The opinion of the court was delivered by: Pisano, District Judge.
This is a Hatch-Waxman Act patent infringement action brought by Plaintiffs AstraZeneca Pharmaceutical LP and AstraZeneca UK Limited (together, "Astra") based upon the filing by IPC of an Abbreviated New Drug Application ("ANDA") seeking approval from the Federal Food and Drug Administration to market a generic version of Astra's Seroquel XR product. Defendants Intellipharmaceutics Corp. ("IPC") and Intellipharmaceutics International Inc. ("IPCI") have moved pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss this action for lack of personal jurisdiction or, in the alternative, pursuant to 28 U.S.C. § 1406(a) to transfer this action to the Southern District of New York. The Court decides the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons below, Defendants' motion is granted, and this matter is dismissed for lack of personal jurisdiction.
The original complaint in this matter was filed on May 23, 2011, and named only IPC as a defendant. IPC immediately challenged the jurisdiction of this Court, seeking to dismiss the complaint or transfer the case to the Southern District of New York. Astra subsequently filed an amended complaint adding IPCI as a defendant. In response to the amended complaint, IPC withdrew its original motion and Defendants filed the instant motion. Briefing on the motion was extended in light of Defendants' agreement to provide jurisdictional discovery.
As of result of IPC challenging the jurisdiction of this Court, Astra filed a "protective suit" in the Southern District of New York in order to preserve its rights to the statutory 30-month stay of FDA approval of IPC's ANDA. Pl. Brf. at 2. Thus, an identical action is presently pending in that district. The New York action, however, has been stayed pending the outcome of this motion. Id.
Jurisdictional discovery has been completed. The motion is now fully briefed and ripe for review.
Under Federal Rule of Civil Procedure 12(b)(2), a party may move for dismissal of an action based on lack of personal jurisdiction. Salovaara v. Jackson Nat'l Life Ins. Co., 246 F.3d 289, 300 (3d Cir. 2001). In deciding a motion to dismiss for lack of personal jurisdiction, the Court will construe as true the allegations within the complaint, and shall construe disputed facts in favor of the Plaintiff. Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003).
Once personal jurisdiction is challenged, the plaintiff has the burden of establishing that the case is properly before the court. General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001). In particular, "the plaintiff bears the burden of demonstrating [that] contacts with the forum state [are] sufficient to give the court in personam jurisdiction." Mesalic v. Fiberfloat Corp., 897 F.2d 696, 699 (3d Cir.1990). A plaintiff may satisfy this burden through the use of affidavits or other competent evidence. Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir.1996).
Generally, "[a] nexus between the defendant, the forum and the litigation is the essential foundation" of personal jurisdiction. General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001). The Third Circuit has set forth an analytical framework to determine whether personal jurisdiction over a non-resident defendant is proper. Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998). This analysis begins with an examination of Federal Rule of Civil Procedure 4(e). Id. A court must then consider whether the defendant's contacts with the forum state are sufficient to support general personal jurisdiction. Id. Absent general jurisdiction, a court should determine whether specific personal jurisdiction exists. Id.
Federal Rule of Civil Procedure 4(e) allows a court to exercise "personal jurisdiction over non-resident defendants to the extent permissible under the law of the state where the district court sits." Pennzoil Prods. Co., 149 F.3d at 200 (citation omitted). New Jersey's long-arm statute allows the exercise of personal jurisdiction over non-resident defendants to the fullest extent permitted by the Due Process Clause of the Fourteenth Amendment. Nicholas v. Saul Stone & Co., 224 F.3d 179, 184 (3d Cir. 2000).
Due Process requires that a defendant have minimum contacts with the forum state and that an exercise of jurisdiction over the defendant comport with " 'traditional notions of fair play and substantial justice.' " Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir.2001) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Further, "minimum contacts must have a basis in 'some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.' " Asahi Metal Indus. Co., 480 U.S. at 109 (quoting Burger King, 471 U.S. at 475). "Essentially, before hearing a case, a court must ask whether 'the quality and nature of the defendant's activity is such that it is reasonable and fair to require [that it] conduct [its] defense in that state.' " Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984) (modifications and emphasis in original) (quoting Kulko v. Super. Ct. of Cal., 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). Whether sufficient minimum contacts exist to assert personal jurisdiction depends upon "the nature of the interactions and type of jurisdiction asserted." Telcordia Tech Inc. v. Telkom SA Ltd., 458 F.3d 172, 177 (3d Cir. 2006). Where the cause of action does not arise out of or relate to the defendants activities in the forum State, but the defendant has "continuous and systematic" contacts with the forum state sufficient to confer personal jurisdiction, a court is said to exercise general jurisdiction over the defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 n. 9 (1984). On the other hand, a court exercises specific jurisdiction when the defendant has limited contacts with the forum state but the suit against him arises out of or relates to those contacts. Id. at 414 n. 8.
Plaintiffs here assert that both general and specific personal jurisdiction exists for Defendants. The ...