Transfer recommended where the court lacks personal jurisdiction
Forest Laboratories Inc., et al. v. Cobalt Laboratories Inc., et al., C.A. No. 08-21-GMS-LPS, March 9, 2009.
Stark, M.J. Plaintiffs’ motions to transfer action as to certain defendants is granted. Certain defendants’ motion to dismiss for lack of personal jurisdiction is dismissed as moot.
Certain defendants (“Moving Defendants”) seek dismissal based on lack of personal jurisdiction. Moving Defendants are an Indian Company with its principal place of business in India whose wholly-owned subsidiary is a Delaware holding company. The Delaware company is a shell. The only action it has ever taken was to incorporate its wholly-owned subsidiary in New Jersey. The New Jersey defendant is the primary contact for the Indian company in the U.S. and Canada. The Indian company submitted an ANDA seeking approval to manufacture and distribute generic versions of memantine hydrochloride in the U.S. The ANDA was prepared in India and named the New Jersey company as the U.S. agent. The Delaware company did not participate in the preparation or submission. Neither the Indian nor the New Jersey company has any offices, facilities, employees etc. in Delaware. Neither company’s employees make regular visits to Delaware, nor do they sell products directly to retailers in the U.S. Moving Defendants do, however, purchase certain materials from Delaware companies. They also contract with certain Delaware entities regarding distribution. Certain clinical trials for defendants’ product were also conducted in Delaware. Sales representatives from India made a trip to DuPont to discuss safety standards but did not conduct any business relating to the product or the ANDA. Also, Moving Defendants have entered into certain agreements from time to time (not specifically related to the ANDA) that contain Delaware choice of law provisions. The Magistrate concludes that such contacts are insufficient to satisfy the requirements of Delaware’s Long Arm Statute. Nor is intent to sell sufficient where the product has not yet been introduced to Delaware. Because personal jurisdiction is lacking, the Magistrate recommends that the interests of justice require that the claims against Moving Defendants be transferred (rather than dismissed) to the District of New Jersey.
