Celgene from the case. (D.I. 23 at 3). As that portion of the motion is unopposed, I will dismiss Celgene as a Plaintiff.

         B. Motion to Transfer under 28 U.S.C. § 1404(a)

         Defendant also requests that I transfer this case to the United States District Court for the Central District of California under 28 U.S.C. § 1404(a). (D.I. 8 at 6). Section 1404(a) provides, "For the convenience of the parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." It requires a two-step analysis. First, I must determine whether this case could have been brought in the Central District of California. Second, I must determine whether the Defendant has shown that the balance of the parties' convenience is strongly in favor of transfer to the Central District of California.

         Both Plaintiff Abraxis and Defendant are Delaware entities. (D.I. 23 at 5). The parties agree that Defendant's principal place of business is in the Central District of California, but dispute whether Plaintiff Abraxis' principal place of business is in the Central District of California or the District of New Jersey. (D.I. 8 at 7; D.I. 23 at 5). As it is undisputed that Defendant's principal place of business is located in the Central District, Plaintiff could have brought this action in the Central District. Thus, the only issue under § 1404(a) is whether I should exercise my discretion to transfer the case to California.

         It is the Defendant's burden "to establish that a balancing of proper interests weigh[s] in favor of the transfer." Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). "[U]nless the balance of convenience of the parties is strongly in favor of [the] defendant, the plaintiffs choice of forum should prevail." Id. (internal quotation marks and citation omitted). The Third Circuit has set forth a non-exhaustive list of private and public interest factors to be weighed by a court in considering transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995). The private interests have included: (1) plaintiffs forum preference as manifested in the original choice; (2) the defendant's preference; (3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their relative physical and financial condition; (5) the convenience of the witnesses-but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). Id. at 879. The public interests have included: (7) the enforceability of the judgment; (8) practical considerations that could make the trial easy, expeditious, or inexpensive; (9) the relative administrative difficulty in the two fora resulting from court congestion; (10) the local interest in deciding local controversies at home; (11) the public policies of the fora; and (12) the familiarity of the trial judge with the applicable state law in diversity cases. Id. at 879-80.

         1. Plaintiffs Forum Preference

         This factor weighs against transfer. Plaintiffs choice to file this case in the District of Delaware was motivated by legitimate and rational reasons including the place of incorporation of both parties and Delaware's proximity to Plaintiffs corporate headquarters in New Jersey.[2]Defendant asserts that I should not give weight to Plaintiffs choice to file in Delaware because Plaintiff initially also filed the same suit in the District of New Jersey. (D.I. 8 at 8). I disagree. Plaintiffs motivations for originally filing in New Jersey also motivated filing this suit here in Delaware, specifically the proximity of Plaintiff s headquarters in New Jersey. (D.I. 23 at 5). Additionally, I will not discount Plaintiffs choice of forum based on a lack of physical ties to Delaware. Plaintiff incorporated in Delaware and chose to avail itself of that venue; physical ties are more appropriately considered under later factors. Moreover, Shutte recognizes that the plaintiffs choice of forum should be the "paramount consideration" in the § 1404(a) analysis. Shutte, 431 F.2d at 25. Plaintiffs forum preference and the reasons for that choice weigh against transfer.

         2. Defendant's Forum Preference

         This factor favors transfer. Defendant has legitimate and rational reasons for wanting to litigate the case in the Central District of California, specifically the proximity to its own corporate headquarters. (D.I. 8 at 9). Plaintiff argues that I should discount Defendant's preference because Defendant has chosen to incorporate in Delaware, thereby opening itself to the possibility of litigation against it in this District. (D.I. 23 at 12). However, incorporation is more properly considered with other factors, and therefore I will not discount Defendant's preference. Thus, Defendant's preference weighs in favor of transfer.

         3. Whether the Claim Arose Elsewhere

         Plaintiff is suing under 35 U.S.C. § 271(e) based on Defendant's notice of its filing an NDA for an Abraxane® generic drug product. Plaintiff is correct that if the Defendant's application were granted, infringing acts would likely occur nationwide, including in the District of Delaware. (D.I. 23 at 7). However, as Defendant represents, the majority of the infringing acts, including manufacture, ...


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