OPINION
Defendants Mylan Pharmaceuticals Inc. (“Mylan Pharma”) and Mylan Inc. (“Mylan Inc.” and, together with Mylan Pharmaceuticals, “Mylan” or “Defendants”) have moved to dismiss the complaint filed against them by Plaintiffs Acorda Therapeutics, Inc. (“Acorda”) and Alkermes Pharma Ireland Limited (“Alkermes” and, together with Acorda, “Plaintiffs”). (D.I.10) Defendants bring their motion pursuant to Federal Rule of Civil Procedure 12(b)(2), asserting a lack of personal jurisdiction. Specifically, Mylan contends that the Supreme Court’s recent decision in Daimler AG v. Bauman, — U.S.-,
After reviewing thorough briefing and hearing oral argument, the Court has concluded that it does have personal jurisdiction over Mylan Pharma in this action. While Daimler altered the analysis with respect to general jurisdiction — and the Court agrees with Mylan that this Court cannot exercise general personal jurisdiction over either of the Mylan Defendants on the basis that they are “at home” in Delaware — Daimler does not change the fact that Mylan Pharma consented to this Court’s exercise of personal jurisdiction when it registered to do business and appointed an agent for service of process in the State of Delaware. In addition, Plaintiffs have met their burden to establish that this Court has personal jurisdiction over Mylan Pharma based on specific jurisdiction, which provides an independent reason for denying the motion as it relates to Mylan Pharma.
With respect to Mylan Inc., which is the parent of Mylan Pharma, the Court lacks general jurisdiction, as Mylan Inc. is neither “at home” nor registered to do business in Delaware. However, Plaintiffs allege but have not proven a non-frivolous claim that Mylan Inc. used Mylan Pharma as its agent in connection with the ANDA filing giving rise to this litigation. There
BACKGROUND
1. Plaintiffs: Acorda and Alkermes
Plaintiff Acorda is a corporation organized under the laws of the State of Delaware, having a principal place of business in Ardsley, New York. (D.I. 1 at ¶3) Acorda researches, develops, and sells bio-tech and pharmaceutical products, including therapies to restore neurological functioning in people with multiple sclerosis (“MS”). (Id.) Plaintiff Alkermes is a corporation organized under the laws of Ireland, having a principal place of business in Dublin, Ireland. (Id. at ¶ 4)
Acorda’s “flagship drug product” is Am-pyra® which has been shown to improve walking in people with MS. (Id. at ¶¶ 2, 30) Acorda holds New Drug Application (“NDA”) No. 022250, approved by the U.S. Food and Drug Administration (“FDA”), for the use of 10 mg dalfampridine extended release tablets. (Id. at ¶ 30) It is this product which Acorda sells under the registered name Ampyra®. (Id.)
There are five patents-in-suit: U.S. Patent Nos. 5,540,938 (the “’938 patent”), 8,007,826 (the “’826 patent”), 8,354,437 (the “’437 patent”), 8,440,703 (the “’703 patent”), and 8,663,685 (the “ ’685 patent”) (collectively, “the Ampyra® patents”). All of the Ampyra® patents are listed in the FDA’s “Orange Book”
II. Defendants: Mylan Pharma and Mylan Inc.
Mylan Pharma is a corporation organized under the laws of the State of West Virginia, having a principal place of business in Morgantown, West Virginia. (Id. at ¶ 7; D.I. 12 at 2) It “formulates], develop^], manufactur[es], packages], markets], and sell[s] generic copies of branded pharmaceutical products for the United States market, including in Delaware.” (D.I. 1 a^8)
On April 7, 2010, pursuant to sections 371 and 376 of title 8 of the Delaware Code, Mylan Pharma qualified to do business in Delaware, by filing with the Secretary of State (1) a certificate of incorporation, representing its business as “[pharmaceutical manufacturing, distribution and sales,” and (2) and a statement naming Corporation Services Company, in Wilmington, Delaware, as its registered agent to accept service of process in the State of Delaware. (D.I. 1 at ¶ 7; D.I. 15 at 5; D.I. 16, Exs. A & B) Mylan Pharma is also registered with the Delaware Board of Pharmacy as a licensed “Pharmacy-Wholesale” and a “Distributor/Manufacturer CSR.” (D.I. 1 at ¶ 9; D.I. 16, Exs. C & D) Additionally, Mylan Pharma has “litigated], as a defendant, over 50 other civil actions initiated in this jurisdiction in the
Mylan Inc. is a corporation organized under the laws of the Commonwealth of Pennsylvania, having a principal place of business ' in Canonsburg, Pennsylvania. (Id. at ¶ 10) Mylan Inc. is “a pharmaceutical company which develops, licenses, manufacturers, markets and distributes generic pharmaceuticals in the U.S.” (Id. at ¶ 11) In fact, Mylan Inc. reports that “it is one of the largest generic pharmaceutical companies in the world today in terms of revenue as a result of, inter alia, its ‘ability to efficiently obtain [ANDA] approvals.” (Id. at ¶ 19; D.I. 16, Ex. E at 5) More particularly, Mylan Inc. “holds the number one ranking in the U.S. generics prescription market in terms of sales and the number two ranking in terms of prescriptions dispensed.” (D.I. 1 at ¶ 19)
Athough 20 Mylan Inc. subsidiaries have incorporated in Delaware (see D.I. 16, Ex. E at 37-40), Mylan Inc. is not registered to do business in Delaware (see Tr. at 43). Mylan Inc. has “litigat[ed] as a defendant and assert[ed] counterclaims in at least 15 cases initiated in this jurisdiction over the past ten years.” (D.I. 1 at ¶ 20)
Neither of the Defendants has any manufacturing plants, offices, facilities, other real property, a telephone listing, or a mailing address in the State of Delaware. (D.I. 12 at ¶ 5) In 2013, Mylan Pharma had no sales in Delaware, and that same year Mylan Inc.’s sales in Delaware produced just $429 in revenue. (Id. at ¶ 5) These figures do not include any revenue the Mylan Defendants derive from distribution of. generic drug products in Delaware through out-of-state distributors. (See Tr. at 57)
Mylan Pharma is a wholly-owned subsidiary of Mylan Inc. (Id. at ¶ 7) Plaintiffs allege that Mylan Pharma and Mylan Inc. “are agents of each other and/or work in concert with each other with respect to the development, regulatory approval, marketing, sale, and distribution of pharmaceutical products throughout the United States, including into Delaware.” (Id. at ¶ 21) It is undisputed, however, that Defendants are separate corporate entities. (D.I. 17 at 8)
III. Mylan’s ANDA Filing and ANDA Notice Letter
On January 22, 2014, Mylan Pharma filed ANDA No. 20-6858 (“Mylan’s ANDA Filing”)
On July 9, 2014, Mylan Pharma gave Plaintiffs notice of Mylan’s ANDA Filing (the “Mylan Notice Letter”). (Id. at ¶ 34) Specifically, Mylan Pharma mailed the My-lan Notice Letter to Acorda at its principal place of business in New York and also to Alkermes at its principal place of business in Ireland. (See Tr. at 24, 50)
IY. Plaintiffs’ ANDA Suits
On July 16, 2014, Plaintiffs commenced this action, alleging that Defendants directly and indirectly infringed claims of all of the Ampyra® patents by submitting or causing submission of the Mylan ANDA Filing. (D.I. 1 at 9-16) Because Plaintiffs filed suit within 45 days of receiving the Mylan Notice Letter, the FDA is automatically stayed from giving final approval to Mylan’s Generic Product for 30 months. See 21 U.S.C. § 355Cj)(5)(B)(iii).
In their complaint, Plaintiffs assert five counts of infringement — one for each of the Ampyra® patents — against both Defendants, as well as a sixth count alleging that Mylan Inc. induced infringement by its role in bringing about Mylan’s ANDA Filing. (D.I. 1 at ¶¶ 39-86)
Numerous other generic pharmaceutical companies besides Mylan have filed AN-DAs seeking FDA approval to market generic versions of Ampyra®. Consequently, Plaintiffs filed seven other related ANDA suits in the District of Delaware in July 2014, all of which are assigned to the same undersigned Judge.
V. Mylan’s Motion to Dismiss
On August 20, 2014, Defendants filed their motion to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(2), contending that this Court lacks personal jurisdiction over both of them. (D.I.10) Briefing on the motion was completed on September 26, 2014 (D.I.21), although the parties thereafter submitted letter briefs addressing the subsequent decision by the Honorable Gregory M. Sleet in AstraZeneca v. Mylan,
LEGAL STANDARDS
Pursuant to Federal Rule of Civil Procedure 12(b)(2), a party may move to dismiss a case based on the court’s lack of personal jurisdiction over that party. When a defendant moves to dismiss a lawsuit for lack of personal jurisdiction, the plaintiff bears the burden of showing the basis for jurisdiction. See Power Integrations, Inc. v. BCD Semiconductor, 547
Determining the existence of personal jurisdiction generally requires a two-part analysis — one statutory and one constitutional.
DISCUSSION
In opposing Defendants’ motion, Plaintiffs assert three bases for this Court’s exercise of personal jurisdiction over both Mylan Defendants: (1) general jurisdiction, notwithstanding Daimler, (2) general jurisdiction, based on consent; and (3) specific jurisdiction. In the Discussion below, the Court first describes the Daimler decision, and then turns to each of Plaintiffs’ grounds for finding personal jurisdiction.
I. The Supreme Court’s Decision in Daimler
Daimler involved a dispute over whether the United States District Court for the Northern District of California could exercise general jurisdiction over a German manufacturer of luxury vehicles, Daimler-Chrysler Aktiengesellseaft (“Daimler”). The plaintiffs in Daimler were 22 Argentinian residents, who alleged that a subsidiary of Daimler, Mercedes-Benz Argentina, violated the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S.C. § 1350, by collaborating with Argentinian security forces to commit human rights violations during Argentina’s “Dirty War.” Daimler,
As the basis for the California court to exercise jurisdiction over Daimler, plaintiffs alleged that an agency relationship existed between Daimler and another of its subsidiaries, Mercedes-Benz USA, LLC (“MBUSA”). See id. at 752. MBUSA, which was an “indirect” subsidiary of Daimler wholly-owned by another Daimler subsidiary, served as Daimler’s exclusive importer and distributor in the United States. See id. at 752 & n. 3. MBUSA was incorporated in Delaware and had its principal place of business in New Jersey. See id. at 751-52. MBUSA’s U.S. distribution included California, where MBUSA had several corporate facilities. See id. at 751-52, 758. MBUSA’s annual sales of Daimler vehicles in California generated approximately $4.6 billion in revenues, accounting for 2.4% of Daimler’s global sales. See id. at 766-67 (Sotomayor, J., concurring).
Daimler’s own contacts with California were sporadic, but the plaintiffs argued that MBUSA’s contacts with California could be attributed to Daimler for jurisdictional purposes. See id. at 751-52. The district court disagreed, finding that MBU-SA was not Daimler’s agent, and, further, that Daimler’s own contacts with California were insufficient to support a finding of general jurisdiction in California over Daimler. See id. at 752. The district court dismissed the case.
On appeal, the Court of Appeals for the Ninth Circuit initially affirmed the dismissal. See id. at 753. Later, however, the appellate court granted the plaintiffs’ petition for rehearing and reversed the district court, finding general jurisdiction based on an agency relationship between Daimler and MBUSA. See id. at 753. Thereafter, the Supreme Court “granted certiorari to decide whether, consistent with the Due Process Clause of the Fourteenth Amendment, Daimler is amenable to suit in California courts for claims involving only foreign plaintiffs and conduct occurring entirely abroad.” Id. at 753.
In a unanimous holding,
In reaching its conclusion, the Daimler Court emphasized that although “continuous and systematic contacts” are sufficient to support an exercise of specific jurisdiction when those contacts give rise to the cause of action, an exercise of general jurisdiction requires much more. See id. at 761. To assess whether general jurisdiction was available, the Supreme Court undertook an analysis of whether Daimler was “essentially at home” in California, a concept the Court had described in Goodyear Dunlop Tires Operations, S.A. v. Brown, — U.S. -, 131 S.Ct.
Daimler went on to explain that in all but the most exceptional circumstances, a corporation is “at home” only in the two “paradig[m] ... bases for general jurisdiction”: its place of incorporation and its principal place of business. Id. at 760-61 & n. 19. These “affiliations have the virtue of being unique — that is, each ordinarily indicates only one place — as well as easily ascertainable.” Id. at 760. Accordingly, limiting general jurisdiction to only those forums in which a corporation is “at home” allows corporations “to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit,” while “affording] plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims.” Id. at 760-62. By contrast, “exorbitant” theories of general jurisdiction, which would render a corporation potentially liable to suit for all claims in many if not all states, lead to unpredictability for the corporation and are thus “unacceptably grasping.” Id. at 761-62.
The factual and legal contexts in which Daimler arose could hardly be more different than those in which the instant case arises. Most fundamentally, in the 1970s and 1980s, when Daimler’s subsidiary was allegedly engaged in the activities ultimately giving rise to the 2004 lawsuit against Daimler, Daimler could not have foreseen that, more than two decades later, it would be sued for human rights violations that had occurred in Argentina, and that the suit would be brought in California. See, e.g.,
II. Mylan Is Not “At Home” in Delaware
The first basis on which Plaintiffs oppose Mylan’s motion is that, according to Plaintiffs, this Court may exercise general jurisdiction over both Mylan Defendants based on Defendants’ continuous and systematic contacts with Delaware. Plaintiffs maintain that general jurisdiction is present here in Delaware notwithstanding the Supreme Court’s decision in Daimler. The Court disagrees.
As an initial matter, the Court agrees with both sides that the general jurisdiction analysis required in this case involves consideration solely of the due process is
In order for this Court to have general jurisdiction over Mylan based on minimum contacts, the Court must find that Mylan’s “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler,
General jurisdiction ... calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States.” Nothing in International Shoe and its progeny suggests that “a particular quantum of local activity” should give a state authority over a “far larger quantum of ... activity” having no connection to any in-state activity.
Id. at 762 n. 20.
Here, neither of the two paradigmatic scenarios in which a corporation is “at home” are present, as neither Mylan Phar-ma nor Mylan Inc. are Delaware corporations or have their principal place of business in Delaware. The Supreme Court has not “foreclose[d] the possibility that in an exceptional case, a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State.” Id. at 761 n. 19. But Plaintiffs do not articulate any persuasive basis for finding either Mylan Pharma or Mylan Inc. to have operations in Delaware of such a type and extent as to render either corporation “at home” in Delaware. While both Mylan entities have litigated frequently in the District of Delaware, My-lan Pharma is registered to do business in Delaware, and numerous Mylan Inc. subsidiaries are incorporated in Delaware, these contacts are inadequate for purposes of general jurisdiction. In short, this is not an “exceptional case” in which Mylan should be deemed to be “at home” in Delaware.
For these reasons, this Court cannot exercise general personal jurisdiction over either of the Mylan Defendants on the basis that these corporations are “at home” in Delaware.
III. Mylan Pharma Has Consented to the Jurisdiction of Delaware Courts
Plaintiffs next argue that this Court may exercise general jurisdiction over at least Mylan Pharma as a result of that entity’s compliance with Delaware’s registration statute. That is, Mylan Phar-ma’s decision to register to do business in Delaware and, as Delaware requires, appoint an agent here to accept service of process, has the consequence that Mylan Pharma has consented to the jurisdiction of the courts in Delaware. Mylan Pharma disagrees, arguing that registration to do business in a state “is of no jurisdictional consequence,” for reasons including that Mylan Pharma has registered to do business in 22 states (including Delaware), and it cannot be “at home” in all 22 states. (D.I.12 at 2, 8-9 (citing Daimler,
“Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.” Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,
In sum, the requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue. These characteristics portray it for what it is—a legal right protecting the individual. The plaintiffs demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law—i.e., certain factual showings will have legal consequences—but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not
Id. at 704-05,
Moreover, “[a] variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of [a] court.” Ins. Corp. of Ir.,
One manner in which a corporation may be deemed to have consented to the jurisdiction of the courts in a particular state is by complying with the requirements imposed by that state for registering or qualifying to do business there. Nearly a century ago, in Pennsylvania Fire. Insurance Co. v. Gold Issue Mining & Milling Co.,
In Robert Mitchell Furniture Co. v. Selden Breck Construction Co.,
The purpose in requiring the appointment of such an agent is primarily to secure local jurisdiction in respect of business transacted within the State. Of course when a foreign corporation appoints one as required by statute it takes the risk of the construction that will be put upon the statute and the scope of the agency by the State Court.... Unless the state law either expressly or by local construction gives to the appointment a larger scope, we should not construe it to extend to suits in respect of business transacted by the foreign corporation elsewhere
Id. at 215-16,
Consistent with Pennsylvania Fire and its progeny, the Third Circuit upheld the constitutionality of Pennsylvania’s registration statute, which expressly treated registration to do business in Pennsylvania as consent to the jurisdiction of Pennsylvania’s courts over suits against the registering corporation. See Bane v. Netlink, Inc.,
The Federal Circuit, whose interpretation on this point will be governing in patent cases like this one, has not addressed the constitutionality of treating registration to do business in a state as consent to the jurisdiction of courts in that state. (See Tr. at 20) Two other courts of appeals that have addressed the issue have upheld the constitutionality of such constructions. See Knowlton v. Allied Van Lines, Inc.,
As far as the Court is aware, only two circuits appear to have held that a state registration requirement cannot be the basis for finding consent to general jurisdiction (and one did so years before the Supreme Court’s decision in Insurance Corp. of Ireland). See Wilson v. Humphreys (Cayman) Ltd.,
Plaintiffs’ consent argument rests on Delaware’s registration statute, which provides:
All process issued out of any court of this State, all orders made by any court of this State, all rules and notices of any kind required to be served on any foreign corporation which has qualified to do business in this State may be served on the registered agent of the corporation designated in accordance with § 371 of this title, or, if there be no such agent, then on any officer, director or other agent of the corporation then in this State.
8 Del. C. § 376 (emphasis added). In turn, Section 371 provides, in pertinent part, that:
[n]o foreign corporation shall do any business in this State ... until it ... shall have filed ... [a] statement executed by an authorized officer of each corporation setting forth ... the name and address of its registered agent in this State.... [10 ]
Section 376 does not in [its] terms limit the amenability of service of a qualified corporation to one which does business in Delaware or with respect to a cause of action arising in Delaware. By the generality of its terms, a foreign corporation qualified in Delaware is subject to service of process in Delaware on any transitory cause of action. Express consent to jurisdiction by a foreign corporation takes the form of an appointment of a statutory agent to receive service of process in compliance with the statutory requirements of the state in which the corporation desires to do business. A corporation that authorizes an agent to receive service of process in compliance with the requirements of a state statute, consents to the exercise of personal jurisdiction in any action that is within the scope of the agent’s authority.
Prior to Daimler, the District of Delaware had adhered to Sternberg and the Delaware Supreme Court’s interpretation of Delaware’s registration statute. In Continental Casualty Co. v. American Home Assurance Co.,
Both the United States Supreme Court and the Supreme Court of Delaware have held that a foreign corporation which authorizes an agent to receive service of process in compliance with the requirements of a state registration statute has consented to the exercise of personal jurisdiction in that state, even with regard to causes of action that do not arise from events or transactions occurring within that state.
Id. at 129-30 & n. 3 (citing Penn. Fire,
Given the analysis above, the undersigned Judge concludes that this Court may exercise general jurisdiction over My-lan Pharma based on Mylan Pharma’s consent, consent which Mylan Pharma gave when it complied with the Delaware business registration statute by appointing a registered agent in Delaware to accept service of process. It is undisputed that Mylan Pharma is and has been qualified to do business in Delaware since 2010. (See D.I. 15 at 5; Tr. at 55) As required by Delaware law, Mylan Pharma has appointed a registered agent in Delaware who is
Mylan Pharma challenges this conclusion based on Daimler. In Mylan Phar-ma’s view, Daimler narrowed the due process analysis for general jurisdiction, rendering Sternberg unconstitutional. (See Tr. at 58 (Mylan arguing that pre-Daimler cases “were decided when the assumption was that there was this breadth of general jurisdiction that does not occur anymore”)) Mylan Pharma reads Daimler as broadly standing for the proposition that due process requires all exercises of general jurisdiction, including those based on consent, to be limited to a “corporation’s place of incorporation and principal place of business” or, in exceptional circumstances, equivalent locales where the corporation is “at home.” Under this reasoning, merely registering to do business in a state and appointing an agent for service of process cannot be held to confer general jurisdiction.
It is the view of the undersigned Judge that, to the contrary, Daimler does not eliminate consent as a basis for a state to establish general jurisdiction over a corporation which has appointed an agent for service of process in that state, as is required as part of registering to do business in that state. (See Tr. at 39 (Plaintiffs arguing: “Daimler doesn’t address what happens if somebody says, well, I’m prepared to forego that defense, to give up my right not to be sued here and to register to
In support of its interpretation oiDaim-ler, Mylan Pharma contends that “International Shoe changed the focus of the jurisdictional inquiry from one based on a defendant’s ‘physical presence’ in the forum State to one based on ‘substantial contacts,’ ‘fair play and substantial justice,’ and ‘fundamental fairness.’ ” (D.I. 11 at 10) However, the undersigned Judge finds that the conclusion reached in this opinion is in fact consistent with International Shoe, which did not consider the traditional route to personal jurisdiction of consent, as there the defendant “had no agent within the state upon whom service could be made.”
Aside from International Shoe, none of the cases which the Court has cited in
Moreover, Daimler does not address whether personal jurisdiction is an individual right, whether it may therefore be waived, whether waiver may occur by consent, or whether consent is assessed as a matter of state law. Daimler does not indicate whether MBUSA had appointed an agent to accept service of process in California. This may be due to California courts having found that such registration does not suffice to establish personal jurisdiction. See, e.g., World Lebanese Cultural Union, Inc. v. World Lebanese Cultural Union of N.Y., Inc.,
The undersigned Judge is aware, of course, that a fellow member of this Court has reached a contrary conclusion on this point. In AstraZeneca, Judge Sleet, addressing the same issue presented here, concluded that, after Daimler, exercising general jurisdiction over Mylan Pharma based on consent is untenable, because, “[i]n light of the holding in Daimler ... the Delaware Supreme Court’s decision in Sternberg can no longer be said to comport with federal due process.”
However, in the view of the undersigned Judge, when courts have clearly held that compliance with a state’s registration statute confers general jurisdiction, corporations have the requisite notice to enable them to structure their conduct so as to be assured where they will, and will not, be subject to suit. The problem identified in Daimler only arises when continuous and systematic contacts are used to assess whether a corporation is “at home” in a forum state, which requires a corporation to predict what level of contacts a court will find sufficient. When, instead, the basis for jurisdiction is the voluntary compliance with a state’s registration statute, which has long and unambiguously been interpreted as constituting consent to general jurisdiction in that state’s courts, the corporation can have no uncertainty as to the jurisdictional consequences of its actions.
Judge Sleet further concluded in As-traZeneca that “[fjinding mere compliance with such statutes sufficient to satisfy jurisdiction would expose companies with a national presence (such as Mylan) to suit all over the country, a result specifically at odds with Daimler.”
In short, the undersigned Judge does not believe that Daimler meant, sub silen-tio, to eliminate consent as a basis for jurisdiction. Such a holding would threaten to fundamentally alter the personal jurisdiction defense from a waivable to a non-waivable right, a characteristic of the defense that was not before the Daimler Court and is not explicitly addressed in its opinion. The scope of a corporation’s right to consent to jurisdiction in the courts of a particular state has never been thought to be limited to any certain number of states. It may well be that a corporation will voluntarily consent — whether by compliance with state registration statutes, by contract,
Judge Sleet’s rejection of consent as a basis for general jurisdiction over
IV. Mylan Inc. Has Not Consented to the General Jurisdiction of this Court
Mylan Inc. has not registered to do business in Delaware or appointed a registered agent to accept service of process on its behalf. Yet Plaintiffs assert that if personal jurisdiction exists over Mylan Pharma on a consent theory, personal jurisdiction must also exist over My-lan Inc. by virtue of it having allegedly caused Mylan Pharma, its wholly-owned subsidiary, to register in Delaware and to appoint an agent to accept service of process here. This takes consent too far; it would effectively manufacture consent out of a lack of consent.
As the Delaware Supreme Court stated in Sternberg, “[J]urisdiction over a wholly owned Delaware subsidiary does not automatically establish jurisdiction over the parent corporation in any forum ... both the parent and the subsidiary corporation’s contacts with the forum state must be assessed individually.”
V. This Court Has Specific Jurisdiction over Mylan Pharma
As a final and independent basis for this Court to exercise personal jurisdiction over Mylan Pharma and Mylan Inc., Plaintiffs assert specific jurisdiction. The Court agrees that Plaintiffs have met their burden to establish that this Court may exercise specific jurisdiction as to Mylan Pharma.
“Specific jurisdiction refers to the situation in which the cause of action
Having undertaken the requisite analysis here, the Court finds that it may, consistent with Mylan Pharma’s due process rights, exercise specific jurisdiction over Mylan Pharma in this case. Plaintiffs’ claims in this litigation arise out of and relate to Mylan Pharma’s activities that are, and will be, directed to Delaware. This suit arises from Mylan’s ANDA Filing, which is a prerequisite to obtaining FDA approval, which is necessary in order to sell Mylan’s Generic Product in the United States, including in Delaware. More directly, this lawsuit arises from My-lan Pharma’s sending the Mylan Notice Letter to Plaintiffs, including to Acorda, a Delaware corporation. At the time Mylan Pharma sent the Mylan Notice Letter to Acorda, Acorda had already initiated litigation in Delaware to enforce the Ampy-ra® patents against efforts to introduce generic Ampyra® to the U.S. market. Therefore, when it sent the Mylan Notice Letter to Acorda, Mylan Pharma knew or should have known that: (i) Acorda is a Delaware corporation; (ii) Acorda had already begun litigating the Ampyra® patents in the District of Delaware by filing suit against another ANDA filer (Actavis) here; (iii) Acorda would file suit against Mylan Pharma within 45 days of receiving the Mylan Notice Letter; and (iv) to obtain the efficiencies of coordinated litigation in a single district, Plaintiffs would almost certainly sue Mylan Pharma in Delaware.
Mylan Pharma has directed other activities at Delaware, including registering to do the business of “[pjharmaceutieal manufacturing, distribution and sales” here, appointing a registered agent to accept service of process here, and registering with the Delaware Board of Pharmacy as a “Pharmacy/Wholesale” and “Distributor/Manufacturer CSR.” (See D.I. 1 at ¶¶ 7, 9; D.I. 15 at 20; D.I. 16, Exs. A & B) Mylan Pharma has also been a frequent litigant in the District of Delaware, in precisely the type of case now before the Court — ANDA litigation — and its business model is expressly dependent on the certainty of its participation in such litigation. (See D.I. 1 at ¶ 11) Indeed, Mylan Pharma has litigated over 50 cases in Delaware. (Id. at ¶ 17)
The canonical opinion in this area remains International Shoe, in which we held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has certain minimum contacts with [the State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
In World-Wide Volkswagen Corp. v. Woodson, the Supreme Court explained:
The Due Process Clause, by ensuring the orderly administration of the laws, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.
The Court reaches the same conclusion by considering the factors described in Burger King Corp. v. Rudzewicz,
In AstraZeneca, Judge Sleet found that this Court has specific jurisdiction over Mylan Pharma in another ANDA case. One factual distinction between AstraZ-eneca and the instant case is that in As-traZeneca Mylan Pharma had mailed its paragraph IV certification letter to the plaintiff, AstraZeneca Pharmaceuticals LP (“AstraZeneca”), in Delaware, where As-traZeneca is both incorporated and has its principal place of business. See 72
Moreover, because Acorda is a Delaware corporation, it seems proper to conclude that Acorda suffers “injury” in Delaware as a result of Mylan’s ANDA Filing. Of course, identifying a physical place where Acorda is injured by an ANDA submission is difficult, as a corporation is not a natural person, see Citizens United v. Fed. Election Comm’n,
The Court recognizes, as Mylan emphasizes (see, e.g., Tr. at 60-61), that Plaintiffs’ contacts cannot be the sole basis for finding jurisdiction over Defendants. That does not, however, mean that an injury felt by a Delaware corporate citizen is entirely irrelevant to the specific jurisdiction inquiry. Such injury is felt in Delaware given that Delaware is one of the places at which a Delaware corporation is “at home.”
Walden v. Fiore, — U.S. -,
Finally, as noted by Judge Sleet in As-traZeneca, it appears that specific jurisdiction has traditionally been disfavored as a basis for finding personal jurisdiction in an ANDA case. See AstraZeneca,
Accordingly, the Court concludes that it may, consistent with the Due Process Clause, exercise specific jurisdiction over Mylan Pharma, which is a second basis for the Court to deny the motion to dismiss as to Mylan Pharma.
VI. The Court Will Permit Jurisdictional Discovery as to Whether There Is Specific Jurisdiction Over Mylan Inc.
Plaintiffs contend that this Court may exercise specific jurisdiction over My-lan Inc. as well. To the extent Plaintiffs’ theory is that the direct contacts among Mylan Inc., Delaware, and this lawsuit are sufficient to justify the exercise of specific jurisdiction over Mylan Inc., the Court disagrees. Unlike Mylan Pharma, Mylan Inc. is not registered to do business in Delaware and there is no allegation that Mylan Inc. was directly involved in the preparation or submission of Mylan’s ANDA Filing. The only potentially relevant contacts among Mylan Inc., Delaware, and the instant lawsuit are Mylan Ine.’s involvement in other ANDA litigation (see D.I. 1 at ¶ 20), the incorporation of 20 Mylan Inc. subsidiaries in Delaware (see D.I. 15 at 17; D.I. 16, Ex E at 37-40), and the vast extent of Mylan Inc.’s presence in United States (see D.I. 1 at ¶ 19; D.I. 16, Ex. E at 5). These contacts, on their own, are insufficient to show that Mylan Inc. purposefully directed activities at Delaware and that Plaintiffs’ claims arise out of or relate to those activities.
Plaintiffs alternatively contend that this Court can exercise specific jurisdiction over Mylan Inc. on the basis of an agency relationship between Mylan Inc. and Mylan Pharma, its wholly-owned subsidiary. Plaintiffs allege: “Defendants are agents of each other and/or work in concert with each other with respect to the development, regulatory approval, marketing, sale, and distribution of pharmaceutical products throughout the United States, including into Delaware,” including with respect to Mylan’s ANDA Filing at issue here. (D.I. 1 at 6) While “the mere fact that a non-Delaware corporation owns a Delaware subsidiary is not sufficient in itself to justify Delaware’s exercise of personal jurisdiction over the non-Delaware parent,” ACE & Co. v. Balfour Beatty PLC,
Plaintiffs have alleged that Mylan Pharma’s relevant contacts can be attributed to Mylan Inc. Plaintiffs request that, if the Court concludes they have failed to meet their burden of establishing personal jurisdiction over either of the Defendants, the Court allow Plaintiffs to undertake jurisdictional discovery instead of dismissing Plaintiffs’ claims. {See D.I. 15 at 19)
Generally, “jurisdictional discovery should be allowed unless the plaintiffs’ claim [of personal' jurisdiction] is clearly frivolous.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n,
Plaintiffs’ allegation of an agency relationship between Mylan Inc. and Mylan Pharma is not clearly frivolous. In addition to the undisputed parent-subsidiary relationship, Plaintiffs have specifically alleged that Mylan Pharma’s appointment of a registered agent for service of process in Delaware can be attributed to Mylan Inc. (See D.I. 1 at 6) This, taken together with allegations about Mylan Inc’s 20 Delaware subsidiaries and nationwide distribution of products (see D.I. 16, Ex. E), at least suggests, with reasonable particularity, the possible existence of requisite contacts among Mylan Inc., Delaware, and this litigation.
Therefore, the Court will permit Plaintiffs to take limited jurisdictional discovery into whether the Court may exercise specific personal jurisdiction over Mylan Inc. based on an agency theory.
CONCLUSION
For the reasons stated above, the Court will deny the motion to dismiss as to My-lan Pharma. This Court has general jurisdiction over Mylan Pharma due to Mylan Pharma’s consent, and it has specific jurisdiction over Mylan Pharma based on My-lan Pharma’s relationship with Delaware and the particular circumstances of this ANDA litigation. With respect to Mylan Inc., this Court may not exercise general jurisdiction, because Mylan Inc. is not “at home” here and has not consented to general jurisdiction here. However, the Court will permit Plaintiffs to take limited jurisdictional discovery in order to determine whether the Court may exercise specific jurisdiction over Mylan Inc.
An appropriate Order follows.
At Wilmington this 14th day of January, 2015:
For the reasons stated in the Opinion issued this same date,
IT IS HEREBY ORDERED that:
1. Defendants’ Motion to Dismiss for Lack of Jurisdiction Over the Person (D.I.10) is DENIED with respect to Defendant Mylan Pharmaceuticals Inc. and DENIED WITHOUT PREJUDICE with respect to Defendant Mylan Inc. Defendant Mylan Inc. may again move to dismiss after the completion of jurisdictional discovery.
2. Plaintiffs’ request for jurisdictional discovery (D.I. 15 at 19) is GRANTED with respect to the remaining issue of whether there is specific jurisdiction over Defendant Mylan Inc.
3. The parties shall meet and confer and shall submit, no later than January 28, 2015, a joint status report containing their proposal(s) as to how this matter should proceed in light of the Court’s ruling. Among other things, the parties shall provide their view(s) as to the scope and timing of jurisdictional discovery, as well as a procedure by which, following the completion of such discovery, Mylan Inc. may renew its motion to dismiss for lack of personal jurisdiction.
Notes
. At oral argument on the motion to dismiss, Mylan’s attorney stated, "The Daimler court changed the game. Because of that, we don’t expect to be sued here any more.” (See Transcript of Dec. 15, 2014 Hearing (D.L29) ("Tr.”) at 9)
. As the Supreme Court has explained, "To facilitate the approval of generic drugs as soon as patents allow, the Hatch-Waxman Amendments and FDA regulations direct brand manufacturers to file information about their patents.... [T]he FDA ... [then] publishes the ... patent numbers and expiration dates, in a fat, brightly hued volume called the Orange Book (less colorfully but more officially denominated Approved Drug Products with Therapeutic Equivalence Evaluations).” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, - U.S. -,
. Mylan's notice letter to Plaintiffs mistakenly identified Mylan’s ANDA Filing as having been given No. 20-6268. (See D.I. 1 at ¶ 34; D.I. 12 at 2 n.2)
. See Acorda Therapeutics Inc. v. Actavis Labs. FL Inc., C.A. No. 14-882-LPS,
. With regard to the statutory inquiry, the court applies the law of the state in which the district court is located; as to the constitutional inquiry, in a patent case such as this one the court applies the law of the Federal Circuit. See Autogenomics, Inc. v. Oxford Gene Tech. Ltd.,
. Justice Sotomayor wrote a concurring opinion. See
. The Daimler majority opinion concludes by emphasizing "the risks to international comity” that the Ninth Circuit's "expansive view of general jurisdiction posed.”
. Judge Sleet reached the same conclusion in AstraZeneca,
. Thus, Mylan's suggestion that Plaintiffs’ position on consent to general jurisdiction cannot be correct, since adoption of this position would undermine uniformity in the administration of patent laws (see, e.g., Tr. at 15-16), is unpersuasive. After Daimler, as before, states are free to vary in their laws relating to jurisdiction. See generally Daimler,
. Delaware law further provides that the Secretary of State will serve as the designated agent to accept service of process for a non-qualified foreign corporation that transacts business in Delaware. See 8 Del. C. §§ 376, 382.
. Mylan does not dispute that in Sternberg the Delaware Supreme Court was absolutely clear as to how it interprets the Delaware registration statute. (See Tr. at 18)
. Because Mylan Pharma has consented to this Court's jurisdiction, it is unnecessary to consider whether Mylan Pharma has sufficient "minimum contacts” with Delaware. See, e.g., Bancorp Bank v. Blackburn,
Mylan points out that the Sternberg Court itself undertook a due process analysis, despite stating that this inquiry was unnecessary, and ultimately found sufficient minimum contacts on which to base the exercise of jurisdiction there. See
. Other decisions are consistent with the long-standing distinction between consent and non-consent as separate bases for personal jurisdiction. See Perkins,
. Importantly, these are largely the same cases on which the Delaware Supreme Court relied in Sternberg— and that decision has not been revisited, by the Delaware Supreme Court or the Delaware General Assembly, in the time since Daimler or even in the decades since Sternberg was handed down. It is also noteworthy that the Third Circuit’s decision in Bane remains precedent, even after Daimler.
. Consistent with this view that jurisdiction by consent has continuing vitality is the recent action of the Second Circuit, in remanding two cases to the Southern District of New York, to consider whether a party which post-Daimler was not "at home” in New York might, nonetheless, be found to have consented to jurisdiction by virtue of registering to do business in New York. See Gucci America Inc. v. Li,
. Mylan Pharma attempts to distinguish consent by compliance with Delaware’s registration statute from consent by contract, insisting, "voluntary, contractual consent is significantly different than conferring jurisdiction based on a registration statute that is silent with respect to jurisdiction.” (D.I. 17 at 5 n.5; see also Tr. at 63-65 ("[T]he contract analysis. If we put a provision in there, it’s consent to specific jurisdiction.”) The Court is not persuaded there is a meaningful difference between the voluntary nature of consent found in a private contract and consent based on compliance with a statute that has long and clearly been interpreted to constitute consent.
. The Court takes judicial notice of the fact that, on December 17, 2014, Judge Sleet certified an interlocutory appeal of his order in AstraZeneca to the Federal Circuit. (See AstraZeneca AB v. Aurobindo Pharma Ltd., C.A. No. 14-664-GMS D.I. 103) As far as this Court is aware, Mylan’s request to pursue its interlocutory appeal is pending before the Federal Circuit. The undersigned Judge wholeheartedly agrees with Judge Sleet that the existence of personal jurisdiction in an ANDA case in a post-Daimler world is an important question of first impression that will be (and has been) raised in many pending ANDA cases. (See id. at 1 n.1)
. As the Supreme Court noted in Daimler,
.As with the general jurisdiction analysis, the Court need not analyze the specifics of Delaware’s long-arm statute, as Mylan is not arguing the statutory prerequisites are unmet. (See Tr. at 4)
. The record in AstraZeneca established that Mylan Pharma had initiated at least six suits in the District of Delaware over the past two decades and had defended here against many
. A published report recently found that nearly 41% of all ANDA cases filed over the last five years have been filed in the District of Delaware. See "Hatch-Waxman/ANDA Litigation Report,” Lex Machina, 1 (Nov. 6, 2014) (hereinafter, the "Lex Machina Report”), available at https://lexmachina.com/2014/ll/ lex-machina-releases-hatch-waxman-anda-liti gation-report/. The Lex Machina Report found that between 2009 and September 2014, 1,671 new ANDA cases were filed nationwide, and 678 of these cases were filed in Delaware. Indeed, the Lex Machina Report further found that in the same five-year period nearly eighty percent of all ANDA cases were filed in just three Districts: Delaware (678), New Jersey (481), and the Southern District of New York (148). This data further illustrates the predictability of Mylan Pharma ending up litigating the instant case in Delaware.
. As Judge Sleet described in AstraZeneca, "Another peculiarity of the Hatch-Waxman Act is that it builds patent litigation into the FDA approval process.”
. None of the defendants in the other seven, related Ampyra® ANDA cases have challenged this Court’s jurisdiction. (Tr. at 31) Hence, all seven of those cases will proceed here, regardless of whether the Mylan case remains here or not. If the Court were to dismiss the case against Mylan, it would not reduce the amount of litigation in federal courts. Instead, the case against Mylan would proceed in the Northern District of West Virginia, where Plaintiffs have already filed a protective action against both Mylan Defendants. (See Tr. at 28, 31)
.Burger King,
. If the ANDA injury, artificial though it may be, were not felt somewhere, there would arguably not be a case or controversy, and there would then also not be subject matter jurisdiction. Mylan does not argue there is a lack of case or controversy among the parties here.
. The Court recognizes that there is pre-Daimler authority supporting the contention that "injury in a patent infringement action occurs not where the patent holder resides but where 'the infringing activity directly impacts on the interests of the patentee,’ like the place of an infringing sale.” Pfizer Inc. v. Apotex, Inc.,
. By separate Order the Court will solicit the parties’ views as to the scope and timing of such jurisdictional discovery, as well as a procedure by which, following the completion of such -discovery, Mylan Inc. may renew its motion to dismiss for lack of personal jurisdiction.