United States District Court, E.D. Virginia, Norfolk Division
GENETIC VETERINARY SCIENCES, INC., d/b/a Paw Prints Genetics, Plaintiff,
LABOKLIN GMBH & CO. KG & THE UNIVERSITY OF BERN, Defendants.
OPINION & ORDER
Coke Morgan, Jr. Senior United States District Judge
matter is before the Court pursuant to Defendants LABOklin
GmbH & Co., KG's, ("LABOklin's") and
The University of Bern's (the
"Defendants'") Motion to Dismiss Plaintiff
Genetic Veterinary Sciences, Inc. d/b/a Paw Prints
Genetics's ("PPG's" or
"Plaintiffs") Complaint ("Motion"). Doc.
29. For the reasons stated below, the Court
DENIED the Motion.
action arises from a patent regarding genotyping labrador
retrievers. See Doc. 1 ("Compl."), ¶¶
9-11. PPG is a Washington corporation with its headquarters
in Spokane, WA. Id. ¶ 2. It tests for genetic
variations and mutations known to cause diseases in dogs.
Id. ¶ 18. The test at issue detects the
presence of a mutation in the SUV39H2 gene that causes
Hereditary Nasal Parakeratosis ("HNPK"). See
Id. ¶¶ 9-11, 18-20. HNPK is a disease that
involves "development of crusts and fissures of the
nasal planum at a young age." Id. ¶ 10.
sent PPG a cease-and-desist letter accusing it of infringing
U.S. Patent No. 9, 157, 114 (the '"114
patent"). Id. ¶ 19. LABOklin is a German
company based in Bad Kissingen, Germany, that holds an
exclusive license to the ' 114 patent. l±
¶¶ 3, 17. The owner of the '114 patent, the
University, is an agency or instrumentality of Switzerland,
Id. ¶4, 7. PPG alleges "[o]n information
and belief that the University authorized LABOklin to send
the letter. Id. ¶20.
seeks a declaratory judgment that the '114 patent is
invalid. Id. ¶¶ 24-27.
filed its Complaint on February 22, 2017. Doc. 1. On May 8,
2017, the Court GRANTED Defendants an extension of time to
respond to the Complaint. Doc. 21. Defendants filed the
instant Motion to Dismiss on June 1, 2017. Doc. 29. PPG
responded on June 16, 2017. Doc. 38. Defendants replied on
June 21, 2017. Doc. 48.
Federal Rule of Civil Procedure 12(b)(1), a court may dismiss
a claim against a defendant for lack of subject matter
jurisdiction. Federal district courts are courts of limited
subject matter jurisdiction. Exxon Mobile Corp. v.
Allapattah Servs.. Inc.. 545 U.S. 546, 552 (2005)).
Accordingly, "[t]he objection that a federal court lacks
subject-matter jurisdiction... may be raised by a party, or
by a court on its own initiative, at any stage in the
litigation...." Arbaueh v. Y & H Corp.. 546
U.S. 500, 506 (2006) (citing Fed.R.Civ.P. 12(b)(1)). The
court may accept evidence on any disputed jurisdictional
facts without converting a motion to dismiss into a motion
for summary judgment. See Richmond. Fredericksburg
& Potomac R. Co. v. United States. 945 F.2d
765, 768 (4th Cir. 1991). The plaintiff has the burden of proof
on subject matter jurisdiction. Id.
Federal Rule of Civil Procedure 12(b)(2), a court may dismiss
a defendant from an action for lack of personal jurisdiction.
When the court addresses personal jurisdiction on the basis
of the complaint and the motion papers, it "must resolve
all factual disputes in the plaintiff s favor."
Nuance Commc'ns. Inc. v. Abbyy Software House,
626 F.3d 1222, 1231 (Fed. Cir. 2010) (citing Deprenyl
Animal Health. Inc. v. Univ. of Toronto Innovations
Found., 297 F.3d 1343, 1347 (Fed. Cir.
2002)). If the complaint and motion papers are
inadequate to determine whether personal jurisdiction exists,
the court should "take all necessary action" to
supplement the record with evidence necessary to make that
determination. Trintec Indus., Inc. v. Pedre Promotional
Prod., Inc., 395 F.3d 1275, 1283 (Fed. Cir. 2005).
seek dismissal of this case on three grounds: that the Court
lacks personal jurisdiction over LABOklin, that the Court
lacks subject matter jurisdiction over the University, and
that the University is immune from suit. Doc. 30 at 3-21. In
addition, Defendants argue that if the Court dismisses only
one of them, it must also dismiss the case for failure to
join all necessary and indispensable parties. Id. at
Personal Jurisdiction over LABOklin: Patent Long Arm ...