Case 3:12-cv PGS-DEA Document 111 Filed 08/13/12 Page 1 of 3 PageID: 1162

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1 Case 3:12-cv PGS-DEA Document 111 Filed 08/13/12 Page 1 of 3 PageID: 1162 Joseph M. Alioto, SBN Theresa D. Moore, SBN Jamie L. Miller, SBN ALIOTO LAW FIRM 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) LAW OFFICE OF JAMES M. DOMBROSKI James M. Dombroski, SBN P.O. Box Petaluma, CA Telephone: (707) Facsimile: (707) jdomski@aol.com Attorneys for Plaintiffs RP Healthcare, et al. [ADDITIONAL COUNSEL APPEAR ON LAST PAGE] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY IN RE: LIPITOR ANTITRUST LITIGATION MDL NO Master Docket No.: 3:12-cv-2389(PGS/DEA) This Document Relates To: RP Healthcare, Inc., et al. v. Pfizer, Inc., et al., No. 3:12-cv-1059-JSW NOTICE OF MOTION AND MOTION TO REMAND Honorable Peter G. Sheridan (Document Filed Electronically) PLEASE TAKE NOTICE that on September 17, 2012, at the Clarkson S. Fisher Building and U.S. Courthouse, 402 East State Street, Trenton, New Jersey 08608, the undersigned attorneys for RP Healthcare, et al. will move before the U.S. District Court 1

2 Case 3:12-cv PGS-DEA Document 111 Filed 08/13/12 Page 2 of 3 PageID: 1163 for the District of New Jersey, Hon. Peter G. Sheridan, U.S.D.J., for an Order Granting Plaintiffs Motion for Remand. In support of this Motion, Plaintiffs will reply upon the Declaration of James M. Dombroski and the brief which are filed in support hereof. DATED: August 13, 2012 /s/ Joseph M. Alioto Joseph M. Alioto Alioto Law Firm 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) Counsel for RP Healthcare Inc., et al. (3:12- cv-1059-jsw) 2

3 Case 3:12-cv PGS-DEA Document 111 Filed 08/13/12 Page 3 of 3 PageID: 1164 Joseph M. Alioto, Sr. Angelina Alioto-Grace Theresa Driscoll Moore Tom Pier Jamie L. Miller ALIOTO LAW FIRM 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) jmalioto@aliotolaw.com tmoore@aliotolaw.com jmiller@aliotolaw.com tpier@aliotolaw.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) Russell F. Brasso FOREMAN AND BRASSO 930 Montgomery Street, Suite 600 San Francisco, CA Telephone: (415) Facsimile: (415) brasso@foremanandbrasso.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) Jeffery K. Perkins LAW OFFICES OF JEFFERY K. PERKINS 1550-G Tiburon Boulevard, #344 Tiburon, CA Telephone: (415) Facsimile: (415) jefferykperkins@aol.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) James M. Dombroski LAW OFFICES OF JAMES M. DOMBROSKI P.O. Box Petaluma, CA Telephone: (707) Facsimile: (707) jdomski@aol.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) John Haslet Boone LAW OFFICES OF JOHN H. BOONE 4319 Sequoia Drive Oakley, CA Telephone: (415) Facsimile: (415) deacon38@gmail.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) 3

4 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 1 of 22 PageID: 1165 Joseph M. Alioto, SBN Theresa D. Moore, SBN Jamie L. Miller, SBN ALIOTO LAW FIRM 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) LAW OFFICE OF JAMES M. DOMBROSKI James M. Dombroski, SBN P.O. Box Petaluma, CA Telephone: (707) Facsimile: (707) jdomski@aol.com Attorneys for Plaintiffs RP Healthcare, et al. [ADDITIONAL COUNSEL APPEAR ON LAST PAGE] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY IN RE: LIPITOR ANTITRUST LITIGATION MDL NO Master Docket No.: 3:12-cv-2389(PGS/DEA) This Document Relates To: RP Healthcare, Inc., et al. v. Pfizer, Inc., et al., No. 3:12-cv-1059-JSW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND Honorable Peter G. Sheridan (Document Filed Electronically) 1

5 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 2 of 22 PageID: 1166 TABLE OF CONTENTS I. INTRODUCTION...5 II. STATEMENT OF THE ISSUES TO BE DECIDED...5 III. PRELIMINARY STATEMENT...6 A. No Federal Question Presented...6 B. Defendants Removal Petition is Defective...6 IV. STATEMENT OF FACTS...7 A. The Complaint Attached as Exhibit D...7 B. Defendants Removal Petition...10 C. Factors That Distinguish This Case From the Class Actions in the MDL...11 V. ARGUMENT...12 A. This Court Does Not Have Subject Matter Jurisdiction Over Plaintiffs Complaint Because Federal Patent Law Does Not Create the Causes of Action Nor Is Federal Patent Law a Necessary Element of the Plaintiffs Claims...12 B. Defendants Bear a Heavy Burden To Justify Removal...13 C. Defendants Argument That Plaintiffs Causes of Action are Created by Federal Patent Law or That Federal Patent Law is a Necessary Element of Plaintiffs Claim Has Been Rejected By This Court And Other Courts Defendants Removal is Based Upon Groundless Speculation If There Is Any Patent Law Issue in This Case, it Will Arise as Part of a Defense, and Not as an Element of the Plaintiffs Antitrust Claims...18 D. The Petition for Removal is Procedurally Defective on its...19 Face and Should Be Remanded...19 VI. CONCLUSION

6 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 3 of 22 PageID: 1167 CASES TABLE OF AUTHORITIES Altman v. Bayer Corporation, 125 F.Supp.2d 666 (S.D. N.Y. 2000)...17 AT&T v. Integrated Network Corp., 972 F.2d 1321 (Fed. Cir. 1992)...14 Boyer v. Snap-On Tools Corp. 913 F.2d 108 (3d Cir. 1990)...13 Boggild v. Kenner Products, 853 F.2d 465 (6th Cir. 1988)...19 Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988)...11, 14 Conroy v. Fresh Del Monte Produce, Inc., 325 F.Supp.2d 1049 (N.D. Cal. 2004)...17 Dawn Equipment Co. v. Micro-Trak Systems, Inc. 186 F.3d 981 (7th Cir. 1999)...15 Duncan v. Stuetzle, 76 F.3d 1480 (9th Cir.1996)...14 Emrich v. Touch Ross & Co., 846 F.2d 1190 (9th Cir. 1988)...20 Evanston Insurance Co. v. Cozen O'Connor, PC Civil Action No (PGS) (USDC N.J. 2007)...20 Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983)...15,18 In re Cipro Cases I and II, 134 Cal.Reptr. 3, 165 (Cal. Ct. App. 2011)...16,17 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994)...12 Kysor Industrial Corp. v. Pet, Inc., 459 F.2d 1010 (6th Cir. 1972), cert. denied, 409 U.S. 980 (1972)...19 Landman v. Borough of Bristol 896 F.Supp.406 (E.D. Pa. 1995)...7,20 Morse v. Nintendo of America, Inc WL *1 (N.D. Cal. 1990)

7 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 4 of 22 PageID: 1168 Novamedix, Ltd. v. NDM Acquisition Corp., 166 F.3d 1177 (Fed. Cir. 1999)...18 Patterson v. John Preus, Invision Diagnostics, LLC 2009 WL (N.D. Cal. 2009)...17 Postal Instant Press v. Clark 741 F.2d Prize Frize, Inc. v. Matrix (U.S.) Inc. 167 F.3d 1261 (9th Cir. 1999)...13,14 Samuel-Bassett v. KIA Motors, Inc. 357 F.3d 392 (3d Cir. 2004)...13 Simpson v. Peterson Tractor Co., Nos. C MJJ, C MJJ 2000 WL (N.D.Cal. Sept. 5, 2000)...19 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)...13 FEDERAL STATUTES 28 U.S.C U.S.C STATE STATUTES California Business and Professions Code (The Cartwright Act) 16720, et seq...7, 11 California Business and Professions Code (The Unfair Competition Act) 17200, et seq...7 4

8 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 5 of 22 PageID: 1169 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFS MOTION TO REMAND I. INTRODUCTION This is a private antitrust suit brought by nine pharmacists doing business in California under section of the California Business and Professions Code alleging violations of and 17200, et seq. of the California Business and Professions Code causing damage and injury by reason of the violations, and under the provisions of California law, seeking trebling amounts of the damages, plus reasonable attorneys fees and the costs of suit. The Plaintiffs allege that the Defendants Pfizer and Ranbaxy, with the compliance of the Defendant Daiichi Sankyo, combined and conspired and formed a trust to fix the prices for Lipitor and the generic produced by Ranbaxy and to divide markets and customers. Also, subsequently, Pfizer solicited agreements for compensation with major wholesalers to require the pharmacists to purchase Lipitor rather than the less expensive generic. This case was filed in Sonoma County, California. The Defendants removed the case from Sonoma County to the United States District Court for the Northern District of California. This Motion seeks to remand this case to Sonoma County, California. The grounds for this Motion to Remand are that (1) federal patent law does not create Plaintiffs causes of action and is not a necessary element of Plaintiffs claims; and (2) Each Defendant did not consent to the removal ab initio. Accordingly, Plaintiffs Motion to Remand this case to Sonoma County, California, should and must be granted. II. STATEMENT OF THE ISSUES TO BE DECIDED A. Whether federal patent law creates Plaintiffs causes of action or whether federal patent law is a necessary element of Plaintiffs claims? Answer: No. The Complaint charges the Defendants with violations of the antitrust and unfair competition laws of the State of California and does not rely on any federal patent law. 5

9 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 6 of 22 PageID: 1170 B. Whether each Defendant consented to the removal ab initio? Answer: No. Not all of the Defendants served consented to the removal ab initio. For this reason alone, the Motion to Remand should and must be granted. III. PRELIMINARY STATEMENT A. No Federal Question Presented Federal patent law does not create Plaintiffs causes of action and federal patent law is not a necessary element of Plaintiffs claims. This case seeks adjudication of California law only. Moreover, Defendants do not and cannot meet the heavy burden of establishing a basis for federal subject matter jurisdiction over Plaintiffs California law claims. As Defendants concede, none of Plaintiffs claims are created by federal law. The Defendants Removal Petition ( RP ) rests on speculation that some issues regarding Defendants respective rights under patent law may be relevant to Plaintiffs claims. This is wrong. As this and other courts have previously held in cases virtually identical to this one, the only relevance of patent law to this case is to a possible defense to be raised by Defendants and not to an element of any of Plaintiffs claims. A federal element to a defense does not form the basis for federal question jurisdiction. B. Defendants Removal Petition is Defective Not all Defendants consented to the Petition for Removal ab initio. The case, therefore, must be remanded. Defendants RP is procedurally defective because they failed to obtain consent from all properly served Defendants. In the RP, Defendants admit that, all defendants who have been properly joined and served must join in or consent to the removal of the action. (RP at page 2.) Counsel for Pfizer who signed the removal petition states that Defendant Daiichi Sankyo Company, Limited, Defendant Ranbaxy Laboratories Limited and Defendant Ranbaxy, Inc. were not served and therefore their consent is not required (RP at 2.) However, Defendants Ranbaxy Laboratories Limited and Defendant Ranbaxy, Inc. were properly served before Defendants filed their removal petition. 6

10 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 7 of 22 PageID: 1171 Counsel for Pfizer s declaration in support of the RP states at paragraph 9: Defendants Pfizer Ireland Pharmaceuticals, Pfizer Manufacturing Ireland (formerly known, among other things, as Warner-Lambert Export, Ltd.), Daiichi Sankyo Company, Limited (incorrectly named in the Complaint as Daiichi Sankyo, Ltd.), Ranbaxy Laboratories Limited, and Ranbaxy, Inc. have not been served in this action. (Emphasis added.) The Proofs of Service of Summons for two of those Defendants were filed in the Sonoma County Superior Court on February 22, See Exhibits A and B attached to the Declaration of James M. Dombroski. In addition, the docket sheet for the Sonoma County Superior Court (Exhibit C) clearly shows that Defendant Ranbaxy Laboratories Limited and Defendant Ranbaxy, Inc. were served. The statements made in the RP and the supporting declaration of Pfizer s counsel are plainly false and do not conform to the procedural requirements for removal. [O]ne defendant s attempt to speak on behalf of another defendant will not suffice. Landman v. Borough of Bristol, 896 F.Supp.406, 408 (E.D. Pa. 1995). First, Defendants counsel signed the Petition for Defendants whom he did not represent, which is expressly prohibited. Second, Defendants counsel did not state that Defendant Pfizer, Inc. consented to the removal. For these reasons, remand should be granted. IV. STATEMENT OF FACTS 1 A. The Complaint Attached as Exhibit D On January 31, 2012, Plaintiff RP Healthcare, Inc., et al., filed an action in the Superior Court of the State of California in the County of Sonoma, asserting exclusively state law claims, under California Business and Professions Code section 16720, et seq. (The Cartwright Act), California Business and Professions Code section (The Unfair Competition Act). Plaintiff sought damages, restitution and attorney s fees. The 1 All referenced exhibits are attached to the Declaration of James M. Dombroski. The only facts relevant to Defendants removal and to this motion for remand are those alleged in the Plaintiffs Complaint, no supporting affidavit is necessary. Plaintiffs Complaint is alleged as Exhibits D. 7

11 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 8 of 22 PageID: 1172 basis for the action was summarized in paragraphs 1 through 19 of the Complaint, as follows: 1. Pfizer is the largest pharmaceutical company in the world. It is the largest bio-pharmaceutical company in the four global markets, the United States, the European Union, Japan and Latin America. It is also the largest United States headquartered bio-pharmaceutical company in what Pfizer describes as the Emerging Markets of Asia, the Middle East, Africa, central and Eastern Europe, Russia, Turkey, and South Korea. 2. Lipitor is a drug used to treat high cholesterol, containing atorvastatin calcium as its active ingredient. Lipitor was purchased by Pfizer as part of its acquisition of Warner-Lambert in 2000, to prevent Lipitor from going to a competitor. 3. Lipitor is the best-selling drug in the history of the pharmaceutical business. 4. Lipitor sales under Pfizer s regime were and are over $13 billion per year worldwide, more than $1 billion per month. Of Pfizer s total annual revenue from Lipitor, $7 billion per year was from the United States alone. 16 millions Americans take Lipitor every day. 5. Lipitor has constituted 25-30% of the total revenues of Pfizer, since 2006 or earlier. For several years, defendant Pfizer has enjoyed billions of dollars in revenue and profits from the prescription drug Lipitor. 6. The main patent on the active ingredient in Lipitor (atorvastatin) expired on March 24, The enantimer patent on a particular form of the Lipitor molecule was set to expire on June 28, 2011, but was invalidated by the Court of Appeals in 2006 and not reissued until January In 2003, Ranbaxy, the largest pharmaceutical company in India, developed a generic of Lipitor. In order to sell their generic in the United States in competition with Lipitor, Ranbaxy challenged the validity of the Lipitor patents. 9. Because of Ranbaxy's early challenge of the Lipitor patents under the 1984 Hatch-Waxman law, Ranbaxy gained the exclusive right to sell its generic and preclude all other generics for 180 days after either the Lipitor patents were declared invalid or the patents expired. 8

12 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 9 of 22 PageID: In July 2006, Jeffrey Kindler became Chief Executive Officer of Pfizer. 11. In December 2006, Jeffrey Kindler became Chairman of the Board of Pfizer. 12. In June 2008, Pfizer s common stock dropped in value by 32%, the lowest it had been in the last decade due to investors concerns over the expiration of the Lipitor patents. The expiration of the Lipitor patents and generics entry into the market would impact 30% of Pfizer s business and substantially decrease Pfizer s revenue. 13. Facing a dramatic reduction in future revenue with the loss of exclusivity of Lipitor, Pfizer entered into an unlawful agreement with Ranbaxy to delay the entry of generic versions of Lipitor into the United States market for up to 20 months after its patents had expired. 14. The fundamental terms of this agreement were that Ranbaxy would not enter the United States market with its Lipitor generic until November 2011; and that, at that time, and during the six months of its exclusivity as a generic to Lipitor, would price the generic at or slightly lower than the price charged by Pfizer for Lipitor. Furthermore, Ranbaxy agreed to remain in the bottleneck, preventing other generics from entering the United States market until the summer or later of In return, Ranbaxy was authorized to sell generic Lipitor in seven other countries -- Australia, Canada, Belgium, Germany, Italy, the Netherlands and Sweden before the Lipitor-related patents expiration. Pfizer also agreed to drop its challenge to Ranbaxy s current sale of a generic Lipitor in Brunei, Malaysia, Peru and Vietnam. 15. It is that agreement and that delay in the entry of generic versions of Lipitor onto the United States market that are the source of the anticompetitive behavior alleged herein. 16. After the expiration of the extended patent hereinabove alleged, defendant Pfizer entered into an agreement with defendant CVS CAREMARK CORPORATION, HEALTHNET, INC. CALIFORNIA PHYSICIANS SERVICE, INC. and on information and belief, other unknown pharmacy benefit managers and doctors, to boycott generic Lipitor and attempt to monopolize the statin market. 17. CVS Caremark Corporation is the largest pharmacy care company in the United States. It is a conglomerate whose business segments include a leading pharmacy benefits manager. This segment provides a full range of PBM services including mail order pharmacy services, specialty pharmacy services, plan-design and administration, formulary management and 9

13 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 10 of 22 PageID: 1174 claims processing. Its clients are employers, insurance companies, unions, government employee groups, managed care organizations, and other sponsors of health benefit plans. 18. Health Net, Inc. is a large pharmacy care company. It is a conglomerate whose business segments include a leading pharmacy benefits manager. This segment provides a full range of PBM services including plan-design and administration, formulary management and claims processing. Its clients are employers, insurance companies, unions, government employee groups, managed care organizations, and other sponsors of health benefit plans. 19. California Physicians Service, Inc. is a large pharmacy care company. It provides a full range of PBM services including plan-design and administration, formulary management and claims processing. Its clients are employers, insurance companies, unions, government employee groups, managed care organizations, and other sponsors of health benefit plans. Plaintiffs made no allegation regarding the validity or enforceability of any patent relating to Lipitor or regarding the merit of the patent infringement claim that Pfizer litigated against Defendant Ranbaxy. To the contrary, Plaintiffs alleged that the market allocation agreement, under which Pfizer, the party that claimed to hold an enforceable patent, agreed to make substantial payments to Ranbaxy, bears no relation to a patent dispute, as alleged in paragraph 15 of the Complaint. It is that agreement and that delay in the entry of the generic version of Lipitor onto the United States market that are the source of the anti-competitive behavior alleged herein. As alleged in paragraph 13 of the Complaint,... Pfizer entered into an unlawful agreement with Ranbaxy to delay the entry of generic versions of Lipitor into the United States for up to 20 months after its patents had expired. B. Defendants Removal Petition The sole basis for that removal, filed on March 2, 2012, was federal question jurisdiction under 28 U.S.C and Relying on the U.S. Supreme Court s 2 Plaintiff alleged, in paragraphs 46 and 47 of the Complaint, that Defendant Health Net, Inc. is a corporation headquartered in California and Defendant California Physician Service, Inc. maintains its principal place of business in California. 10

14 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 11 of 22 PageID: 1175 opinion in Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988), Defendants argued that an essential element of plaintiff s state law claims requires resolution of a substantial question of federal patent law. Notice of Removal 12. That argument is wrong. The basis of Plaintiffs state law claims is an anticompetitive agreement, in violation of the antitrust law of the State of California, Cal. Bus. & Prof. Code et seq. (the Cartwright Act ), to eliminate competition, fix prices, and exercise monopoly control over the relevant market. Plaintiffs claims do not arise from federal patent laws. C. Factors That Distinguish This Case From the Class Actions in the MDL Four days after the removal of this case, on March 6, 2012, Defendants filed a Notice with the Judicial Panel on Multidistrict Litigation, advising the panel of the pendency of this action as a potential tag-along to MDL No Plaintiffs are nine retail pharmacies in Northern California who purchase Lipitor, both directly and indirectly, but primarily indirectly through wholesalers, for resale to patient-consumers and claim individual damages for their overcharges. 1. The RP Healthcare case alleges only one simple question of fact that are common to the actions previously transferred to the District of New Jersey and assigned to Judge Sheridan, i.e. the Ranbaxy agreement; 2. The RP Healthcare case is not a class action. It is a private right of action based upon violation of the California antitrust statutes; 3. Discovery will be limited to the Pfizer contracts with Ranbaxy, agreements with the public benefit managers, including executive summaries and depositions from the plaintiffs and executives signing the disputed contracts. 4. Because the RP Healthcare case is not a class action, there is no necessity for class certification, class notice, expert declarations of manageability, etc.; Defendants concede this allegation and admit that there is no basis for diversity jurisdiction. 11

15 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 12 of 22 PageID: The RP Healthcare case does not challenge the Lipitor related patents based upon fraud on the Patent Office and, accordingly, does not require expert testimony, patent validity, analysis of prior art, and communications with the Patent Office; 6. The Plaintiffs in The RP Healthcare case make no claims that arise under federal law. The federal court lacks subject matter jurisdiction. A timely motion for remand was filed. The RP Healthcare Plaintiffs claims are based entirely on California law and are premised on a rule of law that currently is before the Supreme Court of California, i.e. the legality of private patent extension agreements. Defendants in RP Healthcare have vigorously attempted to delay the hearing on RP Health Care s motion for remand by: (1) opposing the ex parte application to hear the motion for remand on shortened time; (3) after the Plaintiffs ex parte application was denied, Plaintiffs motion for remand was set for hearing on April 27, 2012; (3) thereafter, Defendants applied ex parte to continue the hearing to June 22, 2012, which the Court granted, setting the hearing on June 22, 2012; (4) on May 11, 2012, Defendants filed their motion to stay this action pending a ruling from the JPML regarding CTO-1, which the Court granted. Attached as Exhibit E is the Order Granting Motion for Stay and Denying Motion for Remand Without Prejudice. V. ARGUMENT A. This Court Does Not Have Subject Matter Jurisdiction Over Plaintiffs Complaint Because Federal Patent Law Does Not Create the Causes of Action Nor Is Federal Patent Law a Necessary Element of the Plaintiffs Claims As courts of limited jurisdiction, federal courts only possess the powers authorized by the Constitution and statutes. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Federal courts must presume that a potential matter lies outside 12

16 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 13 of 22 PageID: 1177 their authority, and the party asserting jurisdiction bears the burden of proving to the contrary. Id. A party must establish subject matter jurisdiction as a threshold matter because without it, the court cannot proceed at all in any cause. Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 94 (1998). In the absence of subject matter jurisdiction, the only function remaining to the court is that of announcing the fact and dismissing the case. Id. (citations omitted). In the Complaint filed in Sonoma County, Plaintiffs alleged violations of state law only under the Cartwright Act and the California Unfair Competition law. Any mention of federal statute in Plaintiffs complaint are merely references and are not a basis for the Plaintiffs action. Accordingly, this Court lacks subject matter jurisdiction. B. Defendants Bear a Heavy Burden To Justify Removal On a motion to remand, the party asserting jurisdiction (the removing party) bears the burden of establishing that the action is properly before the Court. Samuel-Basselt v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Moreover, as federal courts are of limited jurisdiction, removal statutes should be construed strictly against removal with all doubts resolved in favor of remand. Id.; See also Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction. Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). See also Morse v. Nintendo of America, Inc., 1990 WL *1 (N.D. Cal. 1990). [F]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996). The mere presence of patent issues is not a sufficient basis for patent jurisdiction. Prize Frize, 167 F.3d at 1264 (holding that federal courts had no patent law jurisdiction over a dispute concerning the ownership of patents). See also AT&T v. 13

17 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 14 of 22 PageID: 1178 Integrated Network Corp., 972 F.2d 1321, 1325 (Fed. Cir. 1992) (quoting Consolidated World Housewares, Inc. v. Finkle, 831 F.2d 261, 265 (Fed.Cir.1987)). The Ninth Circuit has clearly foreclosed Defendants basis for removal, as discussed in Prize Frize: Prize Frize alleges that the defendants, through a series of unfair unlawful and collusive actions, deprived Prize Frize of its ownership of, among other things, four patents. As in Christianson, patent law did not create Prize Frize s unfair competition, breach of contract and conspiracy claims. Claims concerning patent ownership do not create federal jurisdiction. The fact that the state law remedies that Prize Frize seeks for alleged trade secret infringement may tangentially involve issues of patent ownership does not convert the state cause of action into federal law claims. Prize Frize, Inc., 167 F.3d at 1264; See also Postal Instant Press v. Clark, 741 F.2d 256, 257 (9 th Cir. 1984). In Christianson, v. Colt Industries Operating Corp., supra, 486 U.S. 800, the Supreme Court defined the parameters of 28 U.S.C. 1338(a), which grants federal district courts jurisdiction over any action arising under any Act of Congress relating to patents. The action was brought by a former employee of Colt Industries who established his own firearm parts business in competition with Colt. He based the action on federal antitrust statutes and alleged that Colt drove his company out of business through several methods, including making false allegations that he had misappropriated trade secrets. Over the course of the litigation it became clear that one of his theories for recovery was that any trade secrets he had taken with him from Colt were unenforceable due to the invalidity of the patents with which they were associated. As a result, the parties disputed whether the case invoked the Federal Courts patent law jurisdiction, and an unusual parallel dispute arose between the U.S. Courts of Appeals for the Seventh and Federal Circuits, with each court transferring the appeal back to the other. The Supreme Court held that the Federal Circuit was correct in finding no jurisdiction under Section 1338(a). The Court reaffirmed its previous conclusion that the language in that statute 14

18 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 15 of 22 PageID: 1179 should be construed similarly to parallel language in the general federal question statute, 28 U.S.C. 1331(a). 486 U.S. at Thus, adapting language from Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983), the Supreme Court held: Linguistic consistency, to which we have historically adhered, demands that 1338(a) jurisdiction likewise extend only to those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims. 486 U.S. at (emphasis added). The Supreme Court found no jurisdiction under Section 1338(a) because although federal patent law might have been an essential element under one of the plaintiff s theories of recovery, it was not an essential element to any of the stated causes of action, since the plaintiff also stated alternative theories of recovery that had nothing to do with Colt s patents or their validity. Id. at The Court explained that [t]he well-pleaded complaint rule... focuses on claims, not theories... and just because an element that is essential to a particular theory might be governed by federal patent law does not mean that the entire... claim arises under patent law. Id. at 811 (citations omitted). See also Dawn Equipment Co. v. Micro-Trak Systems, Inc., 186 F.3d 981, 986 (7th Cir. 1999) ( If the plaintiff must succeed on a question of patent law in order to prevail, then jurisdiction is founded on 1338, and if not, not. ) Here, each of the claims that Plaintiff has stated arises from California law. Defendants do not contend otherwise. The validity of Pfizer s patents is not an element of the Plaintiffs claim here. Indeed, it is tangentially relevant, if at all, to a defense. This slender reed is insufficient to establish federal subject matter jurisdiction. C. Defendants Argument That Plaintiffs Causes of Action are Created by Federal Patent Law or That Federal Patent Law is a Necessary Element of Plaintiffs Claim Has Been Rejected By This Court And Other Courts 1. Defendants Removal is Based Upon Groundless Speculation 15

19 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 16 of 22 PageID: 1180 At paragraph 16 of the Petition for Removal, Defendants claim that Plaintiffs contend the 995 Lipitor patent is invalid and that Pfizer settled with Ranbaxy based on the probability that the 995 patent would be invalidated in the absence of such a settlement, citing paragraph 13 and in the Complaint. This assertion is clearly wrong. Paragraphs 13, of the Complaint make no such allegation. As alleged in the Complaint in paragraph 91: In 2008, Pfizer and Ranbaxy entered into an Agreement wherein they agreed to divide markets, fix prices on Lipitor and the Lipitor generic, keeping the generic off the market and artificially extending the patent beyond its time. There is no allegation that the 995 Lipitor patent is invalid. A further example of Defendants overreaching is its reliance on the case cited in paragraph 16 of the Petition for Removal: In re Cipro Cases I and II, 134 Cal.Rptr. 3, 165 (Cal. Ct. App. 2011). While Defendants recognize that the California Supreme Court granted review on February 15, 2012, petition for review granted, In re Cipro Cases I and II, No , Defendants improperly rely on the Court of Appeal holding which is no longer good law in California. This creates the false illusion that a settlement of a lawsuit to enforce a patent does not violate the California Act unless the patent was procured by fraud or the enforcement suit was objectively baseless. Defendants citation to this ruling is improper. The California Supreme Court granted review in S According to the website for the Supreme Court, the issue described is: Petition to review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issue: May a suit under the Cartwright Antitrust Act (bus. & Prof. Code? et seq) be brought to challenge reverse exclusionary payments made by pharmaceutical manufacturers to settle patent litigation with generic drug producers and prolong the life of the patents in question? c_id= &doc_no=s

20 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 17 of 22 PageID: 1181 At paragraph 17 of the Petition, Defendants speculation continues with its false characterization of paragraph 114 of the Complaint regarding the Walker Process case. The absurd claim is that by citing the Walker case, Plaintiffs have invoked the resolution of a substantial question of federal patent law. In the same paragraph, Defendants again cite the Court of Appeal decision in the Cipro cases, but not acknowledging that the petition for review was granted by the California Supreme Court. Finally, at paragraph 18 of the Petition for Removal, Defendants cherry-pick words and phrases from the complaint in the attempt to show that this case requires resolution of a substantial question of federal patent law, all based upon groundless speculation. In Conroy v. Fresh Del Monte Produce, Inc., 325 F.Supp.2d 1049, 1055 (N.D. Cal. 2004), Judge Armstrong granted remand, holding: Plaintiff did not plead any federal claim on the face of her Complaint. She has not requested relief under patent law. Rather, she brought California state and common law causes of action California Cartwright Act; California Business and Professions Code et seq.; the California Unfair Competition Law, Business and Professions Code et seq.; common law prohibitions against monopolies, and unjust enrichment. Accordingly, under the first prong of the Christianson test, this Court does not have jurisdiction. In a similar case, Judge Illston granted remand in Patterson v. John Preus, Invision Diagnostics, LLC 2009 WL (N.D. Cal. 2009). Finally, the Cipro cases, cited by Defendants in the RP, were remanded for the same reasons this case should be remanded. Altman v. Bayer Corporation, 125 F.Supp.2d 666 (S.D. N. Y. 2000). In granting remand, the Court held that resolution of state law claims did not necessarily depend on a substantial question of federal patent law, as required to come within federal court s jurisdiction, as follows: Here, the plaintiff has alleged that defendants acted with an impure heart when Bayer brought litigation against Barr for patent infringement; entered the Stipulation to extend the 30-month waiting period; signed the Agreement in which Barr agreed not to market its generic Cipro in 17

21 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 18 of 22 PageID: 1182 exchange for $24.5 million; and entered into a consent judgment acknowledging the validity of Bayer s patent. Following Christianson, plaintiff s alternative theories make it unnecessary to resolve any substantial question of patent law for plaintiff to prevail. The motion to remand is therefore granted. (Id. at 675) For the same reasons given in Altman, Plaintiffs theories in this case make it unnecessary to resolve any substantial question of patent law for plaintiffs to prevail. Here, remand should be granted. 2. If There Is Any Patent Law Issue in This Case, it Will Arise as Part of a Defense, and Not as an Element of the Plaintiffs Antitrust Claims Under the first part of the Christianson test, the well-pleaded complaint rule, whether a claim arises under patent law must be determined from what necessarily appears in the plaintiff s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant many interpose. Id. (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S. Ct. 724, 58 L.Ed (1914)). Similarly, a case raising a federal defense does not arise under federal law pursuant to 28 U.S.C. 1338, even if the defense is anticipated in the complaint, and even if both parties admit that the defense is the only question truly at issue in the case. Franchise Tax Bd. Of Cal. V. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 14, 103, S.Ct. 2841, 2848, 77 L.Ed2d 420 (1983). Here, the Defendants market allocation agreement is deemed wrongful precisely because it has a strong propensity to cause the type of injury that plaintiff alleges - supra-competitive pricing for Lipitor. The burden is thus on Defendants to come forward with evidence that their market allocation agreement was not such a but-for cause. The impropriety of removal here also follows from the settled principle that suits to enforce contracts arise out of state law, even where the subject matter of the contract is a patent. Novamedix, Ltd. v. NDM Acquisition Corp., 166 F.3d 1177, (Fed. Cir. 1999) (suit for enforcement of settlement and consent judgment arose under patent laws 18

22 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 19 of 22 PageID: 1183 only because consent judgment contained clause by which district court retained jurisdiction over patent case for purposes of enforcement); Boggild v. Kenner Products, 853 F.2d 465, 468 (6th Cir. 1988); Kysor Industrial Corp. v. Pet, Inc., 459 F.2d 1010, 1012 (6th Cir. 1972) (state law action to enforce agreement to settle patent dispute was not removable from state court, simply because the defendant contended that the patents that were the subject matter of the agreement were invalid), cert. denied, 409 U.S. 980 (1972); Simpson v. Peterson Tractor Co., Nos. C MJJ, C MJJ WL (N.D.Cal. Sept. 5, 2000) (claims under state contract and tort laws were not removable to federal court, even if the subject of the claims was a patent). If a dispute between the parties to an agreement that resolved a patent dispute does not arise under federal patent law, a state law antitrust claim that challenges the anti-competitive effects of such an agreement surely does not either. D. The Petition for Removal is Procedurally Defective on its Face and Should Be Remanded The DRP is procedurally defective on its face because each of the Defendants did not consent to the removal ab initio. In the RP, Defendants admit that all defendants who have been properly joined and served must join in or consent to the removal of the action. (RP at p. 2.) Counsel for Pfizer who signed the removal petition states that Defendants Ranbaxy, Inc. and Ranbaxy Laboratories Limited were not served and therefore their consent is not required (RP at 2). Counsel for Pfizer s declaration in support of the Petition for Remand states at paragraph 9: Defendants Pfizer Ireland Pharmaceuticals, Pfizer Manufacturing Ireland (formerly known, among other things, as Warner-Lambert Export, Ltd.), Daiichi Sankyo Company, Limited (incorrectly named in the Complaint as Daiichi Sankyo, Ltd.), Ranbaxy Laboratories Limited, and Ranbaxy, Inc. have not been served in this action. The Proofs of Service of Summons for two of those Defendants were filed in the Sonoma County Superior Court on February 22, See Exhibits A and B attached to 19

23 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 20 of 22 PageID: 1184 the Declaration of James M. Dombroski. In addition, the docket sheet for the Sonoma County Superior Court (Exhibit C) clearly shows that each of the Defendant Ranbaxy Laboratories Limited and Defendant Ranbaxy, Inc. were properly served. The statements made in the RP and the supporting declaration of Pfizer s counsel are plainly false and do not conform to the procedural requirements for removal. The failure to join all proper defendants in a removal petition may otherwise render the removal petition procedurally defective. Emrich v. Touch Ross & Co., 846 F.2d 1190, 1193, note 1 (9 th Cir. 1988). The Court of Appeals for the Third Circuit has construed Section 1446 to require that all defendants must join in the removal petition. Opinion by District Judge Peter G. Sheridan, United States District Court, New Jersey, in Evanston Insurance Co. v. Cozen O Conner, P.C., Civil Action No (PGS) (2007), a copy of which is attached as Exhibit F. Accordingly, Judge Sheridan granted remand stating... remand to state court is required if any doubt exists over whether removal was proper. [O]ne defendant s attempt to speak on behalf of another defendant will not suffice. Landman v. Borough of Bristol,896 F.Supp.406, 408 (E.D. Pa. 1995). Defendants Petition for Removal is also procedurally defective because Defendants counsel signed the Petition for Defendants who he did not represent, which is expressly prohibited. Further, Defendants counsel did not state that Defendant Pfizer, Inc. consented to the removal. For these reasons, remand should be granted. VI. CONCLUSION For the reasons stated above, there is no federal subject matter jurisdiction over this action, and it should be remanded to the California Superior Court, County of Sonoma. DATED: August 13, 2012 /s/ Joseph M. Alioto 20

24 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 21 of 22 PageID: 1185 Joseph M. Alioto James M. Dombroski Alioto Law Firm 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) Counsel for RP Healthcare Inc., et al. (3:12- cv-1059-jsw) 21

25 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 22 of 22 PageID: 1186 Joseph M. Alioto, Sr. Angelina Alioto-Grace Theresa Driscoll Moore Tom Pier Jamie L. Miller ALIOTO LAW FIRM 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) Russell F. Brasso FOREMAN AND BRASSO 930 Montgomery Street, Suite 600 San Francisco, CA Telephone: (415) Facsimile: (415) Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) Jeffery K. Perkins LAW OFFICES OF JEFFERY K. PERKINS 1550-G Tiburon Boulevard, #344 Tiburon, CA Telephone: (415) Facsimile: (415) Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) James M. Dombroski LAW OFFICES OF JAMES M. DOMBROSKI P.O. Box Petaluma, CA Telephone: (707) Facsimile: (707) Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) John Haslet Boone LAW OFFICES OF JOHN H. BOONE 4319 Sequoia Drive Oakley, CA Telephone: (415) Facsimile: (415) Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) 22

26 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 1 of 3 PageID: 1187 Joseph M. Alioto, SBN Theresa D. Moore, SBN Jamie L. Miller, SBN ALIOTO LAW FIRM 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) LAW OFFICE OF JAMES M. DOMBROSKI James M. Dombroski, SBN P.O. Box Petaluma, CA Telephone: (707) Facsimile: (707) jdomski@aol.com Attorneys for Plaintiffs RP Healthcare, et al. [ADDITIONAL COUNSEL APPEAR ON LAST PAGE] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY IN RE: LIPITOR ANTITRUST LITIGATION This Document Relates To: RP Healthcare, Inc., et al. v. Pfizer, Inc., et al., No. 3:12-cv-1059-JSW MDL NO Master Docket No.: 3:12-cv-2389(PGS/DEA) DECLARATION OF JAMES M. DOMBROSKI IN SUPPORT OF MOTION TO REMAND Honorable Peter G. Sheridan (Document Filed Electronically) DECLARATION OF JAMES M. DOMBROSKI I, James M. Dombroski, declare as follows: 1

27 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 2 of 3 PageID: I am one of the attorneys representing Plaintiffs in the above-entitled action and submit this declaration in support of Plaintiffs Motion for Remand. 2. Attached hereto as Exhibit A is a true and correct copy of the Proof of Service of Summons regarding service of the Summons and Complaint, etc. on Defendant Ranbaxy Laboratories Limited, filed in the Superior Court of California, County of Sonoma, on February 22, Attached hereto as Exhibit B is a true and correct copy of the Proof of Service of Summons regarding service of the Summons and Complaint, etc. on Defendant Ranbaxy, Inc. filed in the Superior Court of California, County of Sonoma, on February 22, Attached hereto as Exhibit C is a true and correct copy of the Docket Sheet from the Superior Court of California, County of Sonoma, for civil proceedings as of March 12, Attached hereto as Exhibit D is a true and correct copy of the Complaint filed January 31, 2012, in the Superior Court of California, County of Sonoma. 6. Attached hereto as Exhibit E is a true and correct copy of the Order Granting Motion for Stay and Denying Motion for Remand Without Prejudice, filed in this case on June 6, Attached hereto as Exhibit F is a true and correct copy of the Opinion by District Judge Peter G. Sheridan for the U.S. District Court, New Jersey, in Evanston Insurance Co. v. Cozen O Connor, PC, Dist., Civil No (PGS). I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed this 13th day of August, 2012, in Petaluma, California. /s/ James M. Dombroski James M. Dombroski 2

28 Case 3:12-cv PGS-DEA Document Filed 08/13/12 Page 3 of 3 PageID: 1189 Joseph M. Alioto, Sr. Angelina Alioto-Grace Theresa Driscoll Moore Tom Pier Jamie L. Miller ALIOTO LAW FIRM 225 Bush Street, 16 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) jmalioto@aliotolaw.com tmoore@aliotolaw.com jmiller@aliotolaw.com tpier@aliotolaw.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) Russell F. Brasso FOREMAN AND BRASSO 930 Montgomery Street, Suite 600 San Francisco, CA Telephone: (415) Facsimile: (415) brasso@foremanandbrasso.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) Jeffery K. Perkins LAW OFFICES OF JEFFERY K. PERKINS 1550-G Tiburon Boulevard, #344 Tiburon, CA Telephone: (415) Facsimile: (415) jefferykperkins@aol.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) James M. Dombroski LAW OFFICES OF JAMES M. DOMBROSKI P.O. Box Petaluma, CA Telephone: (707) Facsimile: (707) jdomski@aol.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) John Haslet Boone LAW OFFICES OF JOHN H. BOONE 4319 Sequoia Drive Oakley, CA Telephone: (415) Facsimile: (415) deacon38@gmail.com Counsel for RP Healthcare Inc., et al. (12- cv-1059-jsw) 3

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