The opinion of the court was delivered by: William H. Walls, U.S.D.J.
This document relates to: 98-159 (WHW) 98-1412 (WHW)
IVAX Corporation, Baker Norton Pharmaceuticals, Inc., and Zenith Goldline Pharmaceuticals (collectively "IVAX") move for leave to amend their counterclaims against Bristol-Myers Squibb. Having heard oral argument on February 14, 2000, and for reasons expressed in this opinion, the court denies the motion.
On January 4, 2000, this court granted the motion by plaintiff- counterclaim defendant Bristol-Myers Squibb Company ("Bristol") to dismiss and strike all counterclaims of Baker Norton Pharmaceuticals and portions of counterclaims by Zenith Goldline Pharmaceuticals, to the extent they related to allegations of conduct immunized by the Noerr- Pennington doctrine. Bristol-Myers Squibb Co. v. IVAX Corporation and Zenith Goldline Pharmaceuticals, Inc., 2000 WL 4864 (D.N.J. Jan. 4, 2000). The excised counterclaims still contain the following allegations: 1) Bristol committed state law unfair competition by obtaining patents through fraud and inequitable conduct and asserting invalid patents against Zenith Goldline (Countercl. at 34-36); 2) Bristol monopolized and attempted to monopolize the relevant market in violation of Section 2 of the Sherman Act, by securing patents through inequitable conduct and fraud on the PTO, enforcing patents that it knows are invalid, and bringing litigation to exclude Zenith Goldline from the market, with resulting injury to competition (Countercl. at 37- 40); and 3) Zenith Goldline moves for declaratory judgment that the `803 and `537 patents are invalid and unenforceable (Countercl. at 40).
The January 4 opinion removed many of counterclaimants' allegations from issue. First, the court granted Bristol's motion to dismiss the Sherman Act allegations to the extent that Bristol is immunized under the Noerr-Pennington principle that antitrust liability cannot flow from valid efforts to obtain government action. See Bristol-Myers Squibb v. IVAX, 2000 WL 4864, at *2-9. The court reasoned:
Even taken at face value, as required at this stage, the counterclaimants' allegations of tortious conduct are insufficient to remove Bristol's actions from the ambit of the Noerr-Pennington doctrine. To survive this motion to dismiss, the counterclaimants must have set forth sufficient information for one to infer that their allegations are supportable; they may not rely on bald assertions or legal conclusions made in the guise of factual allegations. . . . Here, Baker Norton and Zenith Goldline have provided the court and their adversary with no information concerning the circumstances under which Bristol purportedly obtained confidential business information. Likewise, they have failed to allege the requisite elements of any purported misrepresentation claim. Cf. Fed. R. Civ. P. 9(b). The counterclaimants have fallen short of the pleading standards mandated by the federal rules: this court is faced with a request to override Bristol's immunity when it is unable to discern any misconduct. Id. at *6.
Yet the court found that even "[i]f misconduct were evident, counterclaimants' argument would remain inadequate" pursuant to Noerr and Supreme Court and Third Circuit precedent that immunity is not disturbed by a defendant's deliberate deception of the public through a misleading publicity campaign, "improper or even unlawful lobbying techniques," or the dissemination of false information during a lobbying campaign that includes "bribery, deceit or other wrongful conduct that may have affected the decision making process." See, e.g., Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hospital, 185 F.3d 154 (3rd Cir. 1999).
Next, the court concluded that certain allegations of unfair competition should be dismissed pursuant to Brownsville Golden Age Nursing Home v. Wells, 839 F.2d 155 (3rd Cir. 1988), which ruled that liability for state-law causes of action cannot rest upon allegations of conduct immunized from the federal antitrust laws. Employing the same reasoning, the court dismissed the promissory estoppel counterclaims because they rested on allegations that Bristol made numerous misleading statements during congressional hearings and "even misrepresentations made to induce government action are protected" under Noerr-Pennington. Id. at *10-11. Finally, the court dismissed Baker Norton's declaratory judgment counterclaim, which removed non-defendant Baker Norton from this litigation by dismissing all of its counterclaims.
Now, the IVAX counterclaimants have accepted the court's invitation to submit a copy of proposed amended counterclaims so that the court may determine whether the proposed amendment might resuscitate the pleadings or be futile. 2000 WL 4864, at *15. Bristol opposes the motion.
1. Standard to File Amended Pleadings
Fed. R. Civ. P. 15(a) directs parties to apply to the court for permission to amend their pleadings; "and leave shall be freely given when justice so requires." To further the policy consideration that litigation, where possible, should be decided on the merits, the Third Circuit has repeatedly stated a "strong preference that [claimants] be given leave to amend where amendment is likely to cure the defects resulting in dismissal." ...