Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 1 of 16 PageID #: 2479
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`SEAGEN INC.,
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant.
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`v.
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`
`
`CASE NO. 2:20-cv-00337-JRG
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`
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`JURY TRIAL DEMANDED
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`DEFENDANT’S REPLY IN SUPPORT OF ITS
`RULE 12(b) MOTION TO DISMISS FOR LACK OF
`SUBJECT MATTER AND PERSONAL JURISDICTION
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`

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`Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 2 of 16 PageID #: 2480
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`TABLE OF CONTENTS
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`Page(s)
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`ARGUMENT ................................................................................................................................. 1
`I.
`THE COURT LACKS SUBJECT MATTER JURISDICTION ............................ 1
`II.
`THE COURT LACKS PERSONAL JURISDICTION ......................................... 5
`A.
`This Court Lacks Specific Jurisdiction over Daiichi Sankyo Japan .......... 5
`(1)
`SGI Cannot Rely upon the “Stream of Commerce” Theory .......... 5
`(2)
`SGI “Agency” Theory is Refuted by the Factual Record .............. 8
`(3)
`Declarations in Support of Daiichi Sankyo Japan’s Motions
`to Transfer and Dismiss are Based on Correct, Undisputed
`Facts ............................................................................................... 9
`Daiichi Sankyo Japan Is Not Subject to Jurisdiction Under FRCP
`4(k)(2) ...................................................................................................... 10
`CONCLUSION .......................................................................................................................... 100
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`B.
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`Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 3 of 16 PageID #: 2481
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Albany Int’l Corp. v. Yamauchi Corp.,
`978 F. Supp. 2d 138 (N.D.N.Y. 2013) .....................................................................................10
`
`Beverly Hills Fan Co. v. Royal Sovereign Corp.,
`21 F.3d 1558 (Fed. Cir. 1994)....................................................................................................7
`
`Bowles v. Russell,
`551 U.S. 205 (2007) ...................................................................................................................5
`
`Bristol-Myers Squibb Co. v. Superior Court,
`137 S. Ct. 1773 (2017) ...........................................................................................................6, 7
`
`Dyson v. Bayer Corp.,
`No. 4:17-cv-2584-SNLJ, 2018 WL 534375 (E.D. Mo. Jan. 24, 2018)......................................6
`
`Ex parte McCardle,
`74 U.S. 506 (1868) .................................................................................................................2, 5
`
`Fellowship Filtering Techs., LLC v. Alibaba.com, Inc.,
`No. 15-cv-2049-JRG, 2016 WL 6917272 (E.D. Tex. Sept. 1, 2016) ........................................8
`
`Fitbit, Inc. v. Koninklijke Philips N.V.,
`336 F.R.D. 574 (N.D. Cal. 2020) ...............................................................................................9
`
`Ford Motor Co. v. Montana Eighth Judicial Dist. Court,
`141 S. Ct. 1017 (2021) ...............................................................................................................6
`
`Georgetown Rail Equip. Co. v. Tetra Tech Can. Inc.,
`No. 6:18-cv-377-RWS-KNM, 2019 WL 5954966 (E.D. Tex. July 17, 2019) ........................10
`
`Italverde Trading, Inc. v. Four Bills of Lading,
`485 F. Supp. 2d 187 (E.D.N.Y. 2007) .......................................................................................9
`
`Micron Tech., Inc. v. Mosaid Techs., Inc.,
`518 F.3d 897 (Fed. Cir. 2008)....................................................................................................5
`
`NexLearn, LLC v. Allen Interactions, Inc.,
`859 F.3d 1371 (Fed. Cir. 2017)..................................................................................................6
`
`Polar Electro Oy v. Suunto Oy,
`829 F.3d 1343 (Fed. Cir. 2016)..................................................................................................7
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`Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 4 of 16 PageID #: 2482
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`Semcon IP Inc. v. TCT Mobile Int’l Ltd.,
`No. 2:18-cv-00194-JRG, 2019 WL 2774362 (E.D. Tex. July 2, 2019).....................................7
`
`Sitrick v. Freehand Sys., Inc.,
`No. 02-cv-1568, 2004 WL 2191491 (N.D. Ill. Sept. 27, 2004) .............................................7, 8
`
`Sunday v. Madigan,
`301 F.2d 871 (9th Cir. 1962) .................................................................................................4, 5
`
`Thomas v. Centennial Commc’ns Corp.,
`No. 3:05-cv-495, 2006 WL 6151153 (W.D.N.C. Dec. 20, 2006) ..............................................8
`
`TriOptima AB v. Quantile Techs. Ltd.,
`No. 19-cv-00390-JRG, No. 149, slip op. (E.D. Tex. Nov. 25, 2020) ......................................10
`
`Statutes
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`15 U.S.C. § 262 ................................................................................................................1, 2, 3, 4, 5
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`35 U.S.C. § 154 ........................................................................................................................1, 3, 4
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`Other Authorities
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`Federal Rule of Civil Procedure 4(k)(2) ........................................................................................10
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`Federal Rule of Civil Procedure 12(h)(3) ........................................................................................2
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`46 Fed. Reg. 12,945–46 ...................................................................................................................4
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`Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 5 of 16 PageID #: 2483
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`Seagen Inc. (“SGI”) devotes nearly the entirety of its opposition to arguing that this Court
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`has personal jurisdiction over Daiichi Sankyo Company, Limited (“Daiichi Sankyo Japan”). But
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`the threshold question is whether SGI has established subject matter jurisdiction. It has not. SGI
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`did not wait to file suit after its right to assert its patent in Texas, and this Court’s ability to exercise
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`jurisdiction, accrued—namely, when the clock struck midnight in Texas the day U.S. Patent No.
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`10,808,039 (“the ’039 patent”) issued. Congress’s mandate is clear: time zones must be observed
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`when assessing when a party’s rights have accrued such that it can file suit in a particular court
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`and that court can exercise jurisdiction. Under Section 262 of the Uniform Time Act (the “Act”
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`or “UTA”) and Section 154 of the Patent Act, SGI’s lawsuit was premature, this Court lacks subject
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`matter jurisdiction, and immediate dismissal is required.
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`SGI’s Complaint must also be dismissed for the separate and independent reason that this
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`Court lacks personal jurisdiction over Daiichi Sankyo Japan, a Japanese entity with no operations
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`in the United States, let alone in Texas. The only direct activities in Texas that SGI identifies—
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`even after extensive jurisdictional discovery—are that, prior to the patent’s issuance, Daiichi
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`Sankyo Japan sponsored clinical trials for Enhertu® in Texas and some of its employees attended
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`certain research conferences. That is insufficient to establish personal jurisdiction. SGI’s reliance
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`on actions by Daiichi Sankyo Japan’s US-based affiliate, and other non-parties, is unavailing under
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`both a stream-of-commerce and agency theory. If SGI wanted to sue Daiichi Sankyo Japan, it
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`should have filed in the District of Delaware where venue and jurisdiction are proper.
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`ARGUMENT
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`I.
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`THE COURT LACKS SUBJECT MATTER JURISDICTION
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`SGI’s Complaint asserted its right to enforce its patent in Texas against acts of infringement
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`“in the United States, the State of Texas, and the Eastern District of Texas”; it was filed at 11:02
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`pm Central Time on October 19, 2020, the day before the right to enforce the patent in Texas
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`accrued.1 (Dkt. No. 1 ¶9; Dkt. No. 67 (“Opp.”) at 17–18.) That assertion of jurisdiction traduces
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`the system, codified in the UTA, which has governed nearly every aspect of activity in this nation
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`for more than a century—from when activity is criminally proscribed to when taxes must be
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`filed—and specifically mandates that rights and obligations that accrue on a specific date accrue
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`in a particular location on that date in that location. Because SGI initiated this lawsuit on October
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`19, 2020, before its right to enforce the patent accrued in this Court, this Court lacks subject matter
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`jurisdiction and must dismiss SGI’s Complaint. Ex parte McCardle, 74 U.S. 506, 514 (1868); see
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`Fed. R. Civ. P. 12(h)(3).
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`SGI’s invitation for the Court to apply absolute time, rather than the UTA, addresses the
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`wrong question and ignores the controlling Congressional mandate. (Opp. at 17–20.) The issue
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`here is not which of two events—the filing of the lawsuit or the issuance of the patent—occurred
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`first. There is no dispute that the patent issued on the East Coast before SGI filed suit in Texas.
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`The patent is not Schrödinger’s cat (Opp. at 18)—it existed at all times following its issuance. The
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`question here, rather, is when federally conferred rights, such as to enforce a patent in a particular
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`location and the court’s ability to exercise jurisdiction over a claim of infringement, accrue. In
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`clear terms, the UTA codifies that those rights accrue based on “the United States standard time
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`of the zone within which the act is to be performed,” not the absolute time invoked by SGI:
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`In all statutes, orders, rules, and regulations [(i)] relating to the time of
`performance of any act by any officer or department of the United States, whether
`in the legislative, executive, or judicial branches of the Government, or [(ii)]
`relating to the time within which any rights shall accrue or determine, or [(iii)]
`within which any act shall or shall not be performed by any person subject to the
`jurisdiction of the United States, it shall be understood and intended that the time
`shall insofar as practicable (as determined by the Secretary of Transportation) be
`the United States standard time of the zone within which the act is to be
`performed.
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`1 “Exh.” refers to the exhibits attached to the April 7, 2021 Declaration of Preston K. Ratliff II
`submitted in support of Defendant’s Reply in Support of its Motion to Dismiss.
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`15 U.S.C. § 262 (emphases added). Tellingly, SGI relegates most of this text to a footnote and
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`makes no serious effort to engage with the language of the statutory mandate. (Opp. at 19 n.5.)
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`SGI attempts to justify its premature filing by addressing only one purported “act . . . to be
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`performed”—the U.S. Patent and Trademark Office’s (“PTO”) issuance of the patent—and
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`ignoring all others. (Opp. at 19.) But contrary to SGI’s argument, the PTO’s location in the
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`Eastern Time Zone does not address the accrual of rights to enforce a patent in a court located in
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`another time zone and that court’s exercise of jurisdiction over such claims. (Opp. at 17–18.) The
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`UTA extends to “all statutes, orders, rules, and regulations relating to the time of performance of
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`any act by any officer . . . of the United States,” explicitly including judicial officers, or relating
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`“to the time within which any rights shall accrue or determine.” 15 U.S.C. § 262 (emphases
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`added). In short, the Act dictates that multiple facets of litigation are governed by the relevant
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`local time zone, including the accrual of a right to sue to enforce patent rights, when a party may
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`file suit in a court sitting in Texas, when a competitor’s conduct may constitute infringement, and
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`when that court may exercise jurisdiction.
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`Section 154 of the Patent Act makes plain that the ’039 patent’s exclusivity “shall be for a
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`term beginning on the date on which the patent issues and ending 20 years from the date” of the
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`earliest-filed application. 35 U.S.C. § 154(a)(2) (emphases added). By defining when a patentee
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`obtains the statutory right to sue for infringement, Section 154 relates to “the time within which
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`any rights shall accrue” and “the time of performance of any act by . . . [the] judicial branch[],”
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`because it defines when courts properly can exercise jurisdiction over an infringement suit.2 15
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`2 SGI also makes much of the fact that the UTA refers to determinations made by the Secretary of
`Transportation. (Opp. at 19.) But Section 262 governs the acts of “any officer or department of
`the United States, whether in the legislative, executive, or judicial branches of the Government.”
`15 U.S.C. § 262. It thus applies to this Court’s exercise of jurisdiction.
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`U.S.C. § 262. The UTA thus mandates that when the right to sue for patent infringement accrues
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`and when a court may exercise jurisdiction over infringement claims depends on “the United States
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`standard time of the zone” where the patentee enforces the right and files suit. Id.
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`SGI makes no effort to divorce the UTA from Section 154. Worse, SGI refuses to engage
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`with the germane portions of the UTA, instead arguing that it is somehow irrelevant, because it
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`solely “promote[s] the adoption and observance of uniform time within the standard time zones.”
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`(Opp. at 18.) Although that was a purpose of the Act, the plain language of Section 262 evinces
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`an additional intent—“that zoned variations in time shall be observed in determining the time when
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`statutory rights or liabilities accrue.” Sunday v. Madigan, 301 F.2d 871, 874 (9th Cir. 1962).
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`Reconciling federal statutes to local time zones is commonplace throughout American law.
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`For example, time zones are used to assess whether electronically-filed tax returns are timely. IRS,
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`Topic No. 301 When, How, and Where to File, https://www.irs.gov/taxtopics/tc301 (last visited
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`Apr. 7, 2021). Were SGI’s statutory re-draft correct, taxpayers in Hawaii would be scrambling to
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`file their returns by 6:00 pm on April 15 before the date changed in Washington, DC. As every
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`citizen, agency, and court has recognized for more than a century, federal obligations and rights
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`do not accrue in the manner SGI implausibly urges. See, e.g., Sunday, 301 F.2d at 874; 46 Fed.
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`Reg. 12,945, 12,946 n.1 (Feb. 19, 1981) (Department of Energy rule recognizing that order
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`exempting oil from price controls became effective on January 28 at 12:01 am in each different
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`time zone, citing the UTA).
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`That no court yet has addressed the application of the UTA in patent cases does not justify
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`subverting the Act. Nor is it persuasive that prior courts have assessed when the right to sue for
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`patent infringement accrues without considering the Act. The clearest authority regarding the
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`determinative question here—whether the Act applies to the accrual of federal rights and
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`obligations across time zones, as its language plainly conveys—is Sunday, a decision SGI seeks
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`to distinguish on grounds that are flatly irrelevant. (Opp. at 20 n.6.) In Sunday, the Ninth Circuit
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`found that a criminal statute set to go into effect on May 31 went into effect at midnight in each
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`respective time zone. Sunday, 301 F.2d at 874–75. That Sunday addressed accrual of a criminal
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`proscription of rights rather than the grant of a right to exclude and sue, or that the UTA happened
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`to result in accrual earlier (rather than later) in absolute time cannot obscure that Sunday holds that
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`the Act means what it says: that federal rights accrue, and acts are permitted and become effective,
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`depending on the location where they are asserted (or violated).
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`Rather than grapple with the statute, SGI retreats to public policy, conjuring theoretical
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`fears—never realized in the century since the Act’s enactment—of inducing a race to the
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`courthouse by giving an undue advantage to East Coast filers. (Opp. at 18.) Although the UTA
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`dictates application of the time zone where the court is located to assess subject matter jurisdiction,
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`courts can readily use their equitable powers to ameliorate any theoretical unfairness and
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`discourage any rush to the courthouse. See, e.g., Micron Tech., Inc. v. Mosaid Techs., Inc., 518
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`F.3d 897, 904 (Fed. Cir. 2008) (holding that the district court has discretion to determine whether
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`to apply the first-filed rule). “Equitable considerations,” however, cannot permit the exercise of
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`subject matter jurisdiction where Congress has not created it. See Bowles v. Russell, 551 U.S. 205,
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`214 (2007) (observing that courts have “no authority to create equitable exceptions to jurisdictional
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`requirements”). Dismissal is mandated. See Ex parte McCardle, 74 U.S. at 514.
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`II.
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`THE COURT LACKS PERSONAL JURISDICTION
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`A.
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`This Court Lacks Specific Jurisdiction over Daiichi Sankyo Japan
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`SGI Cannot Rely upon the “Stream of Commerce” Theory
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`(1)
`The Supreme Court’s personal jurisdiction jurisprudence is unambiguous that where, as
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`here, a non-resident plaintiff files suit against a non-resident defendant and that defendant does not
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`directly engage in activities in the forum state relating to the case at issue, there is no specific
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`jurisdiction under a stream-of-commerce theory. Ford Motor Co. v. Montana Eighth Judicial Dist.
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`Court, 141 S. Ct. 1017, 1031 (2021); Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773
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`(2017). In Bristol-Myers, the Court found that the exercise of specific jurisdiction over the claims
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`of the non-resident plaintiffs was inappropriate even though the defendant sold the product
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`nationwide, including in the forum state. 137 S. Ct. at 1775, 1782. As the Court explained in
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`Ford Motor, the non-resident plaintiffs in Bristol-Myers were merely “engaged in forum
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`shopping—suing in California because it was thought plaintiff-friendly, even though their cases
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`had no tie to the State.” Ford Motor, 141 S. Ct. at 1031. The same is true here. Moreover, SGI’s
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`reliance on Ford Motor is unavailing. The Court there focused on the facts that (1) the plaintiffs
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`were forum residents and (2) the defendant had extensive direct operations in the forum related to
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`the product. Id. at 1026–31. Neither circumstance is present here.
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`SGI is not a Texas resident. Daiichi Sankyo Japan is not a Texas resident. Daiichi Sankyo
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`Japan has no business operations in Texas. It does not have offices in Texas, it does not sell
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`Enhertu® in Texas, and it does not advertise in Texas.3 Moreover, as described infra, Daiichi
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`Sankyo Japan does not—contrary to SGI’s assertions—import Enhertu® into the United States (let
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`alone in Texas).
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`3 Non-party Daiichi Sankyo, Inc. (“Daiichi Sankyo US”)—not Daiichi Sankyo Japan—sells
`Enhertu® in the U.S. (Exh. 1; Exh. 2; Exh. 3 at 33:17–19, 71:7–9.) In fact, the only direct activities
`that SGI attributes to Daiichi Sankyo Japan in Texas are sponsoring certain clinical trials and
`presenting research before the ’039 patent’s issuance (Opp. at 9), neither of which is relevant for
`assessing jurisdiction. See, e.g., NexLearn, LLC v. Allen Interactions, Inc., 859 F.3d 1371, 1376–
`78 (Fed. Cir. 2017) (acts by accused infringer, including conference presentations, did not support
`jurisdiction when those acts pre-dated patent issuance); Dyson v. Bayer Corp., No. 4:17-cv-2584-
`SNLJ, 2018 WL 534375, at *5 (E.D. Mo. Jan. 24, 2018) (clinical trials that occurred in the forum
`state were not an “adequate link” for jurisdiction).
`4 SGI’s confusion (Opp. at 8) derives from ambiguous references to “Daiichi Sankyo” in its cited
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`Although SGI focuses on the fact that Enhertu® is sold and advertised in the United States and
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`Texas (albeit not by Daiichi Sankyo Japan), (Opp. at 9), that is insufficient. See Bristol-Myers,
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`137 S. Ct. at 1775. Nor can SGI, a Washington-headquartered and Delaware-incorporated non-
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`resident, claim to have been injured in the state of Texas.
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`SGI’s efforts to distinguish the other authority cited in Daiichi Sankyo Japan’s opening
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`brief likewise fail. Although SGI tries to analogize the facts here to those present in Polar Electro
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`Oy v. Suunto Oy, 829 F.3d 1343 (Fed. Cir. 2016), and Semcon IP Inc. v. TCT Mobile Int’l Ltd.,
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`No. 2:18-cv-00194-JRG, 2019 WL 2774362 (E.D. Tex. July 2, 2019), there can be no dispute that
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`the defendants in those cases shipped the product directly into the forum. Here, as SGI admits,
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`Daiichi Sankyo Japan “does not directly ship Enhertu[®] to Texas.” (Opp. at 10.) In short, there
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`is no basis to exercise jurisdiction over Daiichi Sankyo Japan under a stream of commerce theory.
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`For these same reasons, there is no basis for jurisdiction for SGI’s claims of indirect
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`infringement. Although SGI implies (Opp. at 12) that there is a separate test or analysis with
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`respect to personal jurisdiction for indirect infringement claims, the cases it cites address the same
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`stream-of-commerce theory that, as discussed above, cannot support jurisdiction here. To the
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`extent that there is a separate analysis, however, the proper inquiry is whether the defendant
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`intended infringement to occur inside the forum, not merely whether infringement occurred there.
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`Sitrick v. Freehand Sys., Inc., No. 02-cv-1568, 2004 WL 2191491, at *4 (N.D. Ill. Sept. 27, 2004)
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`(citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1566–68 (Fed. Cir. 1994)).
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`Because SGI cannot show that Daiichi Sankyo Japan directed its actions to Texas “more than to
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`publications, while testimony and financial documents demonstrate that
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`any other state where the accused product is sold” and the alleged act of inducement occurred
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`outside of Texas, there is no specific jurisdiction over Daiichi Sankyo Japan for the indirect
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`infringement claims in this Action. Sitrick, 2004 WL 2191491, at *4; Thomas v. Centennial
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`Commc’ns Corp., No. 3:05-cv-495, 2006 WL 6151153, at *3 (W.D.N.C. Dec. 20, 2006) (“[A]ny
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`alleged act of inducement occurred outside of the [forum state], and was no more directed towards
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`[the forum state] than to any other state in which the accused products were used.”).5
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`(2)
`SGI omits the clear testimony detailing the lack of control necessary for agency:
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`SGI “Agency” Theory is Refuted by the Factual Record
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`Not only does SGI overstate the officer overlap between Daiichi Sankyo Japan and Daiichi
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`Sankyo US (it only demonstrated one common officer) but its focus on contractual language also
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`ignores the above-described practical reality of the companies’ relationship. Cf. Fellowship
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`Filtering Techs., LLC v. Alibaba.com, Inc., No. 2:15-cv-2049-JRG, 2016 WL 6917272, at *2, *4
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`(E.D. Tex. Sept. 1, 2016) (100% stock ownership and identity of directors and officers is not a
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`sufficient basis to impute contacts under an agency theory, and rejecting plaintiff’s “effective
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`control” argument based on “contractual relationships”).
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`5 The commercialization and distribution of Enhertu® by non-party Daiichi Sankyo US occurs
`nationwide and does not target Texas in particular.
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`Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 13 of 16 PageID #: 2491
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` Daiichi
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`Sankyo US is not Daiichi Sankyo Japan’s agent for purposes of specific personal jurisdiction.
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`Fitbit, Inc. v. Koninklijke Philips N.V., 336 F.R.D. 574, 581 (N.D. Cal. 2020) (no specific
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`jurisdiction over the foreign parent under the Federal Circuit’s agency jurisprudence where it “does
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`not have day-to-day management or control over the activities of any subsidiary in California”).
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`(3)
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`Declarations in Support of Daiichi Sankyo Japan’s Motions to
`Transfer and Dismiss are Based on Correct, Undisputed Facts
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`SGI advances outrageous claims of misleading statements and falsification during
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`jurisdictional discovery (Opp. at 4-7) by misinterpreting documents and deposition testimony.
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`Finally, contrary to SGI’s arguments, (Opp. at 5), Mr. Smith was prepared to testify, and
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`did testify, as to the topics for which he was proffered. During his deposition, however, SGI
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`focused on obscure details of the manufacturing of the
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`6 Further, SGI’s argument regarding the passage of title is incorrect, and relies on an improper
`interpretation of Mr. Smith’s deposition testimony. Incoterms like “DDP” merely address the
`passage of risk and do not affect non-party Daiichi Sankyo US’s designation as the “Importer of
`Record.” Italverde Trading, Inc. v. Four Bills of Lading, 485 F. Supp. 2d 187, 200 (E.D.N.Y.
`2007).
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`, which is not addressed in Mr. Miki’s declaration, and therefore is not a topic on
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`which Mr. Smith could have been expected to provide testimony.
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` as
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`SGI’s allegations of infringement focus on the sale, offer for sale, and distribution of Enhertu®
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`within the U.S.
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`B.
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`Daiichi Sankyo Japan Is Not Subject to Jurisdiction Under FRCP 4(k)(2)
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`Rule 4(k)(2) exists to avoid a situation in which a foreign entity—that has sufficient
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`contacts with the United States as a whole—escapes liability simply because no state has sufficient
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`contacts to exercise jurisdiction. No such concerns exist here. Daiichi Sankyo Japan consented to
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`the jurisdiction of the District of Delaware, where it filed a lawsuit against SGI before this lawsuit
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`was filed. This defeats jurisdiction under Rule 4(k)(2). See, e.g., Albany Int’l Corp. v. Yamauchi
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`Corp., 978 F. Supp. 2d 138, 145-47 (N.D.N.Y. 2013) (filing related lawsuit in federal court was
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`sufficient to establish jurisdiction in that district); TriOptima AB v. Quantile Techs. Ltd., No. 2:19-
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`cv-00390-JRG, No. 149, slip op. at 12 (E.D. Tex. Nov. 30, 2020) (“Seeing as Quantile has asserted
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`that it is subject to personal jurisdiction in New York, Rule 4(k)(2) does not apply here.”);
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`Georgetown Rail Equip. Co. v. Tetra Tech Can. Inc., No. 6:18-cv-377-RWS-KNM, 2019 WL
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`5954966, *7–9 (E.D. Tex. July 17, 2019) (Rule 4(k)(2) inapplicable where defendant appropriately
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`identified and consented to jurisdiction in federal district courts in two separate states).7
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`Daiichi Sankyo Japan respectfully requests dismissal of the Complaint without prejudice.
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`CONCLUSION
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`7 The authority SGI cites is inapposite. In Merial Ltd. v. Cipla Ltd., 681 F.3d 1283 (Fed. Cir.
`2012), the defendant only contemplated doing business in the relevant state, shipped products after
`the lawsuit, and had no connection to the state when the suit was filed. Id. at 1294. Not so here.
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`- 10 -
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`

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`Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 15 of 16 PageID #: 2493
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`Dated: April 7, 2021
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`Respectfully submitted,
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`/s/ Deron R. Dacus
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`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas, 75701
`+1 (903) 705-1117
`+1 (903) 581-2543 facsimile
`ddacus@dacusfirm.com
`
`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
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`Attorneys for Defendant Daiichi
`Sankyo, Company, Limited
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`OF COUNSEL:
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`Preston K. Ratliff II
`Joseph M. O’Malley, Jr.
`Ashley N. Mays-Williams
`Paul Hastings LLP
`200 Park Avenue
`New York, NY 10166
`(212) 318-6000
`
`Attorneys for Defendant Daiichi
`Sankyo, Company, Limited
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`- 11 -
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`Case 2:20-cv-00337-JRG Document 73 Filed 04/14/21 Page 16 of 16 PageID #: 2494
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who have consented to
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`electronic service are being served with a copy of this document via electronic mail on April 7,
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`2021. I also hereby certify that all counsel of record who have consented to electronic service are
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`being served with a notice of filing of this document, under seal, pursuant to L.R. CV-5(a)(7) on
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`April 7, 2021.
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`/s/ Preston K. Ratliff II
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