az v. handa n.d. ca. notice of voluntary dismissal
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NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE No. C08-04026 MMC
PETER A. STROTZ, Cal. Bar No. [email protected]
PAUL R. JOHNSON, Cal. Bar No. [email protected]
WILLIAM E. STEIMLE, Cal. Bar No. [email protected]
FILICE BROWN EASSA & MCLEOD LLP1999 Harrison Street, 18th FloorOakland, CA 94612-3520Tel.: 510.444.3131Fax: 510.839-7940
HENRY J. RENK*BRUCE C. HAAS*STEVEN C. KLINE*FITZPATRICK, CELLA, HARPER & SCINTO30 Rockefeller PlazaNew York, NY 10112Tel.: 212.218.2100
*applications to appear pro hac vice to have been submitted but for dismissal(Additional counsel listed after signature)
Attorneys for PlaintiffsASTRAZENECA PHARMACEUTICALS LP and ASTRAZENECA UK LIMITED
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
ASTRAZENECA PHARMACEUTICALS LP andASTRAZENECA UK LIMITED,
Plaintiffs,v.
HANDA PHARMACEUTICALS, LLC, andJOHN DOE ENTITY,
Defendants.
No. C08-04026 MMC
NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE
(Fed. R. Civ. P. 41(a)(1)(A)(i))
PLEASE TAKE NOTICE THAT plaintiffs AstraZeneca Pharmaceuticals LP and
AstraZeneca UK Limited (collectively, “AstraZeneca”) hereby voluntary dismiss this action without
prejudice. A responsive pleading has not been filed in this action. AstraZeneca gives this notice
pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).
Case3:08-cv-04026-MMC Document9 Filed09/22/08 Page1 of 3
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- 2 -NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE No. C08-04026 MMC
As noted in AstraZeneca’s Notice of Other Action or Proceeding (filed September 3, 2008),
this present action was filed pursuant to the Hatch-Waxman Act for patent infringement.
AstraZeneca previously filed an essentially identical action on July 28, 2008, in the United States
District Court for the District of New Jersey. That action, pending before the Honorable
Joel A. Pisano, is entitled AstraZeneca Pharmaceuticals LP, et al. v. Handa Pharmaceuticals, LLC,
et al., Civil Action No. 08-cv-3773 (JAP)(TJB) (“the New Jersey Handa action”). The parties in the
two actions are the same. As discussed in the Notice of Other Action or Proceeding filed in this
case, there are a number of reasons why the District of New Jersey presents a better forum. Among
other things, several earlier patent actions concerning one of the two patents involved in this action
and the New Jersey Handa action were previously adjudicated before Judge Pisano.
Nevertheless, based on pre-suit correspondence between counsel, AstraZeneca anticipated
that defendant Handa Pharmaceuticals, LLC (“Handa”) would challenge personal jurisdiction in the
New Jersey Handa action. AstraZeneca filed the present action as a “protective” suit to assure that
regardless of any jurisdictional determination in New Jersey, there would be an action—timely filed
pursuant to the Hatch-Waxman Act—in which AstraZeneca’s claims could be adjudicated. Several
decisions have recognized that such protective patent suits are prudent on the part of a patent owner
in a Hatch-Waxman situation. (See, e.g., PDL Biopharma, Inc. v. Sun Pharm. Indus., Ltd., No. 07-
11709, 2007 WL 2261386, at *2 (E.D. Mich., Aug. 6, 2007); Abbott Laboratories v. Mylan
Pharmaceuticals, Inc., No. 05 C 6561, 2006 WL 850916, at *8 (N.D. Ill., Mar. 28, 2006).) As
indicated in its Notice of Other Action or Proceeding, AstraZeneca had expected to file a motion to
stay or to transfer this action.
Handa, however, has since filed its answer in the New Jersey Handa action, in which it
consented to personal jurisdiction and venue in the District of New Jersey. Accordingly, there is no
longer any issue about litigating in that forum.
Therefore, AstraZeneca is voluntary dismissing this action in the Northern District of
California without prejudice and will continue to pursue resolution of the matter in the New Jersey
Handa action.
Case3:08-cv-04026-MMC Document9 Filed09/22/08 Page2 of 3
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- 3 -NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE No. C08-04026 MMC
Dated: September 22, 2008
Respectfully submitted,
FILICE BROWN EASSA & MCLEOD LLP
By: /s/ Paul R. JohnsonPETER A. STROTZPAUL R. JOHNSONWILLIAM E. STEIMLE
HENRY J. RENK*BRUCE C. HAAS*STEVEN C. KLINE*FITZPATRICK, CELLA, HARPER & SCINTO30 Rockefeller PlazaNew York, NY 10112Tel.: 212.218.2100Fax: 212.218.2200
CHARLES E. LIPSEY*MARK J. FELDSTEIN*FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER LLPTwo Freedom Square11955 Freedom DriveReston, VA 20190Tel.: 571.203.2700Fax: 202.408.4400
*applications to appear pro hac vice to have been submitted but for dismissal
Attorneys for PlaintiffsASTRAZENECA PHARMACEUTICALS LP andASTRAZENECA UK LIMITED
Case3:08-cv-04026-MMC Document9 Filed09/22/08 Page3 of 3