Free Motion for Reconsideration - District Court of Delaware - Delaware

Case 1:08-cv-00561-UNA

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANSELL HEALTHCARE PRODUCTS LLC, and ANSELL PROTECTIVE PRODUCTS INC., Counterclaimants, C.A. 1:08-CV-585-RMC v. TILLOTSON CORPORATION, Counterclaim Defendant.

COUNTERCLAIMANTS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY 30, 2008 ORDER TRANSFERRING THE CASE TO THE DISTRICT OF DELAWARE

Pursuant to Fed. R. Civ. P. 59(e), and for the reasons set forth in the accompanying memorandum of law, counterclaimants Ansell Healthcare Products LLC and Ansell Protective Products Inc. respectfully move for reconsideration of the Court's July 30, 2008 Order transferring this case to the District of Delaware. Respectfully submitted,

DATED: August 4, 2008

/s/ David M. Morris (D.C. Bar No. 432593) MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W. Washington, DC 20004 Telephone: (202) 739-5882 Facsimile: (202) 739-3001 [email protected] and

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Thomas B. Kenworthy (Admitted Pro Hac Vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, Pennsylvania 19103-2921 Telephone: (215) 963-5702 Facsimile: (215) 963-5001 [email protected] Counsel for Counterclaimants Ansell Healthcare Products LLC and Ansell Protective Products Inc.

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CERTIFICATE OF SERVICE

I, DAVID M. MORRIS, do hereby certify that on this date, I caused copies of the foregoing Counterclaimants' Motion For Reconsideration Of The Court's July 30, 2008 Order Transferring The Case To The District Of Delaware to be served upon the following individuals by Electronic and First Class Mail:

Brian Meiners, Esquire KING & SPALDING LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, DC 20006-2706 Russell Wofford, Jr., Esquire KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, Georgia 30309 Counsel for Counterclaim Defendant Tillotson Corporation

DATED:

August 4, 2008

/s/ DAVID M. MORRIS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANSELL HEALTHCARE PRODUCTS LLC, and ANSELL PROTECTIVE PRODUCTS INC., Counterclaimants, C.A. 1:08-CV-585-RMC v. TILLOTSON CORPORATION, Counterclaim Defendant.

MEMORANDUM IN SUPPORT OF COUNTERCLAIMANTS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY 30, 2008 ORDER TRANSFERRING THE CASE TO THE DISTRICT OF DELAWARE

I.

Introduction

On May 15, 2008, counterclaim defendant Tillotson Corporation ("Tillotson") moved to dismiss this action for lack of venue and moved, in the alternative, to transfer the case to the United States District Court for the Northern District of Georgia. Prior to filing that motion to transfer, Tillotson's counsel had never conferred with counterclaimants' counsel as required by LCvR7(m). Aside from the fact that Tillotson's counsel never discussed with counterclaimants' counsel the idea of transferring this case to any other district, Tillotson's motion sought, only as alternative relief, the transfer of the case to the Northern District of Georgia. In their opposition to Tillotson's motion, counterclaimants addressed both dismissal for lack of venue and transfer to the Northern District of Georgia. As there was no motion or request for

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transfer to the District of Delaware pending, counterclaimants did not address that issue. The issue of a transfer to the District of Delaware arose only in Tillotson's reply brief to which counterclaimants had no right to respond, and they were not able to do so by oral argument because their request for oral argument was not granted.

II.

Reconsideration Is Appropriate Under The Circumstances

Counterclaimants recognize that "[a] motion for reconsideration has a limited purpose" and "is not a tool to simply re-litigate issues that the Court has already decided." See Zhu v. United States, No. Civ. A. 04-1216 (RMC), 2006 WL 13240 *1 (D.D.C. Jan. 3, 2006). Counterclaimants respectfully submit that reconsideration is appropriate here because they have not had the opportunity to litigate whether this case should be transferred to the District of Delaware1/ and because there are meritorious grounds for not transferring this case to the District of Delaware.

III.

The Interests Of Justice Are Not Furthered By Transfer To The District Of Delaware

The invalid and unenforceable patent that Tillotson has been enforcing against, inter alia, counterclaimants' suppliers and customers, expires in May of 2010. Tillotson continues to utilize the risks and costs of litigation to cause suppliers, customers and potential customers of counterclaimants to enter into agreements whereby they agree not to purchase nitrile gloves from counterclaimants. The full damage to counterclaimants will be difficult to
1/

This issue was first raised in Tillotson's reply brief and it is black letter law that "[i]ssues may not be raised for the first time in a reply brief." See Rollins Environmental Services v. EPA, 937 F.2d 649, 653 n.2 (D.C. Cir. 1991). -2-

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ascertain and counterclaimants' remedies at law are not adequate. The proposed Scheduling Order jointly submitted in this Court should permit a trial of this case by the summer of 2009. See Exhibit A hereto. In its July 30 Order, the Court noted that "[t]he current status of the Delaware litigation is not revealed by the parties." [July 30 Order at 4]. The Court also noted that "[t]he parties have presented no evidence regarding the relative congestion of the respective courts but the Court has `no reason to suspect the [District of Delaware]'s docket could not accommodate this case.'" [Id. at 7]. The status of the Delaware litigation is that both cases are stayed pursuant to 28 U.S.C. § 1659(a), see Exhibit B hereto, and those stays will remain in effect until any appeals to the Federal Circuit are exhausted. In re Princo, 478 F.3d 1345, 1355 (Fed. Cir. 2007). The pending litigation in Delaware is, thus, not in a position where it could be consolidated with this action upon a transfer. Moreover, although counterclaimants' causes of action in this case arise under the laws of the District of Columbia, see Amended Counterclaim, ¶ 17, the resolution in this case of ancillary federal law issues relating to the validity and unenforceability of Tillotson's '616 patent will be binding on both Tillotson and counterclaimants in the Delaware litigation under principles of res judicata and/or collateral estoppel, and there will therefore be no duplicative trial of those issues. It is the serious crisis in the docket of the District of Delaware caused by an unusually long vacancy on the federal bench that strongly militates against transferring this case to that District. See Exhibit C hereto. The strain that already exists on the short-handed District of Delaware has necessitated the highly unusual procedure whereby for the next year, one out of every four newly-filed cases in the District of Delaware will be assigned to one of six judges

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from the United States District Court for the Eastern District of Pennsylvania. Id. That strain should not be exacerbated by the discretionary transfer of this case.

IV. Conclusion

Counterclaimants respectfully request the Court to reconsider its July 30, 2008 Order insofar as it ordered the transfer of this case to the District of Delaware, and upon reconsideration, deny Tillotson's request for transfer to the District of Delaware.

Respectfully submitted,

DATED: August 4, 2008

/s/ David M. Morris (D.C. Bar No. 432593) MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W. Washington, DC 20004 Telephone: (202) 739-5882 Facsimile: (202) 739-3001 [email protected] and Thomas B. Kenworthy (Admitted Pro Hac Vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, Pennsylvania 19103-2921 Telephone: (215) 963-5702 Facsimile: (215) 963-5001 [email protected] Counsel for Counterclaimants Ansell Healthcare Products LLC and Ansell Protective Products Inc.

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CERTIFICATE OF SERVICE

I, DAVID M. MORRIS, do hereby certify that on this date, I caused copies of the foregoing Memorandum In Support Of Counterclaimants' Motion For Reconsideration Of The Court's July 30, 2008 Order Transferring The Case To The District Of Delaware to be served upon the following individuals by Electronic and First Class Mail:

Brian Meiners, Esquire KING & SPALDING LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, DC 20006-2706 Russell Wofford, Jr., Esquire KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, Georgia 30309 Counsel for Counterclaim Defendant Tillotson Corporation

DATED:

August 4, 2008

/s/ DAVID M. MORRIS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANSELL HEALTHCARE PRODUCTS LLC, and ANSELL PROTECTIVE PRODUCTS INC., Counterclaimants, C.A. 1:08-CV-585-RMC v. TILLOTSON CORPORATION, Counterclaim Defendant.

[PROPOSED] ORDER GRANTING COUNTERCLAIMANTS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY 30, 2008 ORDER TRANSFERRING THE CASE TO THE DISTRICT OF DELAWARE THIS MATTER is before the Court on Counterclaimants' Motion for Reconsideration of the Court's July 30, 2008 Order Transferring the Case to the District of Delaware. Upon consideration of submissions of the parties, and argument of counsel, if any, it is ORDERED that counterclaimants' motion be, and hereby is, GRANTED. Upon reconsideration of Tillotson Corporation's Motion to Dismiss or in the Alternative to Transfer, Tillotson's motion to dismiss or to transfer is DENIED. It is SO ORDERED. Dated: __________________, 2008

___________________________________ Rosemary M. Collyer United States District Judge

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CERTIFICATE OF SERVICE

I, DAVID M. MORRIS, do hereby certify that on this date, I caused copies of the foregoing [Proposed] Order Granting Counterclaimants' Motion For Reconsideration Of The Court's July 30, 2008 Order Transferring The Case To The District Of Delaware to be served upon the following individuals by Electronic and First Class Mail:

Brian Meiners, Esquire KING & SPALDING LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, DC 20006-2706 Russell Wofford, Jr., Esquire KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, Georgia 30309 Counsel for Counterclaim Defendant Tillotson Corporation

DATED:

August 4, 2008

/s/ DAVID M. MORRIS