Pfizer Inc., et al. v. Mylan Inc., et al., C.A. No. 15-26 – SLR-SRF, April 4, 2016.

Fallon, M. J. Report and recommendation recommending that defendants’ motion to dismiss for lack of personal jurisdiction and failure to state a claim be denied in part and granted in part.

The disputed technology in this ANDA case is tigecycline compositions and methods of preparation used for treatment of infections.  The court finds it has specific jurisdiction over defendant Agila because it filed the ANDA and plans to market its generic product throughout the United States, including Delaware.  The court need not apply federal long-arm jurisdiction for this Indian defendant pursuant to Rule 4(k)(2) since due process is satisfied under 4(k)(1)(A). Defendant MPI is subject to jurisdiction in Delaware because it registered to do business in Delaware. The court finds there is no basis to exercise general jurisdiction over Mylan based on agency and recommends jurisdictional discovery be permitted on the agency relationship between Mylan and Agila regarding the filing of the ANDA. Finally, there is insufficient reason to dismiss MPI as an improper party for failure to state a claim. A declaration submitted in support of the motion to dismiss was outside the pleadings. Accepting the allegations in the complaint as true at this stage of the litigation, the court recommends denying the Rule 12(b)(6) motion to dismiss MPI without prejudice.