United States District Court, S.D. New York
For Bristol-Myers Squibb & Company, Plaintiff: Henninger Simons Bullock, LEAD ATTORNEY, Lisa Robyn Plush, Richard A. Spehr, Mayer Brown LLP (NY), New York, NY.
For Matrix Laboratories Limited, N/K/A Mylan Laboratories Limited, now known as, Mylan Laboratories Limited, Defendant: Jessica Leigh Margolis, LEAD ATTORNEY, Wilson Sonsini Goodrich & Rosati(NYC), New York, NY; Michael S Sommer, LEAD ATTORNEY, Wilson, Sonsini, Goodrich & Rosati P.C., New York, NY.
OPINION & ORDER
Paul A. Engelmayer, United States District Judge.
Plaintiff Bristol-Myers Squibb Company (" BMS" ) brings this breach of contract action against defendant Matrix Laboratories Limited (" Matrix" ). Matrix moves to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6), arguing that this Court lacks personal jurisdiction over Matrix and that the Amended Complaint fails to state a claim for breach of contract. BMS opposes the motion and seeks leave to take jurisdictional discovery in the event the Court finds personal jurisdiction lacking. For the reasons that follow, the Court finds that BMS has made a prima facie showing of personal jurisdiction. However, Matrix's motion to dismiss is granted because the Amended Complaint fails to state a claim. BMS's request to take jurisdictional discovery is denied as moot.
A. Factual Background
BMS is a Delaware corporation with its principal place of business in New York. Am. Compl. ¶ 15. It sells the well-known HIVS/AIDS drug atazanavir under the brand name Reyataz. It has patents or pending patent applications related to atazanavir
in more than 50 countries. Id. ¶ 1 & n.1. Matrix is an Indian corporation with its principal place of business in India. Id. ¶ 16. It is one of the world's largest generic drug manufacturers. It is in the business of manufacturing, marketing, and selling generic pharmaceutical products throughout the United States. Id.
On April 17, 2011, BMS and Matrix entered into an " immunity from suit" agreement (the " Agreement" ), which is at the heart of this litigation. The Agreement granted Matrix the right to manufacture, distribute, and sell generic atazanavir in certain underdeveloped countries without fear of patent litigation by BMS. Id. ¶ ¶ 2, 30. BMS agreed to forego any royalties or profits associated with Matrix's sale of generic atazanavir under the Agreement, and BMS provided the manufacturing technology necessary to allow Matrix to produce the drug on its own. Id. ¶ ¶ 3-4. The purpose of the Agreement was to facilitate broad low-cost distribution of generic atazanavir to areas in dire need of HIV/AIDS treatment and prevention. Id. ¶ 2.
Significant here, the Agreement immunizes Matrix's sale of generic atazanavir only in the " Territory," which is defined to include India and 48 countries in sub-Saharan Africa. See Agreement § 1.10 & App. C. The Territory does not include Venezuela. Id.; Am. Compl. ¶ ¶ 29, 31. In November 2011, Matrix asked BMS to consent to Matrix's selling generic atazanavir in Venezuala. BMS did not consent, however, because BMS had supplied Reyataz to Venezuela for several years and had two patent applications pending in Venezuela at the time of Matrix's request. Id. ¶ ¶ 5, 31-32. Twice more in early 2012, Matrix sought BMS's consent to Matrix's engaging in such sales, but BMS again declined. Id. ¶ ¶ 6-8.
Nevertheless, in February 2012, Matrix sold a significant amount of generic atazanavir, estimated as a one-year's supply, to the Pan American Health Organization (" PAHO" ), allegedly knowing that PAHO would then distribute it in Venezuela. Id. ¶ ¶ 9, 33. This product later was shipped to the Venezuelan Ministry of Health and sold throughout Venezuela. Id. ¶ ¶ 9, 12, 35. BMS alleges that Matrix's sale to PAHO was in breach of the Agreement. BMS alleges that PAHO's ensuing sales within Venezuela caused BMS to lose a year's worth of sales of branded Reyataz to Venezuela, causing estimated damages of $15 million. Id. ¶ ¶ 14, 36.
B. Procedural History
On July 30, 2012, BMS filed the original Complaint. Dkt. 1. On March 4, 2013, after the parties stipulated to several extensions of Matrix's time to answer or otherwise respond to the Complaint, see Dkt. 4-6, Matrix filed a motion to dismiss, arguing that this Court lacks personal jurisdiction over Matrix and that the Complaint fails to state a claim for breach of contract. Dkt. 11. On April 16, 2013, BMS filed an Amended Complaint. Dkt. 17.
On May 15, 2013, Matrix filed the pending motion to dismiss, Dkt. 18; a memorandum of law in support of that motion, Dkt. 19 (" Matrix Br." ); and two declarations in support of that motion, Dkt. 20, 21 (Declaration of Rajeev Mukundan (" Mukundan Decl." )). In that motion, Matrix again argues that the Court lacks personal jurisdiction, see Matrix Br. 8-21, and that the Amended Complaint fails to state a claim for breach of contract, see id. at 21-25. On June 10, 2013, BMS filed a cross-motion for jurisdictional discovery, Dkt. 23; a memorandum of law in opposition to Matrix's motion and in support of BMS's request for jurisdictional discovery, Dkt.
(" BMS Br." ); and a declaration in opposition to Matrix's motion and in support of BMS's motion, Dkt. 24. On June 27, 2013, Matrix filed a memorandum of law, Dkt. 27 (" Matrix Reply Br." ), and a declaration, Dkt. 28, in further support of its motion and in opposition to BMS's motion. On July 8, 2013, BMS filed a memorandum of law in further support of its motion for jurisdictional discovery. Dkt. 29 (" BMS Reply Br." ).
II. Personal Jurisdiction
Matrix first moves to dismiss the Amended Complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2). See Matrix Br. 8-21; Matrix Reply Br. 4-22. BMS opposes that motion. It requests leave to take jurisdictional discovery in the event the Court finds ...