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Synergy Advanced Pharmaceuticals, Inc. v. CapeBio

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


May 25, 2011

SYNERGY ADVANCED PHARMACEUTICALS, INC., PLAINTIFF,
v.
CAPEBIO, LLC, COMBIMAB, INC., AND PER LINDELL, DEFENDANTS.

The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

I. INTRODUCTION

Synergy Advanced Pharmaceuticals, Inc. ("Synergy") brings this action against CapeBio, LLC ("CapeBio"), CombiMab, Inc. ("CombiMab") and Per Lindell (collectively, "Defendants"), seeking monetary and injunctive relief for defendants' breach of various contractual provisions. Synergy initially filed suit in New York State court, after which defendants removed the action to this Court on the basis for diversity jurisdiction.*fn1 Synergy now moves to remand the action to state court on the grounds that there is no diversity of citizenship and the case was fraudulently removed. Defendants oppose that motion, alleging, for the first time, that the Court has original jurisdiction over the action because it "arises under" federal patent law. Defendants also cross-move to drop defendants CapeBio and CombiMab, who have stipulated to being bound by any outcome of this case, in order to create diversity jurisdiction, as an alternative or additional ground of federal jurisdiction. For the reasons below, Synergy's motion is denied and defendants' motion is granted.

II. BACKGROUND

A. The Parties

Synergy is a small drug development company, incorporated in Delaware, with its principal place of business in New York.*fn2 Its primary business is the development of certain urgoguanylin or ST-peptide derivatives, including a compound called SP-304 or Guanilib, which are used to treat gastrointestinal disorders.*fn3 CapeBio is a pharmaceutical consultancy company, incorporated in Delaware, with its principal place of business in Maryland.*fn4 Lindell, who is a citizen of Maryland, is CapeBio's president and only shareholder.*fn5 Lindell is also the president and only shareholder of CombiMab, which is incorporated in Delaware, with its principal place of business in Maryland.*fn6

B. Agreement Between Synergy and CapeBio

On September 25, 2007, Lindell (on behalf of CapeBio) and Bernard Denoyer (on behalf of Synergy) executed a services agreement ("Agreement") under which CapeBio agreed to perform consulting services related to the research and development of gastrointestinal pharmaceutical products in exchange for specified monetary compensation.*fn7 Performance of the Agreement commenced on October 1, 2007*fn8 and was terminated on July 1, 2008.*fn9 The Agreement expressly provides that several of its provisions -- including a confidentiality provision, a covenant not to compete, and a provision regarding the assignment of inventions -- "shall remain in effect notwithstanding the termination of [the] Agreement for any reason."*fn10 Most pertinent to deciding Synergy's motion is the provision regarding the assignment of inventions.

The Agreement states that all ideas, methods, inventions, discoveries, improvements, work products or developments, whether patentable or unpatentable, that relate to [CapeBio's] work with [Synergy], made or conceived by [CapeBio], solely or jointly with others, while providing consulting services to [Synergy] . . . shall belong exclusively to [Synergy] . . . whether or not patent applications were filed thereon . . . . *fn11

Accordingly, CapeBio is required to assign all "such inventions and all such patents that may issue thereon" to Synergy.*fn12 These provisions apply to all inventions produced within one year of termination or expiration of the Agreement.*fn13

C. The August 25, 2009 Action

On August 25, 2009, Synergy filed a Complaint in New York State Supreme Court against CapeBio and Lindell.*fn14 The complaint alleged that Lindell had, inter alia, breached the Agreement's confidentiality provision by using confidential information to develop a molecule for treating gastrointestinal disease*fn15 and violated the covenant not to compete.*fn16 Pursuant to these allegations, Synergy sought both injunctive and monetary relief.*fn17 Upon obtaining an affidavit from Lindell swearing that he had not violated the Agreement, Synergy voluntarily discontinued that action without prejudice.*fn18

D. The Current Action

Four months after discontinuing the August 25, 2009 action, Synergy again filed a complaint in state court on December 22, 2009. That complaint -- which, in amended form, is the subject of this action -- repeats Synergy's allegations from the prior action*fn19 and further asserts that Lindell formed a new entity, CombiMab, as a shell company and alter ego of Lindell.*fn20 Synergy alleges that Lindell, through CapeBio and CombiMab, breached the Agreement by, inter alia, filing a patent or patents in competition with Synergy,*fn21 consulting or listing as consultants on a business plan several scientists who had consulting contracts with Synergy,*fn22 making presentations to various venture capital firms regarding the development of uroguanylin analogs and analogs of ST Peptides,*fn23 and misappropriating Synergy's confidential information for its own benefit.*fn24

Synergy also asserts that Lindell committed perjury by executing the affidavit that caused Synergy to discontinue its prior action without prejudice.*fn25 Synergy seeks, among other relief, assignment of any patents that properly should be assigned to it under paragraph 11 of the Agreement.*fn26

Defendants removed the action to federal court on the basis of diversity jurisdiction.*fn27 Over the course of the ensuing year, discovery was completed and a jury trial was scheduled to begin on April 23, 2011. On April 5, 2011, Synergy notified the Court that, in reviewing pretrial materials, it had become aware that there was no diversity of citizenship between the parties, as Synergy, CapeBio and CombiMab are all incorporated in Delaware.*fn28 Synergy alleges that the case was fraudulently removed to federal court through the deliberate omission by defendants' previous counsel of the fact that Synergy is a Delaware corporation, despite that fact appearing on the face of the Complaint.*fn29 As a result, Synergy now seeks to have the action remanded to state court.

Defendants oppose remand. While acknowledging that there is no diversity, defendants argue, for the first time, that the Court has subject matter jurisdiction over the case because it raises a substantial issue of patent law, over which federal courts have exclusive jurisdiction.*fn30 Additionally, defendants have entered into a Stipulation amongst themselves that binds CapeBio and CombiMab to whatever the outcome of the case may be. They argue that this Stipulation renders CapeBio and CombiMab dispensable parties and thus, ask this Court to dismiss the corporate entities as parties over Synergy's objection.*fn31

III. APPLICABLE LAW

A. Jurisdiction under Federal Patent Law

Under 28 U.S.C. section 1338(a), "[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents . . . ." Jurisdiction under section 1338(a) extend[s] only to those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.*fn32

Thus, a case "arises under" federal patent law "where the vindication of a right under state law necessarily turn[s] on some construction of federal [patent] law."*fn33

The same test applies when construing section 1338 as when construing section 1331, the general federal-question provision.*fn34 The "well- pleaded complaint" rule dictates that whether a case arises under federal law "must be determined from what necessarily appears in the plaintiff's statement of his own claim . . . unaided by anything alleged in anticipation [or] avoidance of defenses which it is thought the defendant may interpose."*fn35 "[A] case may not be removed to federal court on the basis of a federal defense . . . even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case."*fn36 Furthermore, "a claim supported by alternative theories in the complaint may not form the basis for § 1338(a) jurisdiction unless patent law is essential to each one of those theories."*fn37

On the other hand, "a plaintiff may not defeat § 1338(a) jurisdiction by omitting to plead necessary federal patent-law questions."*fn38

B. Diversity Jurisdiction

Undersection 1332(a), a federal district court has jurisdiction over "cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant."*fn39 When a case over which a federal district court would have diversity jurisdiction is filed in state court, a defendant may remove the action to federal court, "provided that no defendant 'is a citizen of the State in which such action is brought.'"*fn40 A plaintiff "objecting to removal 'on the basis of any defect in removal procedure' may, within 30 days, file a motion asking the district court to remand the case to state court."*fn41 However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."*fn42

"In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability."*fn43 When a party files a motion to remand, challenging the removal of an action from state court, "the party asserting federal jurisdiction bears the burden of establishing jurisdiction."*fn44 If the removing party cannot demonstrate federal jurisdiction by competent proof, the removal was in error and the district court must remand the case to the court in which it was filed.*fn45

A court may drop a nondiverse party to preserve diversity jurisdiction,*fn46 as long as that party is not "indispensable" under Rule 19(b) and would not cause prejudice to any of the remaining parties.*fn47 Rule 19(b) lays out four factors for consideration:

(1) whether a judgment rendered in a person's absence might prejudice that person or parties to the action, (2) the extent to which any prejudice could be alleviated, (3) whether a judgment in the person's absence would be adequate, and (4) whether the plaintiff would have an adequate remedy if the court dismissed the suit.*fn48

There is no "bright-line rule"that all parties to a contract are indispensable, given "Rule 19(b)'s flexible standard."*fn49

IV. DISCUSSION

It is undisputed that, as the case currently stands, there is no diversity among the parties. Synergy, CapeBio and CombiMab are all Delaware corporations. Thus, the suit was improperly removed to federal court. Were this the extent of the argument, it would be clear that this Court lacks subject matter jurisdiction and I would have no choice but to remand the case to state court. However, defendants now argue that the Court has original jurisdiction over the case as "arising under" federal patent law. Defendants further suggest, as an alternative or additional basis for jurisdiction, that diversity could be created by dismissing CapeBio and CombiMab as parties. To that end, defendants have entered into a Stipulation under which CapeBio and CombiMab agree to be bound by the outcome of this suit. Defendants argue that this Stipulation will prevent Synergy from experiencing any prejudice by their dismissal.

For the reasons stated below, I find that this suit does not "arise under" federal patent law. Thus, the Court does not have federal question jurisdiction over this case. However, I find that in view of defendants' Stipulation, the Court can dismiss the corporate entities in order to create diversity jurisdiction. As the parties have briefed the federal patent law issue, and in the interest of creating a full record, I begin by addressing the patent law argument, before explaining my reasons for granting defendants' Motion to Drop CapeBio and CombiMab.

A. The Suit Does Not "Arise Under" Federal Patent Law

Synergy states a variety of claims -- including breach of fiduciary duty, breach of contract, and unfair competition -- which are based on allegations that defendants have violated the 2007 Agreement signed between Synergy and CapeBio. As part of the breach of fiduciary duty claim, Synergy alleges a breach of defendants' duties of good faith and loyalty by, inter alia, "filing patents which have been assigned to CombiMab and which should rightfully belong to plaintiff."*fn50 As part of the breach of contract claim, Synergy alleges that "Lindell and CapeBio have breached, and continue to breach, the non-disclosure provisions of the Agreement by using and disclosing Synergy['s] confidential information and goodwill, without Synergy's consent, and the Assignment of Inventions provision."*fn51 As part of the unfair competition claim, Synergy alleges that defendants "have used confidential information acquired from Synergy concerning the research and development of SP-304 and related uroguanylin analogs, as well as Synergy's proprietary ST peptide analogs."*fn52

Synergy's claims are based, in part, on the theory that defendants have sought patent protection for compounds that Lindell must have been working on while prohibited from doing so under the Agreement and/or by using Synergy's confidential information, which he was also prohibited from using under the Agreement.*fn53 However, each claim also includes factual allegations unrelated to patents or patentability. As relief, Synergy asks the Court, inter alia, to "[a]ward Synergy an assignment of all patents and other intellectual property rights CapeBio, Lindell, and CombiMab or any other entity under which Lindell may be doing business, currently hold relating to any Inventions, as that term is defined in paragraph 11 of the Agreement, obtained in breach of paragraph 11 of the Agreement."*fn54 Synergy also seeks a variety of other forms of injunctive, declaratory, and monetary relief.

From these allegations, defendants have developed the theory that the instant action is in fact a federal patent law case, not simply a state contract law dispute. Defendants read the above-described prayer for relief as seeking a court order "that Dr. Lindell assign four provisional patent applications, filed in the name of Dr. Henry Wolfe, to Synergy."*fn55 Defendants then reason backward to conclude that "Synergy alleges that Dr. Lindell is the true inventor of the patent applications: 'Lindell was researching and developing uroguanylin analogs and ST peptide derivatives and seeking patent protection for these inventions during the one-year restrictive period or prior thereto, in breach of CapeBio's and Lindell's obligations.'"*fn56 However, defendants have proven too much.

Synergy never specifies in the Complaint the particular patents of which it seeks assignment, much less specifically claims four patent applications in the name of Dr. Henry Wolfe. Synergy simply claims "any patents and other intellectual property rights" to which it is entitled under Paragraph 11 of the Agreement. This is a contract claim, which will require a fact-finder to construe the contract and decide the facts to determine whether or not Synergy is entitled to patents or other intellectual property rights relating to inventions that defendants developed, or helped to develop, in violation of their contractual obligations. Federal patent law did not create Synergy's claim, nor is it a necessary element of that claim. At most, patent law arises in the context of defendants' defense -- that Dr. Wolfe, not Dr. Lindell, was the true inventor of compounds for which defendants have sought patent or other intellectual property protection. However, a patent-law-based defense does not give rise to federal subject matter jurisdiction.

Even more significantly, each of Synergy's claims rests on a variety of theories, including, but not limited to, theories that may turn on a question of federal patent law. Although the Federal Circuit Court of Appeals has held, following the Supreme Court's decision in Christianson v. Colt Industries Operating Corp.,*fn57 that inventorship is one of the four areas of federal patent law "substantial enough to satisfy the jurisdictional test,"*fn58 it has also made clear that "a claim arises under the patent laws only if the inventorship issue is essential to the resolution of the claim."*fn59 Significantly, the Supreme Court in Christianson distinguished between claims and theories, noting that "just because an element that is essential to a particular theory might be governed by federal patent law does not mean that the entire . . . claim 'arises under' patent law."*fn60 In the instant case, while each claim relies to some degree upon theories of patent law, whether explicitly or implicitly, each claim also relies upon theories unrelated to patent law. As a result, patent law is not essential to the resolution of Synergy's claims, and so those claims do not "arise under" federal patent law.

Additionally, the possibility that the fact-finder may be called upon to determine the true inventor of certain compounds does not turn such an inquiry into one that "arises under" federal patent law. The contract at issue in the instant case closely resembles that in the Federal Circuit case American Telephone & Telegraph Co. v. Integrated Network Corporation ("AT&T").*fn61 In that case, the relevant contract provision assigned rights to "inventions . . . conceived" during the contractual period.*fn62 The court noted that "conception of inventions . . . is [not] solely a technical question of patent law . . . . [T]here is no reason to assume [the contract] meant to cover only those [inventions] which are patentable."*fn63 The court went on to note, when an invention was conceived may be more a question of common sense than of patent law . . . In other words, the contract may have used conception in its generic, broadest sense. We will not assume a bob-tailed meaning that could lead to derogation of the primary right of the state courts to decide what state law has to say about this contract.*fn64

Notwithstanding defendants' claim that because the Agreement employed language common to the patent context, ergo this must be a patent case,*fn65 AT&T demonstrates that such language is not exclusive to patent law, nor does the use of such language necessarily indicate that the claims arise under patent law. Notably, the Agreement between Synergy and CapeBio was even more explicit than the AT&T contract in covering inventions "whether patentable or unpatentable" and "whether or not patent applications were filed thereon."*fn66

Furthermore, to the extent that defendants argue that this case will require an adjudication of the true inventor of pending patent applications, this Court does not have jurisdiction to render such a judgment. The United States Patent and Trademark Office has exclusive jurisdiction to decide or modify inventorship on pending patent applications. The district courts have jurisdiction only to resolve contested inventorship of issued patents.*fn67

Finally, the only patent-related relief that Synergy seeks -- assignment of any patents in dispute -- is "available under the general law," and so does not "arise under" federal patent law.*fn68 For all of the above reasons, I find that Synergy's claims do not "arise under" federal patent law, and thus, this Court does not have subject matter jurisdiction over the suit on that basis.

B. CapeBio and CombiMab Are Dispensable Parties and May Be Dismissed to Create Diversity Jurisdiction

At present, this Court lacks subject matter jurisdiction over the instant matter because there is no diversity among the parties. This case was removed from state court mistakenly, and quite probably by operation of fraud, through defendants' previous counsel's failure to plead that Synergy is a Delaware corporation, as are CapeBio and CombiMab. Although I share Synergy's incredulity that this was an "honest mistake,"*fn69 I find it equally unlikely that Synergy's counsel did not realize the lack of diversity until April of this year, more than a year after removal was effected. Defense counsel's omission concerned the citizenship of Synergy,information with which Synergy was very well acquainted. Thus, Synergy should have moved to remand the suit immediately, instead of waiting until the eve of trial. However, as the lack of diversity creates a jurisdictional defect, I must address the issue even at this late stage.

It is abundantly clear that Synergy is unwilling to seek dismissal of CapeBio and CombiMab, even with the protection of defendants' Stipulation that both CapeBio and CombiMab will be bound by any outcome of the case.*fn70 Thus, the only question to decide is whether the Court can, without Synergy's consent, dismiss CapeBio and CombiMab as dispensable parties, in order to create diversity jurisdiction, and, if it can do so, whether it should or must.

This case presents a sufficiently unusual set of facts that I have been hard-pressed to find any case in any jurisdiction squarely on point. The more usual situation is one in which plaintiff has fraudulently joined parties, omitted real parties in interest, or created assignments among parties in order to manufacture diversity jurisdiction so as to gain admission to federal court.

Notwithstanding the unusual circumstances, Synergy argues that defendants' Stipulation is precisely the sort of assignment or "reverse assignment" that section 1359 prohibits.*fn71 The Supreme Court has stated that the congressional purpose behind section 1359 was to prevent "a vast quantity of ordinary contract and tort litigation [from being] channeled into the federal courts at the will of one of the parties."*fn72 The Second Circuit has similarly noted, "we give careful scrutiny to assignments which might operate to manufacture diversity jurisdiction, the reasons for which we have made abundantly clear: 'such devices, unless controlled, can provide a simple means of expanding federal diversity jurisdiction far beyond [its] purpose.'"*fn73 In view of that policy aim, the Second Circuit concluded, "we construe section 1359 broadly to bar any agreement whose 'primary aim' is to concoct federal diversity jurisdiction."*fn74

Nonetheless, the majority of cases construing section 1359 are based on assignment of rights among plaintiffs,*fn75 rather than assumption of liability among defendants, and I am not aware of any cases dealing with so-called "reverse assignment." Indeed, the Ninth Circuit case, Simpson v. Providence Washington Insurance Group,*fn76 while not controlling, provides persuasive reasons for concluding that the section 1359 analysis suggested by plaintiff is inapposite. In Simpson, an Alaska citizen filed an age discrimination suit under state law against an Alaska corporation in Alaska State court. The parent corporation informed the plaintiff that the parent, a Rhode Island corporation, was the plaintiff's true employer. The plaintiff then amended his complaint to name the parent corporation as the defendant, at which point the suit was removed by defendant on diversity grounds.

When the jurisdictional question was raised, the district court held that diversity jurisdiction was proper "based on a stipulation by the defendant that it was the 'real party in interest' and, presumably, was capable of satisfying any judgment rendered against it."*fn77 The court held that, although "assignments of [c]auses of action between parents and subsidiaries are presumptively ineffective to create diversity jurisdiction," the case before it was quite different.*fn78 It was instead "a clearly diverse defendant's accepting full liability in a case in which a nondiverse party arguably has joint liability with it."*fn79 The Ninth Circuit concluded in 1979, and I conclude today, that there appear to be "no cases suggesting that assignment of a cause of action between potential plaintiffs is equivalent to an assumption of liability by a defendant."*fn80 Thus, I find that section 1359, even when broadly construed, does not preclude me from considering whether to dismiss CapeBio and CombiMab from the suit in order to create diversity jurisdiction, where Synergy has waited more than a year before objecting to removal on the eve of trial.

It is well-established that "a plaintiff ordinarily is free to decide who shall be parties to his lawsuit."*fn81 However, "[i]f the district court determines that a party is nondiverse and dispensable, the court may sever the party and still preserve its judgment over the claims of the remaining parties."*fn82 "A district court's decision to dismiss parties under Rule 21 is circumscribed only by the 'equity and good conscience test' of Rule 19b."*fn83 I now turn to an evaluation of whether CapeBio and CombiMab are indispensable parties under Rule 19b, and whether I may, in equity and good conscience, dismiss them from the suit.

CapeBio and CombiMab are shell corporations that each act as the alter ego of Lindell.*fn84 While the Agreement was formally contracted between Synergy and CapeBio, it is clear that Lindell was the true contracting party. Under the Agreement, Lindell provided consultancy services to Synergy. Lindell is the President and main shareholder of both CapeBio and CombiMab. It is not clear to the Court at this point whether either CapeBio or CombiMab has any assets. However, the Stipulation entered into by defendants provides that all three shall be jointly and severally liable for any judgment issued by this Court, and that they will agree to be bound by any injunctive or equitable relief granted by the Court.*fn85

It is well-established that "one of several joint obligors is not typically an indispensable party to an action against the others."*fn86 Thus, in view of defendants' Stipulation, Synergy will not be prejudiced by dismissal of the corporate defendants, with regard to recovery of any judgment.

Synergy argues that it will be prejudiced by being "compelled to try the case in a vacuum because no rational jury will be able to help but wonder why CapeBio and CombiMab are not part of the case when the agreement is between Synergy and CapeBio and CombiMab is the name Lindell is using to compete with Synergy."*fn87 However, the Stipulation provides that Lindell will not seek the exclusion of otherwise admissible evidence or argument, or assert any defense, on the grounds that either CapeBio or CombiMab were dismissed from the suit.*fn88

There is no reason that Synergy cannot construct the narrative that it wishes for the jury, even without the corporate entities as defendants. Contrary to Synergy's assertion, a rational jury will understand that Lindell is the proper party defendant here, as his actions are at issue, whether he was acting through CapeBio, CombiMab, or in his individual capacity. Synergy's concern can be further alleviated by an additional trial stipulation that the Agreement is to be construed as being between Synergy and Lindell, and appropriate jury instructions along those lines. Thus, I find that the Stipulation already entered into by defendants, and the additional remedies that I have proposed, will more than alleviate any prejudice to Synergy. Furthermore, defendants have agreed through the Stipulation that they will not be prejudiced by the dismissal of CapeBio and CombiMab.*fn89 Therefore, the first 19(b) factor -- prejudice to the absent person or parties to the action -- does not pose a concern for this Court, because "any prejudice could be alleviated," as contemplated by the second 19(b) factor, pursuant to the Stipulation.*fn90

I also find that under the Stipulation, judgment in the absence of CapeBio and CombiMab will be adequate, in satisfaction of the third 19(b) factor. It will be adequate both in the sense of being "consistent with judicial economy, because the time and expense of resolving these issues in the district court . . . have already been spent," and adequate "in the sense implied by Rule 19(b)," in that plaintiff "will be able to recover complete relief" from defendants.*fn91 It is true that Synergy would also have an adequate remedy if this Court dismissed the federal suit and remanded to state court, as contemplated by the fourth 19(b) factor; however, the other three 19(b) factors, as just discussed, suggest that the corporate entities are not indispensable parties to this suit.

I am well aware that the primary, indeed the only aim, of the Stipulation is to "concoct federal diversity jurisdiction."*fn92 I am likewise aware that this action was removed mistakenly, and quite probably through outright fraud, by defendants' prior counsel. However, Synergy does not come to the current mess with clean hands either. There is simply no conceivable way that Synergy did not realize the lack of diversity when removal was first effected, more than a year ago, since the removal notice included full citizenship information about defendants and omitted mention only of Synergy's Delaware incorporation -- information well-known to Synergy's counsel. It is abundantly clear that both parties are guilty of forum-shopping and judge-shopping.

I am not eager to retain in federal court a case that should never have been removed in the first place. I am even less eager to reward the fraudulent behavior of prior defense counsel, but neither am I inclined to reward the belated objection of Synergy's counsel. Thus, since neither party has a claim on fairness at this point, I base my decision on a pragmatic concern for judicial efficiency, which is one of the primary animating principles behind the jurisdictional rules.*fn93 In view of the fact that discovery has been completed and the parties are ready for trial, and considering the Stipulation entered into by defendants, which renders the corporate entities dispensable parties, I hereby dismiss CombiMab and CapeBio as defendants. I find that this Court now has subject matter jurisdiction over the suit on the basis of diversity of citizenship.

V. CONCLUSION

For the aforementioned reasons, Synergy's motion is denied and defendants' motion is granted. The Clerk of the Court is directed to close these motions [Docket Nos. 87 and 91]. A conference is scheduled for June 17, 2011 at 3 p.m.

SO ORDERED.


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