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GENEVA PHARMACEUTICALS TECHNOLOGY v. BARR LABORATORIES

March 17, 2003

GENEVA PHARMACEUTICALS TECHNOLOGY CORP., (AS SUCCESSOR IN INTEREST TO INVAMED, INC.), PLAINTIFF,
v.
BARR LABORATORIES, INC., BRANTFORD CHEMICALS INC., BERNARD C. SHERMAN, APOTEX HOLDINGS INC., APOTEX INC. AND SHERMAN DELAWARE, INC., DEFENDANTS. APOTHECON, INC., PLAINTIFF, V. BARR LABORATORIES, INC., BRANTFORD CHEMICALS INC., BERNARD C. SHERMAN, APOTEX HOLDINGS INC., APOTEX INC. AND SHERMAN DELAWARE, INC., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge

OPINION

Defendant Brantford Chemicals Inc. ("Brantford") has moved pursuant to Rule 39(a)(2) of the Federal Rules of Civil Procedure to strike the jury demand on the promissory estoppel claim alleged in the Seventh Cause of Action ("Count VII") of the complaint filed by plaintiff Geneva Pharmaceuticals Technology Corp. ("Geneva") as successor in interest to Invamed, Inc. ("Invamed").

In addition, Geneva has moved for reconsideration of this Court's discovery order of January 16, 2003.

For the following reasons, Brantford's motion to strike the jury demand is granted, and Geneva's motion for reconsideration is granted in part and denied in part.

Prior Proceedings

Invamed filed its complaint on February 6, 1998, alleging violations of the antitrust laws of the United States and various state law claims arising out of defendants' alleged efforts to monopolize and restrain trade in the markets for an oral anti-coagulant medication known as warfarin sodium. The complaint alleged eleven causes of action against the defendants. The claim at issue, Count VII, alleged promissory estoppel against Brantford, as follows:

In its dealings with Invamed prior to October 1997, including providing supplies of clathrate and providing the "Letter of Access," and in its communications with Invamed prior to October 1997, and in light of the custom and practice in the industry and the prior business dealings between Brantford and Invamed, Brantford understood and intended, or reasonably should have understood and intended, that Invamed reasonably would rely to its detriment on Brantford to supply clathrate to Invamed following Invamed's receipt of approval from the FDA.
Invamed, in fact, in good faith did reasonably rely to its detriment on Brantford to supply clathrate to Invamed following Invamed's receipt of approval f[rom] the FDA.
By virtue of the foregoing, Invamed has been damaged in an amount to be established at trial, but believed to be substantially in excess of $75,000.
Compl. ¶¶ 76-78.

On April 9, 1998, Sherman, Apotex Holdings, Apotex, and Sherman Delaware moved under Fed.R.Civ.P. 12(b)(6) to dismiss Invamed's First, Second, Third, Fourth, Eighth, and Ninth Causes of Action, claiming that there are no allegations in the complaint that would establish the basis for those claims. The Court granted this motion to dismiss with leave to replead. Invamed did not replead.

Apothecon filed a separate suit on May 19, 1999, and the cases were consolidated on July 29, 1999. Apothecon included the same causes of action discussed above as well as a few additional ones.

The defendants moved for summary judgment on August 6, 2001, which motion was considered fully submitted on February 13, 2002. In an opinion dated May 10, 2002, all of the antitrust claims (Invamed Compl. Counts I-V; Apothecon Compl. Counts I-VI) and all of Apothecon's state law claims (Apothecon Compl. Counts VII-XV) were dismissed. Further, Invamed's counts X and XI were dismissed.

Brantford moved on January 3, 2003 to strike the jury demand of Geneva as to Count VII. Geneva replied on January 17, 2003.

An opinion issued on January 16, 2003 in response to a series of letters regarding discovery requests. By letter dated January 22, 2203, Geneva moved for reconsideration of one aspect of that order regarding judgment-sharing agreements and also moved for an extension of the deadlines set in that order. Brantford replied by letter dated January 23, 2003.

By memorandum opinion dated January 27, 2003, discovery and trial on Geneva's remaining state claims were stayed pending an appeal of the summary judgment ...


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