Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:08-cv-00561-UNA

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) Counterclaimants, ) ) v. ) ) ) TILLOTSON CORPORATION, ) ) Counterclaim Defendant. ) __________________________________________) ANSELL HEALTHCARE PRODUCTS, LLC, and ANSELL PROTECTIVE PRODUCTS, INC.,

CASE NO. 1:08-CV-00585-RMC

TILLOTSON CORPORATION'S MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER Counterclaim Defendant Tillotson Corporation ("Tillotson") hereby moves, pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1406, to dismiss the counterclaim filed by Counterclaimants Ansell Healthcare Products, LLC ("Ansell Healthcare") and Ansell Protective Products, Inc. ("Ansell Protective Products") (collectively, "Ansell") on the ground of improper venue. In the alternative, Tillotson hereby moves, pursuant to 28 U.S.C. § 1404(a), to transfer the case to the Northern District of Georgia. This Motion is based on the following: 1. 2. All pleadings that have been filed in this action; and The accompanying Brief in Support of Tillotson Corporation's Motion to Dismiss

for Improper Venue or in the Alternative to Transfer. A proposed Order is attached pursuant to Local Rule 7(c).

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WHEREFORE, Tillotson respectfully requests that the Court grant this Motion to Dismiss for improper venue or in the alternative transfer the case to the Northern District of Georgia. Dated: May 15th, 2008 Respectfully submitted,

/s Brian Meiners Brian Meiners Washington D.C. Bar No. 482039 KING & SPALDING LLP 1700 Pennsylvania Ave, NW Suite 200 Washington, D.C. 20006-2706 (202) 737-0500 (telephone) (202) 626-3737 (facsimile) Attorney for Tillotson Corporation

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) Counterclaimants, ) ) v. ) ) ) TILLOTSON CORPORATION, ) ) Counterclaim Defendant. ) __________________________________________) ANSELL HEALTHCARE PRODUCTS, LLC, and ANSELL PROTECTIVE PRODUCTS, INC.,

CASE NO. 1:08-CV-00585-RMC

TILLOTSON CORPORATION'S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER Ansell's 1 Amended Counterclaim fails to allege facts sufficient to establish that a "substantial part" of the events or omissions giving rise to its claims occurred in the District of Columbia. The Court should therefore dismiss Ansell's claims. See 28 U.S.C. § 1406. In the alternative, the Court should transfer this case to the Northern District of Georgia. Transfer there, rather than litigation here, best serves the interest of justice because a substantial part of the events alleged in Ansell's counterclaim occurred, if anywhere, in the Northern District of Georgia. See 28 U.S.C. § 1404(a). FACTUAL RECORD AND PROCEDURAL BACKGROUND Tillotson owns United States Patent RE 35,616 (filed Nov. 13, 1995) (published Sept. 30, 1997) ("the `616 patent"), titled "Elastomeric Covering Material and Hand Glove Made Therewith." On May 30, 2007, Tillotson filed a Section 337 Complaint 2 with the International
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Tillotson refers here to the plaintiffs collectively as "Ansell."

19 U.S.C. § 1337 and 19 C.F.R. § 210.12 authorizes complaints to be filed with the ITC for investigations into unfair practices in import trade.

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Trade Commission ("ITC") requesting that the ITC institute an investigation into the unlawful sale and importation into the United States of certain nitrile gloves that utilize the invention claimed in Tillotson's `616 patent. See In the Matter of Certain Nitrile Gloves, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-608, Fed Reg. 37052 (July 6, 2007). The ITC action named Ansell's parent company, Ansell Ltd., a respondent in that investigation. 3 See id. On September 6, 2007, Tillotson moved to amend its original complaint to include several additional respondents, including Ansell. See Order 21, In the Matter of Certain Nitrile Gloves, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-608. The ITC granted that motion on September 20, 2007. See 72 Fed. Reg. 58884 (Oct. 17, 2007). Trial is scheduled to begin in the ITC investigation on May 19, 2008. Ansell filed this Counterclaim with the ITC on April 4, 2008, and a day later removed the Counterclaim to this Court. Notice of Removal (filed April 4, 2008), ¶¶ 2, 3. 19 U.S.C. § 1337(c); 19 C.F.R. § 210.14(e). 4 Ansell's Counterclaim seeks damages from Tillotson's alleged "unfair competition" and "tortious interference with contract and/or prospective economic advantage." Counterclaim, ¶¶ 17-24. On April 24, 2008, Tillotson filed a Motion for a More Definite Statement asking this Court to order Ansell to amend its counterclaim to allege On August 16, 2007, the ITC instituted Investigation Number 337-TA-612, which also involves Tillotson's patented nitrile gloves. See In the Matter of Certain Nitrile Rubber Gloves, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-608, 72 Fed. Reg. 47072 (Aug. 22, 2007). On September 19, 2007, the ITC consolidated Investigation Number 337-TA-608 with Investigation Number 337-TA-612. See Order 19, In the Matter of Certain Nitrile Gloves, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-608, 72 Fed. Reg. 58884 (October 17, 2007). Under 19 U.S.C. § 1337(c) and 19 C.F.R. § 210.14(e), a counterclaim timely filed in the ITC can be removed to a federal district court in which the venue for any of the counterclaims raised by the respondent is appropriate. As argued below, Ansell's mistake lay in removing its counterclaim to a district that meets the venue requirements. 28 U.S.C. § 1391 ("venue appropriate in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ...").
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additional facts that would provide Tillotson with sufficient notice of the nature and material elements of Ansell's counterclaims. In apparent response, Ansell filed an Amended Counterclaim on April 28, 2008 alleging several new facts, but not identifying which, if any, of Tillotson's alleged representations or omissions occurred in this district. See id., ¶¶ 14. Significantly, this is not the first suit between these parties involving the `616 Patent. The issues raised by Ansell in this suit directly relate to litigation between the parties already pending in Northern District of Georgia (the "Georgia Litigation"). See Tillotson Corporation v. Shijiazhaung Hongray Plastic Products, Ltd. et al, Civ. A. No. 4:05-cv-00118 (N.D. Ga.). 5 Filed on June 7, 2005, the Georgia Litigation involves the alleged infringement of the `616 patent by certain gloves manufactured by Shijiazhaung Hongray Plastic Products, Ltd. ("Hongray") and sold by Darby Dental Supply Co. ("Darby Dental") and Island Dental Co., Inc. ("Island Dental"). See Complaint (Exhibit A); Second Amended Complaint (Exhibit B). Island Dental and Darby Dental counterclaimed for non-infringement and invalidity of the '616 Patent, and filed a thirdparty cross-claim against Ansell. See Answer and Counterclaim (Exhibit C); Third Party Complaint (Exhibit D). The Georgia Litigation thus involves the same issues as this Counterclaim: the infringement and validity of the `616 Patent. See Complaint, ¶ 10; Second Amended Complaint, ¶ 20; Answer and Counterclaim, ¶¶ 3-4; Third Party Complaint, ¶ 9. As such, if this case goes forward then Ansell and Tillotson will be litigating the same issues involving the same patent in two different fora - the Northern District of Georgia and the District of Columbia. For these reasons, this Court should grant Tillotson's Motion and dismiss

In addition to the Georgia Litigation, Ansell filed a complaint against Tillotson in Delaware, which also dealt with the validity of the '616 Patent (the "Delaware Litigation"). Amended Counterclaim, ¶ 11.

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the suit for improper venue or, in the interest of judicial economy and efficiency, transfer it to the Northern District of Georgia. ARGUMENT I. Summary Ansell claims that venue is proper in this action pursuant to 28 U.S.C. § 1391(a)(2). In order to establish venue under this statute, Ansell must establish that a "substantial part" of the events or omissions giving rise to a claim occurred in the district, or a "substantial part" of property that is the subject of the action is situated in this district. See 28 U.S.C. § 391(a)(2). In the instant case, Ansell fails to meet its burden of proof because it did not plead facts sufficient to support a finding that a "substantial part" of the events or omissions occurred in the District of Columbia. Therefore, pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1406, this case should be dismissed for improper venue. In the alternative, pursuant to 28 U.S.C. § 1404(a), the Court in its discretion should transfer this case to the Northern District of Georgia. The purpose behind 28 U.S.C. § 1404(a) is "to prevent the waste of `time, energy and money' and `to protect the litigants, witnesses, and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (citation omitted). In determining whether to exercise its discretion to transfer this case, the Court should balance "case specific factors which include the private interests of the parties and public interests such as efficiency and fairness." Great Yellowstone Coal. v. Bosworth, 180 F. Supp.2d 124, 127 (D.D.C. 2001) (citation omitted). In the instant case, an examination of the case specific and private interest factors supports a finding that transferring this case to the Northern District of Georgia is in the parties' and public's best interest.

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II.

The Court Should Dismiss Ansell's Counterclaim. A. Ansell must allege facts establishing venue in the District of Columbia.

Ansell bears the burden of alleging facts that demonstrate venue is proper in this Court. See Hunter v. Johanns, 517 F. Supp.2d 340, (D.D.C. 2007) ("[T]he plaintiff ... bears the burden of establishing that venue is proper.") (citations omitted); Modaressi v. Vedadi, 441 F. Supp.2d 51, 53 (D.D.C. 2006) ("Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper.") citing Freeman v. Fallin, 254 F. Supp.2d 52, 56 (D.D.C. 2003); see also Davis v. Amer. Soc. of Civil Engin., 290 F. Supp.2d 116, 121 (D.D.C. 2003) ("Although the D.C. Circuit has not identified the party who bears the burden in a challenge to venue, the majority of courts appear to place the burden on the plaintiff. 5A FED. PRAC. & PROC.2d § 1352 (noting that placing the burden on the plaintiff is consistent with the "plaintiff's obligation to institute his action in a permissible forum, both in terms of jurisdiction and venue.")). Here, Ansell has not carried that burden. B. Ansell fails to meet its burden of establishing venue is proper in this district.

Ansell fails to provide sufficient facts to support its allegations that a "substantial part" of the events giving rise to the claim occurred in the District of Columbia. In its Amended Counterclaim, Ansell alleges claims for unfair competition and tortious interference based on the following: Tillotson's alleged misrepresentations or omissions to the PTO; Tillotson's litigation to enforce the validity of the `616 Patent filed in Georgia; and publication of that litigation on the internet, all of which Ansell alleges interfered with its business and customers. See Amended Counterclaim, ¶¶ 10, 13, 14, 15.

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Ansell, however, fails to identify how the alleged misrepresentations or omissions, litigation in Georgia or elsewhere, or threats of potential litigation has caused Ansell to lose sales or incur any damage in the District of Columbia. Moreover, Ansell fails to identify any action or event where a misrepresentation or omission, litigation or threat of litigation has caused Ansell to lose a customer or prospective customer in the District of Columbia. Alleged facts based on mere unsubstantiated assertions or mere speculation are not enough to establish venue. See Davis, 290 F. Supp. 2d at 122 ("[T]he Court will not accept mere speculation of such occurrences as sufficient to establish venue pursuant to 1391(b)."); Saudi v. Northrup Grumman Corp., 273 F. Supp.2d 101, 104 (D.D.C. 2003) (speculative facts are too far removed to establish venue); Mikkilineni v. Pennsylvania., No. Civ. A. 02-1205, 2003 WL 21854754 at 7 (D.D.C. Aug. 5, 2003) (attached as Exhibit E) (unsubstantiated statements that omissions occurred within the district were conclusory in nature and did not satisfy the requirements necessary to establish venue). As a result, Ansell's unsubstantiated and conclusory allegations that fail to identify where Ansell lost business or lost customers as a result of Tillotson's alleged unfair competition or tortious interference fails to meet the "substantial part" test necessary to establish that venue is proper in the District of Columbia. Ansell also alleges that there is an ITC investigation pending in the District of Columbia involving the `616 Patent. Amended Counterclaim, ¶ 12. Ansell is correct that there is an investigation being conducted by the ITC in the District of Columbia. This one fact, however, is not enough to establish the "substantial part" of the events or omissions occurred in this district, which is necessary to establish venue under 28 U.S.C. § 1391(a)(2) or 28 U.S.C. § 1391(b)(2). See Crenshaw v. Antokol, 287 F. Supp.2d 37, 43 (D.D.C. 2003) (the fact that one defendant maintained an office in the district was not sufficient to establish that venue was proper in the

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District of Columbia). 6 Furthermore, Ansell has already had one opportunity to cure its failure to plead the facts necessary to establish venue when it filed its Amended Counterclaim. Thus, it is fair to assume that if Ansell had other facts that could establish that venue was proper in this district, then surely Ansell would have pled such facts when it filed its Amended Counterclaim. Therefore, Tillotson respectfully submits that, pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1406, this case should be dismissed for improper venue. II. If the Court decides not to dismiss this action for improper venue, then it is in the best interest of the parties and the public for the Court to exercise its discretion and transfer this case to the Northern District of Georgia. In the event that the Court does not dismiss this case for improper venue, the case should be transferred to the Northern District of Georgia where related suits are already pending. Pursuant to 28 U.S.C. § 1404, courts have broad discretion to transfer a case "for the convenience of the parties" or "in the interest of justice." See Flynn v. Veazey Constr. Corp., 310 F. Supp.2d 186 (D.D.C. 2004) ("In addition, section 1404(a) vests "discretion in the district court to adjudicate motions to transfer according to [an] individualized, case-by-case consideration of convenience and fairness.") citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 27 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612 (1964)). The specific factors the Court should consider when deciding whether to transfer a case include the following: (1) the plaintiff's choice of forum, unless the balance of convenience is

Ansell may contend that its allegation that the laws of the District of Columbia are controlling in this action supports a finding that venue is proper in the District of Columbia. See Amended Complaint, ¶ 17. Assuming that this contention is correct, this still is not enough to establish that venue is proper in the District of Columbia. See Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp.2d 1, 8 (D.D.C. 2003) ("The court, however, need not accept plaintiffs[`] legal conclusions as true.") citing James v. Booz-Allen Hamilton, Inc., 227 F. Supp.2d 16, 20 (D.D.C. 2002).

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strongly in favor of the defendants; (2) the defendant's choice of forum; (3) where the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses of the plaintiff and defendant, to the extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) the ease of access to sources of proof. See Bosworth, 180 F. Supp.2d at 127; (citing Trout Unlimited v. U.S. Dep't of Agric., 944 F.Supp. 13, 16 (D.D.C.1996) (citations omitted)). Here, these factors strongly favor transfer of this case to the Northern District of Georgia. First, Ansell is not entitled to deference in its choice of fora because the District of Columbia has "no meaningful" ties to the controversy and no particular interest to the parties or subject matter. See Greater Yellowstone Coal. v. Kempthorne, Civ. A. No. 07-2111, 2008 WL 1862298 at 3 (Apr. 24. 2008) (Exhibit F) (plaintiff afforded substantial deference in all but those cases in which the chosen forum has no meaningful ties to the controversy or parties) (citation omitted). For the reasons discussed above, Ansell has not established that its counterclaims have any ties to this District of Columbia, except for the ITC investigation being held in the district. Additionally, neither party has meaningful ties to this forum since Ansell is organized under the laws of Delaware with a principal place of business in New Jersey and Tillotson is a Massachusetts corporation. See Amended Counterclaim, ¶¶ 2-3. Second, transfer of the case to the Northern District of Georgia is in the best interest of the parties and this Court because a transfer will be more efficient and save litigation costs. The Georgia Litigation involves the same parties who are litigating the same underlying issues, the validity and infringement of the `616 Patent. Therefore, transfer to the Northern District of Georgia is in the best interest of judicial economy because the parties will not unnecessarily tie up this Court's resources with a suit that is similar in nature to existing litigation being conducted

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in another forum. In addition, transfer of the case will save the parties litigation and travel costs as well as avoid the unnecessary duplication of evidence. Third, the claims in this suit arguably arose in Georgia since a central thrust of Ansell's counterclaims for unfair competition and tortious interference involve the allegation that Tillotson is conducting "sham litigation." Specifically, Ansell has alleged that "Tillotson has had a pattern of filing district court litigation in Georgia alleging infringement of the Reissue `616 patent that are not designed to obtain adjudication on the merits of the infringement, validity and enforceability of the Reissue `616 Patent." Amended Counterclaim, ¶ 10. As a result, a court sitting in the Northern District of Georgia may be better situated to make the determination whether such litigation was conducted in good faith. Finally, and most importantly, transfer of the case is also in the best interest of the prospective witnesses because such witnesses will not have to travel to two different jurisdictions to testify regarding the validity or infringement of the `616 Patent. See Mathis v. GEO Group. Inc., 535 F. Supp.2d 83, 87 (D.D.C. 2008) ("Indeed, `the most critical factor to examine under U.S.C. § 1404(a) is the convenience of the witnesses.'"); citing Chung v. Chrysler Corp., 903 F. Supp 160, 164 (D.D.C. 1995). Accordingly, if the Court declines to dismiss this case for improper venue, then in the interest of efficiency and judicial economy we respectfully submit that the Court in its discretion should transfer this case to the Northern District of Georgia. CONCLUSION For the foregoing reasons, Tillotson's Motion to Dismiss for Improper Venue should be granted and this case dismissed for improper venue. Alternatively, the case should be transferred to the Northern District of Georgia for reasons of efficiency and judicial economy.

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Respectfully submitted this 15th day of May, 2008.

/s Brian Meiners Brian Meiners Washington D.C. Bar No. 482039 KING & SPALDING LLP 1700 Pennsylvania Ave, NW Suite 200 Washington, D.C. 20006-2706 (202) 737-0500 (telephone) (202) 626-3737 (facsimile) Attorney for Tillotson Corporation

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ANSELL HEALTHCARE PRODUCTS, LLC, and ANSELL PROTECTIVE PRODUCTS, INC., ) ) ) ) Counterclaimants, ) ) v. ) ) ) TILLOTSON CORPORATION, ) ) Counterclaim Defendant. ) __________________________________________)

CASE NO. 1:08-CV-00585-RMC

ORDER TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER Upon consideration of the Motion to Dismiss for Improper Venue or in the Alternative to Transfer filed in the above-captioned action, the applicable law, and the record in this case, it is ORDERED that the motion shall be, and hereby is, GRANTED and the case shall be [DISMISSED] or [TRANSFERRED] to the Northern District of Georgia. Dated: __________, 2008 __________________________________ Rosemary M. Collyer United States District Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) Counterclaimants, ) ) v. ) ) ) TILLOTSON CORPORATION, ) ) Counterclaim Defendant. ) __________________________________________) ANSELL HEALTHCARE PRODUCTS, LLC, and ANSELL PROTECTIVE PRODUCTS, INC.,

CASE NO. 1:08-CV-00585-RMC

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion to Dismiss for Improper Venue or in the Alternative to Transfer, and accompanying Brief in Support of the Motion, were served, via U.S. Mail, this 15th day of May, 2008 upon: David M. Morris Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Ave, N.W. Washington, D.C. 20004 /s Brian Meiners Brian Meiners Washington D.C. Bar No. 482039 KING & SPALDING LLP 1700 Pennsylvania Ave, NW Suite 200 Washington, D.C. 20006-2706 (202) 737-0500 (telephone) (202) 626-3737 (facsimile) Attorney for Tillotson Corporation

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