Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 1 of 16 PageID: 4514 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Transcription

1 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 1 of 16 PageID: 4514 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY DEBORAH FULLER & DAVID FULLER, as Administrators Ad Prosequendum for the Estate of SARAH A. FULLER, Deceased, and DEBORAH FULLER & DAVID FULLER, Individually v. Plaintiffs, CIVIL ACTION 2:17-cv ES-SCM INSYS THERAPEUTICS, INC., JOHN KAPOOR, MICHAEL BABICH, ALEC BURLAKOFF, JOHN DOE #1-10 (fictitious), ABC CORPORATION #1-10 (fictitious) Motion Date: September 4, 2018 Defendants. DEFENDANT JOHN KAPOOR S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Kurt M. Mullen kmullen@nixonpeabody.com Nixon Peabody LLP 100 Summer Street Boston, MA (617) Steven M. Richman srichman@clarkhill.com CLARK HILL PLC Suite Carnegie Center Princeton, NJ (609) Attorneys for Defendant John Kapoor

2 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 2 of 16 PageID: 4515 Table of Contents Page I. INTRODUCTION... 1 II. STATEMENT OF FACTS... 2 III. ARGUMENT Dr. Kapoor is not subject to general jurisdiction in New Jersey Dr. Kapoor is not subject to specific jurisdiction in New Jersey... 7 IV. CONCLUSION i

3 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 3 of 16 PageID: 4516 Federal Cases TABLE OF AUTHORITIES Page(s) BNSF Ry. Co. v. Tyrell, 581 U.S., 137 S. Ct (2017)...6 Bristol-Myers Squibb Co. v. Superior Court of Cal., 582 U.S., 137 S. Ct (2017)...6 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)...7, 9 Daimler AG v. Bauman, 571 U.S. 117 (2013)...6 Educ. Testing Serv. v. Katzman, 631 F. Supp. 550 (D.N.J. 1986)...10 General Accident Ins. Co. of Am. v. Fidelity & Deposit Co. of Maryland, 598 F. Supp (E.D. Pa. 1984)...2 General Electric Co. v. Deutz AG, 270 F.3d 144 (3d Cir. 2001)...4 J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011)...10, 11 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984)...5, 10 Mesalic v. Fiberfloat Corp., 897 F.2d 696 (3d Cir. 1990)...4 Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir. 2004)...4, 5 MoneyGram Payment Sys., Inc. v. Consorcio Oriental, S.A., 65 F. App x 844 (3d Cir. 2003)...2, 5 Nelligan v. Zaio Corp., No. 10-CV-1408, 2011 WL (D.N.J. Mar. 21, 2011)...4, 5 Nicholas v. Saul Stone & Co., 224 F.3d 179 (3d Cir. 2000)...5, 10 ii

4 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 4 of 16 PageID: 4517 Nicholas v. Saul Stone & Co. LLC, No , 1998 WL (D.N.J. June 30, 1998), aff d, 224 F.3d 179 (3d Cir. 2000)...2 Ragner Tech. Corp. v. Berardi, 287 F.Supp.3d 541 (D.N.J. 2018)...10 Seltzer v. I.C. Optics, Ltd., 339 F. Supp. 2d 601 (D.N.J. 2004)...10 Shaffer v. Heitner, 433 U.S. 186 (1977)...7 State Cases Baanyan Software Servs. Inc. v. Kuncha, 433 N.J. Super. 466 (App. Div. 2013)...6, 8, 9 Charles Gendler & Co., Inc. v. Telecom Equip. Corp., 102 N.J. 460 (1986)...4, 7 Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 450 N.J. Super. 590 (App. Div. 2017)...6 Mische v. Bracey s Supermarket, 420 N.J. Super. 487 (App. Div. 2011)...6 Treasury, Div. of Inv. ex rel. McCormac v. Qwest Communications Int l, 387 N.J. Super. 487 (App. Div. 2006)...9 Waste Management, Inc. v. Admiral Insurance Co., 138 N.J. 106 (1994)...7, 8, 9 Wilson v. Paradise Vill. Beach Resort & Spa, 395 N.J. Super. 520 (App. Div. 2007)...5 Rules Fed. R. Civ. P. 4(k)(1)(A)...4 Fed. R. Civ. P Fed. R. Civ. P. 11(b)...2 Fed. R. Civ. P. 12(b)(2)...2 N.J. CT. R. 4: 4-4(b)...4 iii

5 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 5 of 16 PageID: 4518 I. INTRODUCTION This is a New Jersey case, brought by New Jersey residents in a New Jersey court alleging violations of New Jersey law. Plaintiffs have sued, among other parties, Insys Therapeutics, Inc. ( Insys ), a pharmaceutical company that does business in New Jersey and which does not dispute that it is subject to this Court s jurisdiction. After John N. Kapoor ( Dr. Kapoor ) was indicted for healthcare fraud in a federal proceeding brought by the United States Department of Justice, Plaintiffs sought to take advantage of that development by amending their complaint to add him as a defendant. The claims against Dr. Kapoor must be dismissed, however, because Plaintiffs cannot establish that Dr. Kapoor is subject to personal jurisdiction in New Jersey. Plaintiffs do not allege that Dr. Kapoor is domiciled in New Jersey, is a New Jersey citizen, or has the kind of continuous and systematic contact with New Jersey that could subject him to general jurisdiction here. Nor can they carry their burden of showing that Dr. Kapoor is subject to specific jurisdiction in this state. Plaintiffs claims against Insys, Dr. Kapoor, and the other individual defendants stem from an alleged scheme to market and promote Subsys, a prescription drug manufactured by Insys, for off-label use. Yet insofar as Plaintiffs claims against Dr. Kapoor are premised on alleged and vague actions he supposedly took in furtherance of the offlabel marketing and promotion of Subsys (such as directing day-to-day operations), those alleged acts by Dr. Kapoor did not take place in New Jersey. Rather, they necessarily would have occurred in Arizona, where Insys is headquartered. Plaintiffs do not allege that Dr. Kapoor personally directed any specified fraudulent act toward anyone in New Jersey. Rather, the First Amended Complaint s bare allegations regarding Dr. Kapoor reference New Jersey only as a state included in an alleged national scheme. Thus, Plaintiffs theory of jurisdiction appears to be that, because Dr. Kapoor was an executive at Insys, he must be amenable to jurisdiction anywhere Insys conducts business. This theory stands 1

6 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 6 of 16 PageID: 4519 personal jurisdiction law on its head; it is axiomatic that personal jurisdiction does not exist simply because [individual defendants] are agents or employees of organizations which presumably are amenable to jurisdiction. See MoneyGram Payment Sys., Inc. v. Consorcio Oriental, S.A., 65 F. App x 844, 850 (3d Cir. 2003). Moreover, [a]s a general rule, an individual whose contacts with the forum state are in his corporate capacity does not thereby become subject to jurisdiction in his individual capacity. Nicholas v. Saul Stone & Co. LLC, No , 1998 WL , at *10 (D.N.J. June 30, 1998), aff d, 224 F.3d 179 (3d Cir. 2000). In short, Plaintiffs must show a specific connection between Dr. Kapoor and the State beyond his employment at Insys. They have not even attempted to do so. This Court lacks personal jurisdiction over Dr. Kapoor and the claims against him must be dismissed pursuant to Fed. R. Civ. P. 12(b)(2). II. STATEMENT OF FACTS 1 1 Dr. Kapoor disputes many of the allegations set forth in the First Amended Complaint ( FAC ). The information contained in this section and elsewhere in this motion does not constitute an admission to any fact alleged by Plaintiffs, nor does Dr. Kapoor waive any legal defense, right or privilege through the filing of this memorandum. Dr. Kapoor also objects to the FAC insofar as it purports to incorporate by reference, in wholesale and indiscriminate fashion, the allegations set forth in pleadings from other cases. See FAC 16 (purporting to incorporate all allegations in the First Superseding Indictment in United States v. Babich et al.); 19 (purporting to incorporate all allegations in the Amended Complaint in Porrino v. Insys Therapeutics, Inc. et al.). This violates the rules of pleading set forth in Federal Rule of Civil Procedure 10, which does not permit the wholesale, inspecific adoption of other pleadings by reference, and further requires that each set of factual allegations be set forth in separate paragraphs. Cf. Gen. Acc. Ins. Co. of Am. v. Fid. & Deposit Co. of Maryland, 598 F. Supp. 1223, 1229 (E.D. Pa. 1984) ( Pleadings... are not facts or even evidence of the existence of facts but are merely one party s allegations of fact.... For all or part of a prior pleading to be incorporated in a later pleading, the later pleading must specifically identify which portions of the prior pleading are adopted therein. ). Plaintiffs purported adoption of the allegations from pleadings in other cases also violates Rule 11(b) to the extent Plaintiffs counsel did not personally draft each of those allegations. 2

7 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 7 of 16 PageID: 4520 Insys is a pharmaceutical company with its principal place of business in Chandler, Arizona. FAC 9. Dr. Kapoor founded Insys and has, at various times in the past, served as its Chairman of the Board of Directors, President and Chief Executive Officer, and principal shareholder. FAC 10. As Plaintiffs allege, Dr. Kapoor resides in Phoenix, Arizona. Id. On March 23, 2017, Plaintiffs filed this action in Middlesex County Superior Court against Insys and other defendants who have since been dismissed. Plaintiffs did not name Dr. Kapoor as a defendant. Following Plaintiffs dismissal with prejudice of the New Jersey resident defendants, Insys removed this case to this Court on October 4, 2017, invoking the Court s diversity jurisdiction. See ECF No Plaintiffs moved to remand the case shortly thereafter. See ECF No. 3. On February 7, 2018, the day after the Court adopted the Magistrate Judge s report recommending that Plaintiffs motion to remand this action be denied, Plaintiffs moved to amend their Complaint to add Dr. Kapoor, Michael Babich, Alec Burlakoff, and a New Jersey resident (a former Insys salesperson) as defendants. See ECF Nos. 27 (Order adopting Magistrate Judge s Report and Recommendations) and 28 (Plaintiffs Motion to Amend Complaint). The Court (Mannion, J.) granted the portion of Plaintiffs motion seeking to add Dr. Kapoor, Babich, and Burlakoff as defendants on June 5, 2018, but denied Plaintiffs request to add the New Jersey resident. See ECF No. 63. Plaintiffs filed the First Amended Complaint on June 12, 2018 (ECF No. 65) and served Dr. Kapoor soon thereafter. 2 While this case was still pending in state court, Plaintiff sought to depose Dr. Kapoor. On September 27, 2017, prior to the October 3, 2017, date listed in the deposition notice, Plaintiffs moved to compel Dr. Kapoor s deposition. In turn, Dr. Kapoor moved for a protective order quashing the notice. Insys removed this case on October 4, On October 19, 2017, the state court denied Plaintiffs motion to compel and Dr. Kapoor s motion for a protective order as moot. 3

8 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 8 of 16 PageID: 4521 The FAC purports to assert claims against Dr. Kapoor for negligence, common law fraud, and negligent misrepresentation. FAC , Plaintiffs allege that Dr. Kapoor was personally responsible for directing the day to day scheme carried out by Insys to market Subsys off-label, resulting in their claims. FAC 11. III. ARGUMENT Plaintiffs attempt to bring suit against Dr. Kapoor in the State of New Jersey a state in which he does not reside and with which he has had no direct or meaningful contact is improper and does not comport with due process. This Court lacks personal jurisdiction over Dr. Kapoor, and Plaintiffs claims against him must be dismissed. Federal courts exercise personal jurisdiction according to the law of the state in which they sit. See Nelligan v. Zaio Corp., No. 10-CV-1408, 2011 WL , at *2 (D.N.J. Mar. 21, 2011); see also Fed. R. Civ. P. 4(k)(1)(A). New Jersey s long-arm rule allows New Jersey courts to exercise jurisdiction over non-resident defendants to the same extent allowed by federal constitutional due process. 3 Charles Gendler & Co., Inc. v. Telecom Equip. Corp., 102 N.J. 460, 469 (1986); see also N.J. CT. R. 4: 4-4(b). Once challenged, the plaintiff bears the burden of establishing that an out-of-state defendant is subject to personal jurisdiction. General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001). To establish a prima facie case for personal jurisdiction over Dr. Kapoor, Plaintiffs must establish[ ] with reasonable particularity sufficient contacts between the defendant and the forum state. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). 3 Because New Jersey courts analyze personal jurisdiction to the extent allowed by federal constitutional due process, courts look to federal law for interpretation of the limits on in personal jurisdiction. Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 n.5 (3d Cir. 1990) (citing Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971)). 4

9 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 9 of 16 PageID: 4522 When a corporation and one of its officers are both named as defendants, each defendant s contacts with the forum state must be assessed individually. Nicholas v. Saul Stone & Co., 224 F.3d 179, 184 (3d Cir. 2000) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13 (1984)). Personal jurisdiction over individual defendants does not exist simply because they are agents or employees of organizations which presumably are amenable to jurisdiction in a particular forum. MoneyGram Payment Sys., 65 F. App x at 850 (quoting Nicholas, 224 F.3d at 184)); see also Nelligan, 2011 WL , at *4 (collecting cases). Moreover, [a]s a general rule, an individual whose contacts with the forum state are in his corporate capacity does not thereby become subject to jurisdiction in his individual capacity. Nelligan, 2011 WL , at *3. Plaintiffs attempt to assert jurisdiction over Dr. Kapoor in New Jersey can be accurately summarized by one conclusory and factually incorrect sentence from the FAC, in which Plaintiffs improperly attribute activities undertaken by Insys to Dr. Kapoor: [a]ll actions herein occurred in New Jersey and the corporate defendants routinely conduct business in Middlesex County, New Jersey giving rise to proper venue. FAC at 1. Putting aside the fact that many (and perhaps most) of the events described in the FAC occurred outside of New Jersey, this statement is identical to the jurisdictional statement contained in Plaintiffs original complaint, which did not purport to assert jurisdiction over Dr. Kapoor. Compare FAC at 1 with Compl. at 1. But jurisdiction over Dr. Kapoor does not depend on the Court s ability to exercise jurisdiction over Insys. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13 (1984). Considered independent of Insys, the factual allegations set forth in the FAC fall well short of establishing this Court s jurisdiction over Dr. Kapoor as an individual. 1. Dr. Kapoor is not subject to general jurisdiction in New Jersey. Personal jurisdiction over a non-resident defendant may be asserted under general or specific theories of jurisdiction. Miller Yacht Sales, 384 F.3d at 100 (citing Helicopteros 5

10 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 10 of 16 PageID: 4523 Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n.9 (1984)). To establish general jurisdiction, Plaintiffs bear the burden of establishing that Dr. Kapoor has contacts with New Jersey that are continuous and substantial. Wilson v. Paradise Vill. Beach Resort & Spa, 395 N.J. Super. 520, 528 (App. Div. 2007). Plaintiffs have not satisfied that burden and, indeed, cannot do so. Recently, in Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 450 N.J. Super. 590, 595, 599 (App. Div. 2017), the Appellate Division of the Superior Courts of New Jersey noted that the standards for establishing general jurisdiction continue to tighten in light of recent United States Supreme Court decisions like Daimler AG v. Bauman, 571 U.S. 117 (2013), BNSF Ry. Co. v. Tyrell, 581 U.S., 137 S. Ct (2017), and Bristol-Myers Squibb Co. v. Superior Court of Cal., 582 U.S., 137 S. Ct (2017). The court emphasized that the standard for establishing general jurisdiction is fairly high, and requires that the defendant s contacts be of the sort that approximate physical presence. Id.; see also Mische v. Bracey s Supermarket, 420 N.J. Super. 487, 491 (App. Div. 2011) ( This standard for establishing general jurisdiction is difficult to meet, requiring extensive contacts between a defendant and a forum ). Plaintiffs do not allege (nor can they) that Dr. Kapoor had any continuous and substantial contacts with New Jersey. For example, Plaintiffs do not allege that Dr. Kapoor resides in New Jersey, or that he travelled to this state to conduct business on a regular basis. See, e.g., Baanyan Software Servs. Inc. v. Kuncha, 433 N.J. Super. 466, 476 (App. Div. 2013) ( The extensive contacts required for establishing general jurisdiction are not present here. It is undisputed that defendant never resided nor did business in New Jersey. ). Likewise, the FAC does not contain any other allegations that could even remotely establish continuous and substantial contacts with 6

11 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 11 of 16 PageID: 4524 New Jersey by Kapoor. Thus, there is no basis to conclude that Dr. Kapoor is subject to general jurisdiction in New Jersey. 2. Dr. Kapoor is not subject to specific jurisdiction in New Jersey. A court has specific jurisdiction over and out-of-state defendant if a cause of action arises directly out of a defendant s contacts with the forum state.... Waste Mgmt., Inc. v. Admiral ns. Co., 138 N.J. 106, 119 (1994). Specific jurisdiction depends upon the relationship among the defendant, the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186, 204 (1977). Minimum contacts are the threshold requirements for specific personal jurisdiction. Waste Mgmt., 138 N.J. at 119 (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The defendant s contacts with the forum state must be such that [he] should reasonably anticipate being haled into court there. Charles Gendler, 102 N.J. at 470 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). [I]t is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefit and protection of its laws. Waste Mgmt., 138 N.J. at 119 (citing Hanson, 357 U.S. at 253 (1958)). The purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts... or the unilateral activity of another party or a third person. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (internal citations and quotations omitted). Instead, the defendant s contacts must result from actions by the defendant himself that create a substantial connection with the forum state. Id. at 476. The quality and nature of the defendant s activities must be examined on a case-bycase basis to determine if the minimum-contacts standard is satisfied. Charles Gendler, 102 N.J. at 470 (citing International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). Once a court determines that the defendant has minimum contacts with the forum, the court must consider 7

12 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 12 of 16 PageID: 4525 whether exercising jurisdiction over the defendant would be consistent with considerations of fair play and substantial justice. Waste Mgmt., 138 N.J. at 121. Plaintiffs fail to allege that Dr. Kapoor purposefully directed any activities toward New Jersey, or that any specific act or omission by Dr. Kapoor resulted in Plaintiff s injuries. In fact, the FAC scarcely contains any specific allegations regarding Dr. Kapoor s activities. Instead, Plaintiffs claim that Dr. Kapoor was copied on s, received reports, and participated in conference calls regarding company-wide programs, and they make conclusory assertions devoid of any factual specificity that Dr. Kapoor directed the day to day scheme undertaken by Insys. FAC 11, 29. In other instances, Plaintiffs broadly allege that Insys, Dr. Kapoor, and other former Insys employees developed certain programs or instructed employees to engage in certain tactics. See, e.g., FAC 36, 38-39, Plaintiffs assert that Dr. Kapoor sent s establishing an Insys Reimbursement Center ( IRC ) working group, and requesting reports from and meetings with IRC personnel. FAC 45, Ex. D. To the extent any of these alleged acts resulted in any contact with New Jersey, such contacts were fortuitous and attenuated, not purposeful or intentional. New Jersey courts have held that similar attenuated contacts like those alleged here are insufficient to establish specific personal jurisdiction. In Baanyan Software Services v Kuncha, supra, for example, the plaintiff (a New Jersey corporation) brought claims against the defendant (a non-new Jersey resident) for breach of contract. 433 N.J. Super at 477. The defendant never lived in or traveled to New Jersey, but directed various electronic and telephone communications to New Jersey both while negotiating her employment contract and periodically during the course of her employment. Id. at 471. The court determined that telephonic and electronic communications with individuals and entities located in New Jersey alone, are insufficient minimum contacts to establish personal 8

13 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 13 of 16 PageID: 4526 jurisdiction over a defendant. Id. at 477 (citing Pfundstein v. Omnicom Grp. Inc., 285 N.J. Super. 245, 252 (App. Div. 1995)). Similarly, the fact that the defendant had submitted timesheets to the plaintiff in New Jersey was not enough to establish personal jurisdiction. Id. The electronic communications described by Plaintiffs in support of their claim of personal jurisdiction over Dr. Kapoor are even less meaningful and more attenuated than those described in Baanyan, as they were not specifically directed to persons in New Jersey, nor did they specifically pertain to New Jersey business. At most, Plaintiffs allege that Dr. Kapoor received a handful of s from someone in New Jersey. See FAC Yet Plaintiffs do not allege that Dr. Kapoor ever responded to these s, or that he ever sent any other electronic communications to anyone in New Jersey. These infrequent, one-sided communications cannot possibly provide a basis for haling Dr. Kapoor into a New Jersey court. The other acts alleged by Plaintiffs in support of their jurisdictional claim describe broad, company-wide initiatives not acts that create a substantial connection between Dr. Kapoor and New Jersey. See Burger King Corp., 471 U.S. at (defendant s contacts must result from actions by the defendant himself that create a substantial connection with the forum state. ). New Jersey courts may exercise specific jurisdiction over a defendant only if the defendant committed some intentional act calculated to create an actionable event within the state. Waste Mgmt., 138 N.J. at 389. The intent to cause an effect in New Jersey is an essential element of any claim or specific personal jurisdiction, particularly where a corporate officer is sued in his individual capacity. For example, State Dep t of Treasury, Div. of Inv. Ex rel. McCormac v. Qwest Comms. Int l, Inc., plaintiffs sued the defendant in connection with a series of allegedly fraudulent misrepresentations made in order to induce an investment. 387 N.J. Super. 487, (App. Div. 2006). The court determined that the defendant, although an out-of-state entity, was subject to 9

14 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 14 of 16 PageID: 4527 specific personal jurisdiction in New Jersey in light of the fact that it intentionally directed allegedly fraudulent communications to the plaintiff in New Jersey in order to induce the investment. Id. at 499. Unlike in Qwest, Plaintiffs here fall woefully short of establishing that Dr. Kapoor committed an intentional act calculated to create an actionable event in New Jersey. At best, they merely claim that Dr. Kapoor (likely nearly every executive of large national corporations) had some high-level involvement in various companywide initiatives that, as it turned out, may have resulted in contact with New Jersey (not to mention dozens of other states). They do not claim that Dr. Kapoor himself intentionally directed anything or anyone to New Jersey through any of these programs. As a matter of law, these types of allegations are not sufficient to establish personal jurisdiction in this court. See Seltzer v. I.C. Optics, Ltd., 339 F. Supp. 2d 601, 612 (D.N.J. 2004) ( national advertisements not directed at a particular forum... have not been sufficient to establish jurisdiction ); cf. generally J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) (plurality) (sales and marketing efforts directed generally at the United States, rather than New Jersey specifically, held insufficient to establish personal jurisdiction in New Jersey). Lacking any legitimate evidence or belief that Dr. Kapoor engaged in an intentional act aimed at New Jersey, Plaintiffs allegations focus on Insys, Dr. Kapoor s former employer. It is well established, however, that jurisdiction over a corporate officer does not automatically follow from jurisdiction over his employer. See Keeton, 465 U.S. at 770; Nicholas, 224 F.3d at 184; Educ. Testing Serv. v. Katzman, 631 F. Supp. 550, 559 (D.N.J. 1986) ( actions taken by an individual in his corporate capacity outside the forum state are not necessarily enough to establish jurisdiction over the individual. ). This principle was recently reiterated in Ragner Tech. Corp. v. Berardi, which explained that [a]ctions taken in the forum by the corporate entity should not be imputed 10

15 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 15 of 16 PageID: 4528 to an individual defendant for purposes of personal jurisdiction unless the plaintiff establishes that the individual defendant himself took the specific action. 287 F.Supp.3d 541, 553 (D.N.J. 2018) (quoting Norben Import Corp. v. Metro. Plant & Flower Corp., No , 2005 WL , at *5 (D.N.J. July 15, 2005)). Any rule to the contrary would effectively make all employees and executives of national corporations subject to jurisdiction in all fifty states merely as a result of their employment status. Such a result would vitiate the case-by-case jurisdictional analysis required by constitutional due process. At no time did [Dr. Kapoor] engage in any activities in New Jersey that reveal an intent to invoke or benefit from the protection of its laws. New Jersey is without power to adjudge the rights and liabilities of [Dr. Kapoor], and its exercise of jurisdiction would violate due process. Nicastro, 564 U.S. at 887. Because Plaintiffs have failed to establish that Dr. Kapoor separate and apart from Insys took specific action in New Jersey or otherwise directed some act at New Jersey, Dr. Kapoor is not subject to personal jurisdiction in this court, and Plaintiffs claims against him must be dismissed. IV. CONCLUSION For all of the reasons explained herein, the claims against Dr. Kapoor in the FAC must be dismissed because Plaintiffs cannot satisfy their burden of establishing personal jurisdiction in New Jersey. 11

16 Case 2:17-cv ES-SCM Document 98-1 Filed 07/30/18 Page 16 of 16 PageID: 4529 Respectfully submitted, Nixon Peabody LLP By: /s/ Kurt M. Mullen Kurt M. Mullen, Esq. (NJ ID ) 100 Summer Street Boston, MA (Phone) Attorneys for Defendant John N. Kapoor Clark Hill PLC By: /s/ Steven M. Richman Steven M. Richman, Esq. (NJ ID ) Suite Carnegie Center Princeton, NJ (Phone) Attorneys for Defendant John N. Kapoor DATED: July 30,