Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SYED IQBAL RAZA, M.D., Plaintiff, v. SIEMENS MEDICAL SOLUTIONS USA, INC., SIEMENS MEDICAL SOLUTIONS HEALTH SERVICES CORP., SIEMENS CORPORATION and SIEMENS AG, Defendants. : : : : : : : : : : : :

CIVIL ACTION

NO. 06-132 (JJF)

DEFENDANT SIEMENS AG'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S COMPLAINT

OF COUNSEL: Kathleen A. Mullen PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 (215) 981-4000 (Telephone) (215) 981-4750 (Fax)

Duncan Grant (DE No. 2994) Larry R. Wood, Jr. (DE No. 3262) Phillip T. Mellet (DE No. 4741) PEPPER HAMILTON LLP Hercules Plaza, Suite 5100 1313 N. Market Street P.O. Box 1709 Wilmington, DE 19899-1709 (302) 777-6500 (Telephone) (302) 421-8390 (Fax) Attorneys for Defendant Siemens AG

Dated: May 23, 2006

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TABLE OF CONTENTS Page I. II. INTRODUCTION .............................................................................................................. 1 ARGUMENT...................................................................................................................... 2 A. Plaintiff Misconstrues the Appropriate Legal Standard.......................................... 2 1. B. C. Dr. Raza Has Failed to Establish Any Basis for Jurisdictional Discovery. ................................................................................................... 2

Plaintiff Has Not Properly Served Siemens AG. .................................................... 4 Dr. Raza Has Not Demonstrated Any Basis For Jurisdiction Over Siemens AG........................................................................................................................... 5 1. 2. 3. Dr. Raza Has Failed to Make a Prima Facie Showing of Specific Jurisdiction.................................................................................................. 5 Dr. Raza Has Failed to Make a Prima Facie Showing of General Jurisdiction.................................................................................................. 6 Dr. Raza Cannot Ignore Corporate Formalities to Suggest Jurisdiction Under Agency Principles. ....................................................... 9

III.

CONCLUSION................................................................................................................. 11

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TABLE OF AUTHORITIES CASES Page(s) Ace & Company, Inc. v. Balfour Beatty PLC, 148 F. Supp. 2d 418 (D. Del. 2001)........................9 Ames v. Whitman's Chocolates, Civ. No. 91-3271, 1991 WL. 281798 (E.D. Pa. Dec. 30, 1991) ..........................................................................................................................................2 Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp. 1458 (D. Del. 1991).............................9 B.L. Poe v. Babcock International, 662 F. Supp. 4 (M.D. Pa. 1985) .............................................3 Bauman v. Daimlerchrysler AG, Civ. No. 04-00194, 2005 WL. 3157472 (N.D. Cal. Nov. 22, 2005) ....................................................................................................................................8 Bell Helicopter Textron, Inc. v. C & C Helicopter Sales, Inc., 295 F. Supp. 2d 400 (D. Del. 2002) ..................................................................................................................................5 Bowers v. Neti Technologies, Inc., 690 F. Supp. 349 (E.D. Pa. 1988) ............................................8 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)...................................................................8 C.R. Bard Inc. v. Guidant Corp., 997 F. Supp. 556 (D. Del. 1998) ....................................4, 6, 7, 9 Colonial Mortgage Service Co. v. Aerenson, 603 F. Supp. 323 (D. Del. 1985)..............................8 Hansen v. Neumueller GmbH, 163 F.R.D. 471 (D. Del. 1995) .......................................................2 Hill v. Equitable Trust Co., 562 F. Supp. 1324 (D. Del. 1983) .......................................................8 ICT Pharmaceuticals, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 147 F. Supp. 2d 268 (D. Del. 2001) ................................................................................................................9 IDS Life Insurance Co. v. SunAmerica Life Insurance Co., 136 F.3d 537 (7th Cir. 1998) .............7 Massachusetts School of Law at Andover, Inc. v. American Bar Association, 107 F.3d 1026 (3d Cir.), cert. denied, 522 U.S. 907 (1997) .....................................................................2 Murphy Brothers v. Michetti Pipe Stringing, Inc,., 526 U.S. 344 (1999)........................................4 Provident National Bank v. California Federal Savings & Loan Associate, 819 F.2d 434 (3d Cir. 1987).............................................................................................................................3

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Reach & Associate v. Dencer Imperial Rubber Industrial, 269 F. Supp. 2d 497 (D. Del. 2003) ......................................................................................................................................6, 9 Sanitec Industries Inc. v. Sanitec Worldwide, Ltd., 376 F. Supp. 2d 571 (D. Del. 2005) .....7, 8, 10 E.I. DuPont de Nemours and Company v. Rhodia Fiber and Resin Intermdiates, S.S.A., 197 F.R.D. 112 (D. Del. 2000) ..................................................................................................4 Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District Iowa, 482 U.S. 522 (1987)............................................................................................2 Soma Medical International v. Standard Chartered Bank, 196 F.3d 1292 (10th Cir. 1999) ..........8 TI Group Automotive Systems v. VDO North America LLC, Civ. No. 00-432, 2002 WL. 484838 (D. Del. March 7, 2002)................................................................................................6 Telcordia Technologies, Inc. v. Alcatel S.A., Civ. No. 04-874, 2005 WL. 1268061 (D. Del. May 27, 2005) ....................................................................................................................3 Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003)...................................................2

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I.

INTRODUCTION Dr. Raza hopes to avoid dismissal of Siemens AG by ignoring the strict corporate

formalities maintained by Siemens AG with subsidiaries directly or indirectly owned by it. Indeed, Dr. Raza fails even to address the Declaration submitted by Siemens AG confirming that Siemens AG does not do business in Delaware, that Siemens AG maintains a strict corporate policy of separateness and independence from its subsidiaries, and that it does not control its subsidiaries' activities. Instead, Dr. Raza constructs a superficial argument by pointing to the brand "Siemens" and speculating that an agency relationship may exist based on the business of that brand. This argument is without basis. Dr. Raza offers no evidence whatsoever to suggest that Siemens AG exercises control over Siemens Medical Solutions Health Services Corporation ("Health Services"), the manufacturer of Soarian®; over Siemens Medical Solutions USA, Inc. ("Medical Solutions"), the entity that markets and sells Soarian® in the United States; or over any other directly or indirectly owned subsidiary.1 Dr. Raza's Answering Brief reflects a fundamental misunderstanding of the law as it relates to his burden of proof, service upon a foreign entity under the Hague Convention, and the minimum contacts necessary to establish personal jurisdiction, including the principle that filing actions to protect intellectual property rights does not establish general jurisdiction. Siemens AG is a German company with no contacts with the state of Delaware and neither the complaint nor Dr. Raza's Answering Brief contains any averments or competent evidence

See Declaration of James T. McAvoy, attached hereto as Exhibit A. Defendant Health Services manufactures Soarian®, and Defendant Medical Solutions markets and sells Soarian® in the United States. See id ¶¶ 3-4 . Both of these Defendants have answered Dr. Raza's Amended Complaint.

1

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linking Siemens AG and Delaware. Dr. Raza's reliance on generalities, speculation and naked conclusions is insufficient as a matter of law. II. ARGUMENT A. Plaintiff Misconstrues the Appropriate Legal Standard 1. Dr. Raza Has Failed to Establish Any Basis for Jurisdictional Discovery

Jurisdictional discovery is not appropriate unless a plaintiff has asserted a prima facie basis to establish jurisdiction over the defendant, or stated differently, unless a plaintiff "presents factual allegations that suggest `with reasonable particularity' the possible existence of the requisite `contacts between [the party] and the forum state." Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003). Without such allegations, the plaintiff's jurisdictional claim is considered to be "clearly frivolous" and discovery is not permissible.2 See id.; see also Massachusetts School of Law at Andover, Inc. v. American Bar Association, 107 F.3d 1026, 1042 (3d Cir.) (affirming denial of jurisdictional discovery and noting that an unsupported allegation that the defendant "transacts business" in an area is "clearly frivolous"), cert. denied, 522 U.S. 907 (1997). In Hansen v. Neumueller GmbH, 163 F.R.D. 471, 476 (D. Del. 1995), the court explained that "a plaintiff may not rely on the bare allegations in his complaint to warrant further discovery." Id. Further, in Ames v. Whitman's Chocolates, Civ. No. 91-3271, 1991 WL 281798, at *3 (E.D. Pa. Dec. 30, 1991)3, the court rejected plaintiff's request for jurisdictional discovery, noting that "since [plaintiff] has not contradicted the [defendant] parent corporation's

The Supreme Court has specifically cautioned lower courts to "exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position." Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern Dist. Iowa, 482 U.S. 522, 546 (1987).
3

2

All unreported cases are attached hereto at Exhibit C.

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affidavit evidence, this Court is persuaded that it would be inappropriate to allow plaintiff to conduct a fishing expedition to construct a basis for jurisdiction." See also B.L. Poe v. Babcock Int'l, 662 F. Supp. 4, 7 (M.D. Pa. 1985) ("Since plaintiff has met defendants' affidavit evidence with mere speculation, plaintiff's request for an opportunity to conduct discovery on the matter must be denied"). Judge Sleet recently denied a plaintiff's request for jurisdictional discovery directed to a foreign parent where, like here, the plaintiff's allegations of jurisdiction were insufficient as a matter of law. See Telcordia Technologies, Inc. v. Alcatel S.A., Civ. No. 04-874, 2005 WL 1268061, at ** 8-9 (D. Del. May 27, 2005). In Telcordia, the plaintiff brought a patent infringement action against Alcatel USA, a Delaware corporation, as well as that company's foreign parent Alcatel S.A., a French corporation. Id. at *1. In response to Alcatel S.A.'s motion to dismiss for lack of personal jurisdiction, the plaintiff attempted to base jurisdiction on an agency theory and requested jurisdictional discovery. Id. at *3. Judge Sleet rejected the plaintiff's argument that the parent and subsidiary "effectively operated as one," and further rejected plaintiff's request to conduct jurisdictional discovery, explaining that, like here, plaintiff's allegations were insufficient as a matter of law. Id. at ** 3-4, *8-9. In the face of the plaintiff's legally insufficient agency allegations, the Court concluded that "granting Telcordia's request for jurisdictional discovery would amount to allowing it to conduct a fishing expedition in order to form a basis for jurisdiction." Id. at *9. Dr. Raza's request for jurisdictional discovery on Siemens AG is similarly without merit and based on incorrect assumptions. Dr. Raza's complaint is devoid of any assertions of jurisdiction, let alone assertions that meet the Third Circuit's requirement that such allegations suggest the existence of jurisdiction with "reasonable particularity." See Provident

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National Bank v. California Federal Savings & Loan Assoc., 819 F.2d 434, 437 (3d Cir. 1987). Moreover, Dr. Raza has met Siemens AG's declaration evidence with only speculation and innuendo based only on the use of the "Siemens" brand name. Delaware courts have rejected such attempts. See C.R. Bard Inc. v. Guidant Corp., 997 F.Supp. 556, 561 (D. Del. 1998) (rejecting agency and alter ego theory where subsidiary used parent's brand name).4 As such, Dr. Raza has failed to carry his burden of establishing by a preponderance of the evidence that minimum contacts have occurred sufficient to confer personal jurisdiction over Siemens AG, and further, the legal insufficiency of his allegations demonstrate that jurisdictional discovery is not appropriate. B. Plaintiff Has Not Properly Served Siemens AG Dr. Raza attempts to create an argument that he properly accomplished service on Siemens AG merely by notifying Siemens AG of the action by mail. See DI 20 at 15-17. Despite his efforts, it is clear that "[t]he Hague Convention applies where civil litigants have cause to transmit judicial or extrajudicial documents internationally." See E.I DuPont de Nemours and Company v. Rhodia Fiber and Resin Intermdiates, S.S.A., 197 F.R.D. 112, 123 (D. Del. 2000). Dr. Raza does not dispute this well settled principle. Unlike the Quinn v. Keinicke case cited by Dr. Raza (where the foreign state did not object to receiving judicial documents by postal channels), the Federal Republic of Germany has expressly objected to the transmittal of

Despite Dr. Raza's attempt to impugn Siemens AG for failing to respond to his discovery requests even though he has not yet served Siemens AG under the Hague Convention and the Federal Rules of Civil Procedure prohibit discovery at this time absent a court order, Dr. Raza cites no legal authority to fault Siemens AG for protecting its interests, nor could he, as such discovery is inappropriate. See Murphy Bros. v. Michetti Pipe Stringing, Inc,. 526 U.S. 344, 347 (1999) (stating it is a "bedrock principle that an individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.").

4

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judicial documents by mail. See DI 16 at 4-7. As such, Dr. Raza has not properly served Siemens AG. Dr. Raza tacitly admits the insufficiency of service by stating that he is "now in the process of serving Siemens AG through the Central Authority in Germany, in accordance with the Hague Convention." See DI 20, at 16. Thus, this Court should dismiss this action against Siemens AG given that Dr. Raza has yet to, and indeed may never, properly serve Siemens AG as required under the Hague Convention. C. Dr. Raza Has Not Demonstrated Any Basis For Jurisdiction Over Siemens AG 1. Dr. Raza Has Failed to Make a Prima Facie Showing of Specific Jurisdiction Dr. Raza claims that this Court can exercise specific jurisdiction over Siemens AG on the basis of Section 3104(c)(1), but admits, as he must, that, for purposes of specific jurisdiction, a nexus between the cause of action and the conduct allegedly establishing personal jurisdiction must exist. See DI 20, at 8. Indeed, for purposes of specific jurisdiction under Section 3104(c)(1), the acts alleged to support jurisdiction must be directed at Delaware residents and the protections of Delaware laws. Bell Helicopter Textron, Inc. v. C & C Helicopter Sales, Inc., 295 F.Supp.2d 400, 405 (D. Del. 2002). Dr. Raza has not established, and indeed, cannot establish, a prima facie showing of specific jurisdiction under Section 3104(c)(1). First, Dr. Raza, a Pakistani national, complains about an alleged misappropriation of trade secrets that purportedly occurred in Pakistan. As such, he has not shown any jurisdictional act directed toward Delaware residents. Second, Dr. Raza incorrectly relies on patent infringement cases which have based jurisdiction on a non-resident's use of an established distribution channel to market and sell its allegedly infringing products into Delaware. See DI 20 at 9. Unlike the defendants in the -5WL: #188951 v1 (41SN01!.DOC)

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cases cited by Dr. Raza, Siemens AG does not manufacture Soarian®. See Ex. A ¶ 3; see also C.R. Bard, 997 F.Supp. at 561 (rejecting jurisdiction of non-resident parent on basis that it engaged in no production activities with respect to the product at issue).5 Accordingly, no basis exists for the exercise of specific jurisdiction over Siemens AG. 2. Dr. Raza Has Failed to Make a Prima Facie Showing of General Jurisdiction Dr. Raza also asserts that this Court can exercise general jurisdiction over Siemens AG on the basis of Section 3104(c)(4). The exercise of general jurisdiction is appropriate only where a non-resident defendant engages in a "persistent course of conduct" in Delaware. C.R. Bard, 997 F.Supp. at 561. As this Court explained in Reach & Assoc. v. Dencer Imperial Rubber Indus., 269 F.Supp.2d 497, 505 (D. Del. 2003), "[w]hile seemingly broad, the standard for general jurisdiction is high in practice and not often met." Id. Dr. Raza bases his assertion of general jurisdiction on three categories, none of which supports the exercise of general jurisdiction. First, Dr. Raza argues that jurisdiction is proper where a defendant uses distribution channels "to sell its products in Delaware." See DI 20 at 10 (emphasis supplied). As explained above, Soarian® is not manufactured by Siemens AG and Siemens AG does not do business in the state of Delaware. Thus, Dr. Raza has failed to establish that Siemens AG engages in a "persistent course of conduct" in Delaware as required by Section 3104(c)(4).

Dr. Raza's contention that Siemens AG's report must include Soarian® sales does nothing to advance his position on purported agency liability. See TI Group Automotive Systems v. VDO North America LLC, Civ. No. 00-432, 2002 WL 484838, at *3 (D. Del. March 7, 2002) (dismissing claim that a parent's inclusion of a subsidiary's financial information in annual report supports agency theory of liability on parent and stating that parent's "annual report would necessarily include financial information about its subsidiaries").

5

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Second, Dr. Raza speculates that Siemens AG sells other products in Delaware, including consumer household appliances, such as washers and dryers. See DI 20, at 10. That assertion is incorrect. Siemens AG does not manufacture the various consumer household appliances described in Dr. Raza's Answering Brief. See Declaration of Erhard Meitinger dated May 19, 2006, attached hereto as Exhibit B, ¶ 5. The entity that manufacturers those products, BSH Bosch und Siemens Hausgeräte GmbH, merely licenses the "Siemens" brand name for some of its products. Id. Dr. Raza is hoping to establish jurisdiction over Siemens AG, not based on Siemens AG's minimum contacts with the forum, but based on a superficial use of the "Siemens" brand name. The law is clear, however, that use of a parent's brand name, even in the context of a parent and subsidiary (which this is not) is insufficient as a matter of law to confer general jurisdiction on the parent. See C.R. Bard, 997 F.Supp. at 561 ("the court finds that [subsidiary's] use of [parent's] name does not justify the exercise of jurisdiction" over parent under Section 3104(c)(4)).6 Finally, Dr. Raza cites to four cases in which Siemens AG was involved (two as a plaintiff and two as a defendant) and argues that its presence in those actions alone constitutes a sufficient basis to confer general jurisdiction. The law, however, does not support Dr. Raza's argument. The cases cited by Dr. Raza do not hold that mere participation in litigation in the forum confers general jurisdiction on a non-resident. Rather, those cases found jurisdiction on Although mentioning a website, Dr. Raza does not rely on that to establish jurisdiction, nor could he. Several courts have held that the mere maintenance of a website cannot confer general jurisdiction upon a non-resident. See Sanitec Industries Inc. v. Sanitec Worldwide, Ltd., 376 F.Supp.2d 571, 574 (D. Del. 2005); C.R. Bard, 997 F.Supp. at 561; see also IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 540 (7th Cir. 1998) (Posner, C.J.) (holding that a parent's advertising of its subsidiaries' products and services is insufficient to confer personal jurisdiction and noting that "if these relations between [defendant] and Illinois are sufficient to bring the company within the jurisdiction of the Illinois courts, then virtually every large company is within that jurisdiction").
6

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the basis of substantial contacts with Delaware reflecting a persistent course of conduct in the state ­ contacts that are simply not present in this case. In Hill v. Equitable Trust Co., 562 F.Supp. 1324, 1330-31 (D. Del. 1983), the court exercised jurisdiction on the basis of defendant's "substantial contacts with Delaware," including the ownership of several bank accounts and participation in commercial loans in the state. Similarly, in Colonial Mortgage Service Co. v. Aerenson, 603 F.Supp. 323, 327 (D. Del. 1985), the Court exercised general jurisdiction based on defendant's entering 200 loan agreements with Delaware mortgagors. Contrary to Dr. Raza's position, participation in lawsuits either as a plaintiff or as a defendant is not sufficient as a matter of law to confer general jurisdiction over a defendant. Indeed, courts routinely conclude that filing an action to protect a property interest does not subject that litigant to general jurisdiction. In Sanitec Industries, this Court held: "[T]he Court concludes that filing UCC financing statements and appearing in state court are not the kinds of activities that constitute the kind of `substantial and continuous local activity' necessary to subject [defendant] to general personal jurisdiction." 376 F. Supp. 2d at 574. See also Soma Medical International v. Standard Chartered Bank, 196 F.3d 1292, 1296 (10th Cir. 1999) (filing of five civil cases insufficient to show the "substantial and continuous local activity necessary to subject defendant to general jurisdiction"); Bauman v. Daimlerchrysler AG, Civ. No. 04-00194, 2005 WL 3157472, at **8-9 (N.D. Cal. Nov. 22, 2005) (rejecting argument that foreign parent's pursuit of litigation in California, including suits to protect its patent rights, was sufficient to subject it to general jurisdiction there).7

Similarly, courts conclude that defending claims will not subject the litigant to general jurisdiction. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 470, n. 11 (1985) (defendant conceded personal jurisdiction for purposes of litigating trademark claim, but was permitted to litigate issue of personal jurisdiction for breach of contract claim); Bowers v. Neti
(continued...)

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Dr. Raza has failed to demonstrate any competent evidence to establish that substantial, continuous or persistent contacts exist between Siemens AG and the state of Delaware. To the contrary, Siemens AG does not conduct business in Delaware, it engages in no sales or marketing activities in Delaware, it owns no real or personal property in Delaware, it has no employees in Delaware and it is not obliged to pay any taxes in Delaware. See See DI 15, Ex. A, ¶ 3. In short, Siemens AG lacks any presence in Delaware to satisfy the "high standard of a `persistent course of conduct' required" under Section 3104(c)(4). Reach & Assoc., 269 F. Supp. 2d at 505. 3. Dr. Raza Cannot Ignore Corporate Formalities to Suggest Jurisdiction Under Agency Principles It is firmly established that the mere ownership of a Delaware subsidiary cannot confer jurisdiction over a over a non-Delaware parent. See Ace & Company, Inc. v. Balfour Beatty PLC, 148 F.Supp.2d 418, 422-23 (D. Del. 2001); see also ICT Pharmaceuticals, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 147 F.Supp.2d 268, 274 (D. Del. 2001) ("The court will not lightly set aside corporate formalities in order to hail a foreign corporation into this judicial district."). To establish personal jurisdiction over a non-resident defendant on an agency theory, a court must focus on the arrangement between the parent and subsidiary, the authority given in that arrangement, and the relevance of that arrangement to the plaintiff's claim. C.R. Bard, Inc. v. Guidant Corp., 997 F.Supp. 556, 560 (D. Del. 1998). "The agency theory . . . examines the degree of control which the parent exercises over the subsidiary." Applied
________________________ (continued...)

Technologies, Inc., 690 F. Supp. 349, 356-57 (E.D. Pa. 1988) (no personal jurisdiction over defendants who earlier consented to jurisdiction in a separate action).

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Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1463 (D. Del. 1991). Under the agency theory, "only the precise conduct shown to be instigated by the parent is attributed to the parent." Id. at 1464. Here, Dr. Raza does not assert personal jurisdiction under the alter ego theory (and certainly could not). Instead, in addition to arguing (incorrectly, as explained above) that jurisdiction exists over Siemens AG, a German company, in its own right, he also argues that jurisdiction exists over Siemens AG under an agency theory. However, Dr. Raza is wrong and fails to support his arguments with any competent evidence. See Sanitec Industries, Inc., 376 F. Supp.2d at 573 (plaintiff has burden to establish minimum contacts by preponderance of the evidence, and "must sustain its burden of proof . . . through sworn affidavits or other competent evidence"). Indeed, reflecting the lack of any support for his position, Dr. Raza ignores the declaration of Erhard Meitinger that belies Dr. Raza's bare conclusions. Siemens AG has demonstrated that, in addition to the fact that Siemens AG does not do any business or have any business presence in Delaware, Siemens AG is a separate entity from subsidiaries directly or indirectly owned by it. All corporate formalities are observed, and Siemens AG and its various subsidiaries: have separate officers and independent boards of directors; conduct separate board meetings; maintain separate minutes; maintain separate books and records; and have separate headquarters and office space. See DI 15, Ex. A; see also Ex. B, ¶¶ 3-4. Further, all transactions between Siemens AG and its various subsidiaries "are conducted on an `arms-length' basis." DI 15, Ex. A, ¶ 6. Siemens AG does not direct the activities of its various subsidiaries, including Health Services and Medical Solutions. See id., ¶ 5; Ex. A ¶¶ 3-4.

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Dr. Raza has not alleged, and indeed, cannot allege as it is inconsistent with the facts, that Siemens AG controls the activities of Health Services or Medical Solutions. Similarly, Dr. Raza has failed to allege that Siemens AG "instigated" any of the actions which Dr. Raza now tries to attribute to Siemens AG. Accordingly, Dr. Raza's attempts to rest personal jurisdiction on agency concepts must also be rejected. See Ace & Co, Inc., 148 F. Supp. at 425 (now Chief Judge Robinson concluding that the facts do not justify an assertion of personal jurisdiction under the agency theory). III. CONCLUSION For the reasons set forth above and for all of the reasons contained in Siemens AG's Opening Brief, this Court should grant Siemens AG's Motion to Dismiss Plaintiff's Complaint against it with prejudice. Respectfully submitted,

OF COUNSEL: Kathleen A. Mullen PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 (215) 981-4000 (Telephone) (215) 981-4750 (Fax)

/s/ Larry R. Wood, Jr. M. Duncan Grant (DE No. 2994) Larry R. Wood, Jr. (DE No. 3262) Phillip T. Mellet (DE No. 4741) PEPPER HAMILTON LLP Hercules Plaza, Suite 5100 1313 N. Market Street P.O. Box 1709 Wilmington, DE 19899-1709 (302) 777-6500 (Telephone) (302) 421-8390 (Fax) Attorneys for Defendant Siemens AG

Dated: May 23, 2006

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CERTIFICATE OF SERVICE I, Phillip T. Mellet, hereby certify that on this 23rd day of May, 2006, I caused to be served the foregoing Defendant Siemens AG's Reply Brief in support of its Motion to Dismiss Plaintiff's Complaint via CM/ECF and hand delivery upon the following: Martin S. Lessner, Esquire Young, Conaway Startgatt & Taylor, LLP The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19899 [email protected]

/s/ Phillip T. Mellet Phillip T. Mellet (DE No. 4741)

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