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Perrigo Co. v. Merial Ltd.

United States District Court, D. Nebraska

June 12, 2015

PERRIGO COMPANY, SERGEANT'S PET CARE PRODUCTS, INC., VELCERA, INC., FIDOPHARM, INC., Plaintiffs,
v.
MERIAL LIMITED, Defendant.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

This matter is before the court on Defendant's motion to transfer venue to the Northern District of Georgia, (Filing No. 24). For the reasons set forth below, the motion is granted.

BACKGROUND

This matter involves an alleged breach of contract by Defendant Merial Limited ("Merial").[1] The complaint was filed on December 12, 2014. (Filing No. 1). Plaintiff Perrigo Company is a Michigan company with its principal place of business in Michigan. Plaintiff Perrigo Animal Health is a Michigan corporation with its principal place of business in Nebraska. Velcera, Inc. and FidoFharm are Delaware corporations with their principal places of business in Nebraska. (Filing No. 1 ¶¶6-8 at CM/ECF p. 2). Defendant Merial is corporation with its principal place of business in Georgia.

On or around 2011, Merial and Velcera were engaged in litigation regarding certain Merial products covered by one or more claims of U.S. Patent No. 6, 069, 329 (the "329 Patent"). The parties entered a Master Settlement Agreement ("MSA") to resolve the dispute. In exchange for payments to Merial, the terms of the MSA granted Velcera the opportunity to enter the market prior to the expiration of the 329 Patent and compete with Merial products under certain specific conditions enumerated in the MSA. Merial was responsible for providing Velcera notice if one of the events triggering Velcera's right to compete and enter the market was triggered.

Perrigo acquired Velcera in or around April of 2013. Accordingly, Perrigo assumed all of Velcera's rights under the MSA. The case now before the court involves a dispute about whether Merial breached its obligations under the MSA. Specifically, Plaintiffs assert Merial breached the MSA by making an offer to grant a permission, right or license to a third party with respect to the 329 patent in breach of the MSA and without providing Plaintiff's notice of the event. As a result, Plaintiff alleges it was not allowed to take it's competing products to market in a timely manner, as contemplated by the MSA.

Plaintiffs filed suit in this court. Defendant filed a motion to dismiss, which was granted only as to Merial SAS. In the alternative, Defendant also moved to have the case transferred to the Northern District of Georgia. That motion is now before the court.

ANALYSIS

Under section 1404(a), "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C.A. § 1404(a).

The statute "was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper." Van Dusen v. Barrack, 376 U.S. 612, 634 n. 30, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (quoting Revisor's Note, H.R.Rep. No. 80-308, at A132 (1947), and H.R.Rep. No. 79-2646, at A127 (1946)).
"Congress, in passing § 1404(a), was primarily concerned with the problems arising where, despite the propriety of the plaintiff's venue selection, the chosen forum was an inconvenient one." Id. at 634, 84 S.Ct. 805.

In re Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010)

When considering a motion to transfer under § 1404(a), the court must balance both the parties' private interests and the interests of the public. The private interests include:

(1) the convenience of the parties, (2) the convenience of the witnesses - including the willingness of witnesses to appear, the ability to subpoena witnesses, and the adequacy of deposition testimony, (3) the accessibility to records and documents, ...

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