By Memorandum Opinion entered by The Honorable Richard G. Andrews in Novartis Pharmaceuticals Corp., et al. v. Zydus Noveltech Inc., Civil Action No. 14-1104-RGA (D.Del., August 7, 2015), the Court granted Defendant Zydus Noveltech Inc.'s motion to dismiss based on lack of personal jurisdiction.
Plaintiffs did not dispute the lack of general jurisdiction over Defendant in Delaware. Id. at 9. However, Plaintiffs argued that Delaware had specific jurisdiction over Defendant for two reasons: (1) Defendant directed its notice of ANDA filing to Novartis Pharmaceuticals, a Delaware corporation; and (2) Defendant would eventually, if authorized by the FDA, sells its generic product in Delaware. Id. at 10. Defendant disputed jurisdiction in Delaware arguing, among other things, that sending a notice letter to Novartis Pharmaceuticals, a Delaware corporation, at its offices in New Jersey was not sufficient to establish jurisdiction over it in Delaware. Id.
The Court agreed that Defendant's activities had not been purposefully directed at Delaware such that the Court could exercise specific jurisdiction over Defendant. Id. at 11. The Court reasoned that Defendant does not conduct business in Delaware, has not registered to do business in Delaware, does not have an agent to accept process in Delaware, has not previously litigated in Delaware at all, has no property, staff or offices in Delaware, and no work related to preparing the ANDA or product was conducted in Delaware. Id. at 11-12. The Court noted that, although Defendant probably anticipated being sued in Delaware, Defendant's anticipation by itself was not enough for specific jurisdiction. Id. The Court also noted that "[s]pecific jurisdiction cannot be exercised merely because an ANDA notice letter was sent to a Delaware corporation, in another state, because to do so would offend traditional notions of fair play and substantial justice." Id. at 12.
A copy of the Memorandum Opinion is attached.
The takeaway from this case is that, in order for personal jurisdiction in the District of Delaware to exist over a non-resident defendant in the ANDA context, there must be more evidence of minimum contacts with Delaware than simply the filing by the non-resident defendant of an ANDA directed to a Delaware corporation. At the very least, the non-resident defendant must have actually sent the notice of the ANDA filing to the Delaware corporation in Delaware (as opposed to some out of state location), conduct some business in Delaware, be registered to do business in Delaware, and/or have some other minimum contacts with Delaware that do not offend traditional notions of fair play and substantial justice.
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