Objection to M.J.'s report declining to dismiss Defendant's U.S. subsidiary is overruled
AstraZeneca Pharmaceuticals LP, et al. v. Aurobindo Pharma Limited, et al., MDL No. 08-1949-JJF-LPS, Civ. No. 07-810-JJF-LPS, February 25, 2009.
Farnan, J. Objection to the Magistrate Judge’s ruling is overruled and the Magistrate Judge’s disposition of Defendant Aurobindo’s motion to dismiss is adopted by the court.
Defendant contends that Plaintiff’s section 271(e)(2) claim should be dismissed for lack of subject matter jurisdiction because Aurobindo Pharma USA, Inc. did not prepare or file or have any substantive knowledge of the ANDA at issue. Defendant contends its parent was the only responsible entity. Defendant contends further that its employee who signed the ANDA signed it in his individual capacity as an agent for the parent and not the US wholly owned subsidiary. The Court rejects Defendant’s contention that Magistrate Stark erred in applying the standards of Rule 12(b)(6) rather than Rule 12(b)(1), finding no evidence section 271(e)(2) was intended by Congress to be jurisdictional. The allegations in the Complaint, accepted as true, provide the basis for this court’s jurisdiction.
