Free Reply to Response to Motion - 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. ) CASE NO. 1:08-CV-00585-RMC ) ) TILLOTSON CORPORATION, ) ) Counterclaim Defendant. ) __________________________________________) TILLOTSON CORPORATION'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS FOR IMPROPER VENUE, OR IN THE ALTERNATIVE TO TRANSFER Introduction Ansell has provided no basis for denying Tillotson's motion to dismiss. The impropervenue defense was unavailable to Tillotson until after Tillotson's motion for more definite statement prompted Ansell to file its Amended Counterclaim; Tillotson could not have waived that defense before then. Because Ansell has adduced no facts suggesting that the ITC proceeding has directly given rise to Ansell's Counterclaim, venue is improper in this Court. Finally, if venue is proper anywhere, it is proper in the District of Delaware or the Northern District of Georgia, where previously filed lawsuits involve many, if not all, of the same issues that Ansell raises here. The Court should therefore dismiss Ansell's Counterclaim, or in the alternative transfer it to one of the fora that Tillotson proposes. Argument I. Tillotson Has Not Waived Its Right to Challenge Venue. A. A Defendant Cannot Waive a Defense Unavailable to It at the Time. ANSELL HEALTHCARE PRODUCTS, LLC, and ANSELL PROTECTIVE PRODUCTS, INC.,

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The Federal Rules of Civil Procedure prohibit filing a second Rule 12 motion "raising a defense or objection that was available to the party but omitted from its earlier motion." Fed. R. Civ. P. 12(g)(2) (emphasis added). As the cases cited by Ansell describe, defendants must file motions to dismiss with the first responsive pleading if the facts supporting those motions are either alleged in the Complaint or available to the defendant immediately. See, e.g., Martin v. Delaware Law School of Widener University, 625 F. Supp. 1288, 1296 (D. Del. 1985). See also, Dehaemers v. Wynne, 522 F. Supp. 2d 240, 245 (D.D.C. 2007). Defendants do not, however, waive defenses that are "available ... but omitted" from the initial pleading. See Fed. R. Civ. P. 12(h); Candido v. District of Columbia, 242 F.R.D. 151, 161 (D.D.C. 2007) (considering motion to dismiss because no waiver where defense of insufficient service not "then available"); Flock v. Scripto-Tokai Corp., No. H-00-3794, 2001 U.S. Dist. LEXIS 23881, *9 (S.D. Tex. June 25, 2001) (considering motion to dismiss filed after answer) (Exh. H); Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983) (district court properly considered motion to dismiss for lack of personal jurisdiction after answer). Because motions for a more definite statement often signal that other defenses are currently unavailable, such motions do not create waiver under Rule 12(h). Printing Plate Supply Co. v. Curtis Publishing Co., 278 F. Supp. 642, 644 (E.D. Pa. 1968) (considering motion to dismiss filed after motion for more definite statement "because logically other Rule 12 motions cannot be raised until the movant knows what the claims against him are.") For this reason courts often advise that where a defendant cannot respond to a complaint, he should move for a more definite statement first, and for dismissal later. See Hilska v. Jones, 217 F.R.D. 16 (D.D.C. 2003) ("when a defendant is unclear about the meaning of a particular allegation in the complaint, the proper course of action is not to move to dismiss but to move for a more definite

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statement"); Rizzo v. Ammond, 182 F. Supp 456, 469 (D.N.J. 1960) (granting motion to dismiss and finding no waiver because complaint "justified the defendants in seeking a more definite statement before determining the defenses which they would raise or upon other appropriate action which they might take against the claims so clarified."). B. The Improper Venue Defense was Not Available to Tillotson at the Time it Moved for a More Definite Statement.

Ansell's initial Counterclaim alleged that Tillotson has: "had a pattern of filing district court lawsuits" alleging infringement in bad faith -- but not saying where; "also directly asserted counterclaims of infringement .. in declaratory judgment actions" -- but not saying where; "publicized its litigations ... to induce customers not to purchase gloves from its competitors" like Ansell -- but not saying which customers were affected, which lawsuits Tillotson supposedly publicized or where the publicity took place; and "caused at least one of Ansell Healthcare's suppliers [unnecessarily] to enter into a license" -- but not saying which supplier. Complaint, ¶¶ 10, 11, 13, 15. Because Tillotson believed it had a number of defenses and bases for dismissal that depended on which law governed Ansell's claims, and Ansell had not alleged facts sufficient to determine the choice of law, Tillotson moved for a more definite statement. Motion for More Definite Statement ("Rule 12(e) Motion") at 1 (filed April 23, 2008) (describing difficulty of determining "what bases for a Rule 12 motion are available" to Tillotson). The uncertainties that clouded the choice-of-law issue also inhibited Tillotson's ability to determine the proper venue. The choice of law, for example, depends in part on "where the conduct causing the injury occurred." Drs. Goover, Christie & Merritt v. Burke, 917 A.2d 1110, 1117 (D.C. 2007). Venue for Ansell's claims depends on a closely related question: where a "substantial part" of the events "giving rise to the claim occurred." 28 U.S.C. § 391(a)(2).

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Tillotson's inability to determine the choice of law thus also kept it from determining the proper venue. Ansell did not oppose Tillotson's motion for more definite statement. Instead, Ansell amended its Counterclaim, this time alleging where the "pattern of filing district court lawsuits" had occurred, where Ansell had brought its counterclaims and where Tillotson had allegedly publicized "some of its litigations." Amended Counterclaim (filed April 28, 2008), ¶¶ 10-12, 15. Significantly, given its additional allegation that its claims "arise under the laws of the District of Columbia," id., ¶ 17, Ansell did not allege the loss of any sales, any customers, any contracts, any prospective contracts, or any suppliers in Washington, DC. What Ansell said in its Amended Counterclaim -- and what it did not say -- also gave Tillotson the basis to raise an improper-venue defense. For the first time, Ansell's Amended Counterclaim identified that the "substantial part" of the events "giving rise to [its] claims" occurred outside Washington, DC: in Georgia, in Delaware and in other unidentified locations. Because Tillotson's venue defense was unavailable until Ansell amended its Counterclaim, Tillotson's earlier motion did not waive the later-developed defense. See Flock, 2001 U.S. Dist. LEXIS 23881 at *9. II. Nothing Suggests that a Substantial Part of the Events Giving Rise to Ansell's Claims Occurred in the District of Columbia. Ansell must establish that a "substantial part of the events...giving rise to the claim" occurred in this district. 28 U.S.C. § 1391(a)(2); see also Michilin Prosperity Co. LTD v. Dudas, No. 06-1471, 2007 U.S. Dist. LEXIS 55216, at *2 (D.D.C. July 31, 2007) (Exh. I). In trying to meet that burden, Ansell focuses the Court on different issues: whether a substantial part of the events alleged in its counterclaim occurred here, or whether Ansell has been injured by events occurring here. Ansell thus describes its allegations of "tortious acts in this and other districts,"

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and its injury from "defending against Tillotson's knowing pursuit of invalid and unenforceable claims" brought here. Opposition to Motion to Dismiss ("Opposition") at 9-10. Venue depends, however, on a different issue: where a "substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. § 1391(a)(2). No matter how substantial an alleged event may be as an independent matter, it must directly give rise to the Ansell's claim to determine venue. Abramoff v. Shake Consulting, LLC, 288 F. Supp. 2d 1, 5 (D.D.C. 2003) (concluding venue improper because the "substantial part" of the events alleged in the District of Columbia did not directly give rise to plaintiff's claim); Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995) (affirming dismissal of case for improper venue because manufacture of product, although necessary event to infringement, did not constitute a substantial part of events giving rise to the claim). Ansell sues Tillotson for unfair competition and tortious interference with contract or prospective business advantage. Amended Counterclaim, ¶¶ 18-25. The Court has before it no evidence that the only act occurring in this jurisdiction -- the filing of an allegedly bad-faith ITC action -- directly gave rise to these claims. Ansell does not allege that Tillotson publicized the ITC action. Ansell does not allege that potential customers declined to buy nitrile gloves from it because of the ITC action, as opposed to earlier-filed district court lawsuits.1 The only harm that Ansell has alleged directly from the ITC proceeding -- the cost of defending it -- lies outside the
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District court actions, of course, create much greater incentives among potential customers not to buy the allegedly infringing products. Purchasers of such products risk being named as a defendant in district court infringement actions, because a purchase can constitute an act of infringement. See 35 U.S.C. § 271(g) ("[w]hoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer.") Purchasers of already imported products cannot, however, be named in ITC proceedings. See 19 U.S.C. § 1337(d)(1) ("If the Commission determines...a violation of this section, it shall direct that the articles concerned, imported by any person violation the provision of this section, be excluded from entry into the United States."). 5

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remedies offered by the claims it asserts here. See, e.g., Gov't Rels. Inc. v. Howe, 2007 U.S. Dist. LEXIS 4952, *31 (D.D.C. Jan. 24, 2007) (granting motion to dismiss tortious interference with contract claim for failing to allege any actual loss of clients) (Exh. J). Nothing alleged in the Amended Counterclaim or adduced in Ansell's Opposition suggests that the ITC action "gives rise to" the claims that Ansell asserts. III. Venue Under 28 U.S.C. §1391(a)(1) Was Not Asserted in the Counterclaim. Ansell's Opposition asserts a second basis for venue, one that it claims Tillotson has "completely ignore[d]," and failed to challenge "in either of its Rule 12 motions." Opposition at 12 (emphasis in original). Tillotson's supposed concession of personal jurisdiction, according to Ansell, precludes further challenge to Ansell's other basis for personal jurisdiction: 28 U.S.C. § 1391(a)(1). Ansell, however, has never alleged this statute as the basis for venue in this Court. Both of its Counterclaims allege only 13 U.S.C. § 1391(a)(2). Amended Counterclaim, ¶ 7; Counterclaim, ¶ 7. Because Tillotson could not have waived a challenge to a venue assertion that Ansell has never made, the Court should not consider Ansell's argument on this point. IV. Transfer to One of the Currently Pending Cases Involving these Issues is Appropriate. If this Court does not dismiss Ansell's counterclaim, Tillotson, at a minimum, has established that transfer is appropriate because a substantial part of the events giving rise to Ansell's claims did not occur in the District of Columbia. Abramoff, 288 F. Supp. 2d at 5. The "convenience of the parties" and "the interest of justice" both require transfer -- either to the Northern District of Georgia or to the District of Delaware, where almost two years ago Ansell filed its declaratory judgment action against Tillotson raising the same issues. See Ansell counterclaimant's Delaware Complaints (Exh. K); 28 U.S.C. § 1404(a).

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This counterclaim is the second litigation the Ansell counterclaimants have filed against Tillotson in two different jurisdictions -- Delaware and the District of Columbia. Ansell's Delaware and District of Columbia actions, and Tillotson's Georgia action, arise from the same nucleus of facts, involve the same witnesses, and would use the same documents or sources of proof. Litigating those issues in two or three different for a offers no benefit in convenience to the parties, in efficiency and in time- or cost-savings. Moreover, the only tie to this jurisdiction -- the ITC hearing -- grows weaker with each passing day, since the hearing in that proceeding concluded on May 30, 2008. The Court should therefore transfer this case. 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 or the District of Delaware for reasons of efficiency and judicial economy. Tillotson believes that oral argument is unnecessary on its Motion, and opposes Ansell's request under L. Civ. R. 78.1. Respectfully submitted this 6th day of June, 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

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 on Counsel of Record via Court's CM/ECF Electronic Filing.

/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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