Not a Lexis Advance subscriber? Try it out for free.

Celgene Corp. v. Hetero Labs Ltd.

United States District Court for the District of New Jersey

March 2, 2018, Filed

Civil Action No. 17-3387 (ES) (MAH)



Salas, District Judge

Pending before the Court is Defendants Mylan Pharmaceuticals Inc., Mylan Inc., and Mylan N.V.'s (collectively, "Mylan" or "Mylan Defendants") motion to dismiss for improper venue, lack of subject-matter jurisdiction, and failure to state a claim under Federal Rules of Civil Procedure 12(b)(3), 12(b)(1), and 12(b)(6), respectively. (D.E. No. 56). The Court has considered the parties' submissions and decides the matter without oral argument. See Fed. R. Civ. P. 78(b). For the following reasons, Mylan's motion is DENIED without prejudice.

I. Improper Venue under Rule 12(b)(3)

a. Legal Standard

Mylan seeks dismissal for improper venue under Rule 12(b)(3). (D.E. No. 56-1 ("Mylan Mov. Br.") at 1). Courts are divided on which party bears the burden on a Rule 12(b)(3) motion in a patent case. Compare Galderma Labs., L.P. v. Teva Pharms. USA, Inc., No. 17-1076, 290 F. Supp. 3d 599, 2017 U.S. Dist. LEXIS 213725, 2017 WL 6505793, at *3 (N.D. Tex. Nov. 17, 2017) (plaintiff bears the burden), with Mallinckrodt IP v. B. Braun Med. Inc., No. 17-365, 2017 U.S. Dist. LEXIS 205593, 2017 WL 6383610, at *2 (D. Del. Dec. 14, 2017) (party opposing venue bears the burden); [*3]  see also 14D Wright & Miller, Federal Practice & Procedure § 3826 (4th ed. 2017) ("There are many cases—predominantly, but not exclusively, from the Third and Fifth Circuits—holding that the burden is on the objecting defendant to establish that venue is improper, because venue rules are for the convenience and benefit of the defendant.").

Mylan argues that Federal Circuit law governs the burden-of-proof inquiry. (D.E. No. 110 ("Mylan Reply Br.") at 6-7).1 Mylan relies on Federal Circuit precedent that instructs:

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2018 U.S. Dist. LEXIS 34025 *; 2018 WL 1135334

CELGENE CORPORATION, Plaintiff, v. HETERO LABS LIMITED, et al., Defendants.


venue, infringement, discovery, venue-related, patent, bears, established place of business, improper venue, regular, reside, motion to dismiss, subject-matter, burden of proof, further order, argues, courts, renew

Civil Procedure, Preliminary Considerations, Venue, Evidence, Burdens of Proof, Allocation, Patent Law, Jurisdiction & Review, Personal Jurisdiction & Venue, Personal Jurisdiction & Venue, Foreign Defendants, Places of Business & Residence, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Discovery & Disclosure, Discovery, Justiciability, Case & Controversy Requirements, Actual Controversy, Subject Matter Jurisdiction, Declaratory Judgments, Jurisdiction, Jurisdiction Over Actions