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Javelin Pharms., Inc. v. Mylan Labs. Ltd.

United States District Court for the District of Delaware

December 1, 2017, Decided; December 1, 2017, Filed

C.A. No. 16-224-LPS

Opinion

MEMORANDUM ORDER

Pending before the Court is Defendants Mylan Laboratories [*2]  Limited ("MLL"), Mylan, Inc. ("Inc."), and Mylan Pharmaceuticals Inc.'s ("MPI," and collectively with MLL and Inc., "Mylan" or "Defendants") motion to dismiss for improper venue or, in the alternative, to transfer venue to the Northern District of West Virginia. Having considered the parties' motion briefing (D.I. 59, 65, 66) and letter briefing in response to the Court's September 11, 2017 Oral Order (D.I. 73, 74, 75, 76), and for the reasons stated below, IT IS HEREBY ORDERED that Mylan's motion (D.I.. 58) is DENIED WITHOUT PREJUDICE to renew after a period of venue-related discovery. IT IS FURTHER ORDERED that the parties shall meet and confer and, no later than December 8, 2017, submit a joint status report with their position(s) as to the scope and timing of the discovery to be taken pursuant to this Order.

The Venue Defense Was Not Waived

As an initial matter, Mylan's venue challenge is not untimely. As the Court of Appeals for the Federal Circuit recently held, "[t]he Supreme Court changed the controlling law when it decided TC Heartland1 in May 2017." In re Micron Tech., Inc., 875 F.3d 1091, 2017 WL 5474215, at *6 (Fed. Cir. 2017). Therefore, "[t]he venue objection was not available until the Supreme Court decided TC Heartland because, before then, it would [*3]  have been improper, given controlling precedent, for the district court to dismiss or to transfer for lack of venue." 875 F.3d 1091at *3. Hence, Mylan did not waive its challenge to venue by failing to press it until after TC Heartland. See id.

The Venue Defense Was Not Forfeited

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2017 U.S. Dist. LEXIS 201175 *

JAVELIN PHARMACEUTICALS, INC., HOSPIRA, INC., and JANSSEN PHARMACEUTICA N.V., Plaintiffs, v. MYLAN LABORATORIES LIMITED, MYLAN, INC., and MYLAN PHARMACEUTICALS INC, Defendants.

Prior History: Javelin Pharms., Inc. v. Mylan Labs., Ltd., 2017 U.S. Dist. LEXIS 166762 (D. Del., Oct. 10, 2017)

CORE TERMS

venue, regular, established place of business, discovery, entities, subsidiaries, place of business, venue-related, infringement, affiliate, purposes, places