MLI RX LLC v. GLAXOSMITHKLINE LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MLI RX, LLC, CIVIL ACTION

AMERISOURCEBERGEN CORP.,

AMERISOURCEBERGEN DRUG CORP.,

H.D. SMITH, LLC,

VALLEY WHOLESALE DRUG CO.,

LLC, (Subsidiary of H.D. Smith, LLC), NO. 23-429

CARDINAL HEALTH, INC.,

CARDINAL HEALTH P.R. 120, INC.,

THE HARVARD DRUG GROUP, L.L.C.,

CARDINAL HEALTH 110 LLC,

McKESSON CORPORATION,

BURLINGTON DRUG COMPANY, INC.,

DAKOTA DRUG, INC.,

NORTH CAROLINA MUTUAL

WHOLESALE DRUG COMPANY,

J.M. SMITH CORPORATION, doing

business as “SMITH DRUG COMPANY,”

VALUE DRUG COMPANY, and

PRESCRIPTION SUPPLY, INC.,

Plaintiffs,

v.

GLAXOSMITHKLINE LLC, formerly

known as “SMITHKLINE BEECHAM

CORPORATION,” and doing business as

“GLAXOSMITHKLINE,”

TEVA PHARMACEUTICAL

INDUSTRIES LTD., and

TEVA PHARMACEUTICALS USA, INC.,

Defendants.

MEMORANDUM

HODGE, K. May 30, 2023

Plaintiffs MLI RX, LLC, AmerisourceBergen Corp., AmerisourceBergen Drug Corp.,

H.D. Smith, LLC, Valley Wholesale Drug Co. LLC, Cardinal Health, Inc., Cardinal Health P.R.

120, Inc., The Harvard Drug Group, L.L.C., Cardinal Health 110 LLC, McKesson Corporation,

Burlington Drug Company, Inc., Dakota Drug, Inc., North Carolina Mutual Wholesale Drug

Company, J.M. Smith Corporation, Value Drug Company, Prescription Supply, Inc. (collectively

“Plaintiffs”) brought this antitrust action against Defendants GlaxoSmithKline LLC, Teva

Pharmaceutical Industries LTD., and Teva Pharmaceuticals USA, Inc. (collectively

“Defendants”) alleging violations of Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C §§

1-2.

Presently before the Court is Defendants’ Motion to Transfer (ECF Nos. 28 & 44)1

requesting that pursuant to Section 28 U.S.C. § 1404(a) and the “first-to-file” doctrine2 this

matter be transferred to the United States District Court for the District of New Jersey (“District

of New Jersey”) where a similar case, In re: Lamictal Direct Purchaser Antitrust Litig., No.

2:12-cv-00995 (D.N.J.) (the “New Jersey Action”), has been ongoing since February 17, 2012.

Contemporaneously, Defendants also filed a Motion to Stay (ECF Nos. 30 & 44) this case

pending the outcome of their Motion to Transfer. Plaintiffs do not dispute that the present matter

is substantially similar to the New Jersey Action. Nor do they argue the District of New Jersey

lacks a connection to this matter, or that venue and jurisdiction would be improper there. Rather,

Plaintiffs contend that this case should not be transferred to the District of New Jersey because of

the “history of long delays” in that court. (ECF No. 40 at 9.) Citing the public and private

interest factors under 28 U.S.C 1404(a) that weigh for and against a change of venue, Plaintiffs

argue that transferring this action to the District of New Jersey would be improvident because it

would “exacerbate the judicial burdens clearly facing that district.” (Id. at 10.) Plaintiffs also

1 The Motion to Transfer and Motion to Stay were filed only by Defendants GlaxoSmithKline LLC and Teva

Pharmaceuticals USA, Inc. on March 2, 2023, but Defendant Teva Pharmaceutical Industries Ltd. subsequently

joined these motions on March 16, 2023. (ECF No. 44.)

2 The “first-to-file” doctrine is sometimes referred to as the “first-filed” rule, and therefore, the Court uses these

terms interchangeably.

emphasize that three of the sixteen Plaintiffs and one of the Defendants have a nexus to

Pennsylvania. (Id.)

After reviewing the New Jersey Action, the Complaint in this matter, and the parties’

briefing, the Court agrees with the Defendants. The Court finds that the first-to-file rule applies

and supports a venue transfer to the District of New Jersey. The Court also finds that a venue

transfer is warranted under Section 1404(a). Therefore, for the reasons more fully set forth

below, the Court grants Defendants’ Motion to Transfer and, thereby, denies the Motion to Stay

as moot.

I. BACKGROUND

On February 2, 2023 – a day after the District of New Jersey issued a ruling denying

Plaintiff’s motion for class-certification in the New Jersey Action – Plaintiffs filed suit before

this Court against the same defendants, GlaxoSmithKline LLC (“GSK”), Teva Pharmaceutical

Industries LTD., and Teva Pharmaceuticals USA, Inc. (jointly “Teva”) alleging that they violated

antitrust laws through their settlement agreement to end a patent suit over GSK’s brand-name

drug Lamictal and Teva’s generic form, lamotrigine. (ECF No. 1); see also In re: Lamictal

Direct Purchaser Antitrust Litig., No. 2:12-cv-00995 (D.N.J.) (ECF Nos. 553 & 554.) The basis

of this litigation stems from the Hatch-Waxman Act of 1984 that allows drug manufacturers to

bring generics to market for a 180-day exclusivity period by piggybacking off a brand-name

drug’s safety and efficacy studies and Food and Drug Administration (“FDA”) approval, through

what is known as an Abbreviated New Drug Application (“ANDA”). (Id. at 3.) To do so, the

generic manufacturer certifies in its ANDA that the brand-name drug’s patent is invalid, but if

the brand-name manufacturer challenges that designation, FDA approval for the generic is

enjoined for a certain time-period. (Id. at 4.) And that is exactly what occurred: GSK challenged

Teva in patent litigation which delayed Teva’s generic version of lamotrigine from getting FDA

approval and coming to market. Yet in that time, GSK, under the relevant regulatory framework,

could have launched or licensed its own generic form of Lamictal, known as an “Authorized

Generic (AG).” (Id. at 51-53.) Though Teva was successful in the patent litigation bench trial as

to one infringement claim, the judge informed the parties that he would subsequently deliberate

as to the remaining claims whereupon GSK and Teva decided, instead, to settle.3 (Id. at 7.) As

part of the settlement, GSK agreed not to launch an AG in exchange for Teva selling generic

lamotrigine later than it otherwise would have been able to. (Id. at 9-14.) Plaintiffs, all

purchasers of Defendants’ drugs, claim that the settlement agreement amounts to an antitrust

violation as it caused them to pay more than they otherwise would have, had market competition

not been delayed. (Id. at 45.)

The New Jersey Action, originally filed on February 17, 2012, has resulted in a lengthy

and complicated litigation history with numerous appeals and stays issued by the court. In re:

Lamictal Direct Purchaser Antitrust Litig., No. 2:12-cv-00995 (D.N.J.) (ECF No. 1.) Originally,

the District of New Jersey granted Defendants’ motion to dismiss the putative class action

complaint. In re: Lamictal Direct Purchaser Antitrust Litig., No. 2:12-cv-00995, 2012 U.S. Dist.

LEXIS 183627 (D.N.J. Dec. 6, 2012). On appeal, however, the United States Court of Appeals

for the Third Circuit held that the complaint sufficiently alleged an antitrust violation under the

Supreme Court’s precedent in FTC v. Actavis, 133 S. Ct. 2223 (2013). See King Drug Co. of

Florence, Inc. v. SmithKline Beecham Corp., 791 F.3d 388 (3d Cir. 2015) (ruling that the Actavis

3 In August of 2002, GSK filed a patent infringement suit against Teva in the District of New Jersey alleging that

Teva’s ANDA for generic lamotrigine infringed GSK’s patent for Lamictal. See Smithkline Beecham Corp. v. Teva

Pharm. USA, Inc., No. 02-3779 (D.N.J. Aug. 5, 2002) (ECF No. 1). In late January of 2005, the case was tried

before Judge John Bissell who declared that “Claim One of the Patent at issue is invalid.” See Smithkline Beecham

Corp, No. 02-3779 (D.N.J. Aug. 5, 2002) (ECF No. 86). Following the parties’ settlement of the matter, the court

dismissed the action and the bench ruling was withdrawn. See Smithkline Beecham Corp, No. 02-3779 (D.N.J. Aug.

5, 2002) (ECF Nos. 87, 88, & 89.)

holding is not limited to cash reverse payments and that a no-AG agreement is subject to antitrust

scrutiny under the Rule of Reason).

In late 2015, the parties commenced fact discovery with an additional ten months of

expert discovery concluding in 2018. In re: Lamictal Direct Purchaser Antitrust Litig., No. 12-

cv-995 (D.N.J.) (ECF Nos. 159, 255, 276, 390.) Following the completion of discovery, in 2018

the District of New Jersey certified a class that included in its definition both direct purchasers of

generic lamotrigine and brand-name Lamictal, but later that decision was vacated by the Third

Circuit with directions to the lower court on remand to perform a “rigorous analysis” as to

whether to certify generic lamotrigine purchasers as a class. In re Lamictal Indirect Purchaser &

Antitrust Consumer Litig., No. 12-cv-995, 2018 WL 6567709 (D.N.J. Dec. 12, 2018) (“Lamictal

I”), vacated and remanded sub nom. In re Lamictal Direct Purchaser Antitrust Litig., 957 F.3d

184, 191 (3d Cir. 2020) (“Lamictal II”). On remand, the District of New Jersey denied class

certification as to the generic-only purchasers, but since Defendants did not challenge

certification as to 32 direct purchasers of the brand-name drug Lamictal, the parties disputed

whether the District of New Jersey’s original class certification in Lamictal I encompassed and

remained intact as to the brand-name only purchasers following the Third Circuit’s ruling in

Lamictal II. See In re Lamictal Direct Purchaser Antitrust Litig., No. 12-cv-995, 2021 WL

2349828 (D.N.J. June 7, 2021) (“Lamictal III”). The District of New Jersey then determined that

since Lamictal I did not address the numerosity requirement of class certification, the court could

not have certified the direct brand-name purchaser class. In re: Lamictal Direct Purchaser

Antitrust Litig., No. 12-cv-995 (D.N.J.) (ECF Nos. 528 at 7-8, 516 at 1.) The parties then

engaged in another protracted dispute, culminating in a court order that prevented plaintiffs from

utilizing a supplemental expert report after the deadline had expired. In re Lamictal Direct

Purchaser Antitrust Litig., No. 12-cv-995, 2022 WL 190651, at * 3-4 (D.N.J. Jan. 21, 2021)

(“Lamictal IV”). Since the opinions did not foreclose certification as to subclasses, on May 20,

2022, the plaintiffs filed a second motion to certify a class, this time defined to include a smaller

subset of purchasers of generic lamotrigine and brand-name Lamictal, which the District of New

Jersey denied on February 1, 2023. In re: Lamictal Direct Purchaser Antitrust Litig., No. 12-cv-

995 (D.N.J.) (ECF No. 553.)

In sum, after a decade’s worth of protracted litigation where each party has vigorously

argued their respective positions on behalf of their clients, what remains is a case in which the

Third Circuit has already determined a plausible antitrust theory exists. However, class

certification has been denied. Purchasers not named as plaintiffs who otherwise could have

joined the New Jersey Action had the class certification been successful, now bring an action

before this Court based on the same claims and allegations but styled as an individual rather than

putative class action.

II. DISCUSSION

a. First-to-File Doctrine

The “first-to-file” doctrine is a comity-based rule that states when two substantially

similar lawsuits are filed in different federal district courts with jurisdiction, there is a

presumption that the court in which the case was filed first should hear both lawsuits except in

special circumstance. Smith v. M’Iver, 22 U.S. 532, 536 (1824) (“[a]dmitting, then, the

concurrent jurisdiction of the Courts…we think the case must be decided by the tribunal which

first obtains possession of it, and that each Court must respect the judgment and decree of the

other.”); Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929-30 (3d Cir. 1941) (adopting rule

that in “all cases of concurrent jurisdiction, the court which first has possession of the subject

must decide it”); E.E.O.C. v. Univ. of Pennsylvania, 850 F.2d 969, 971 (3d Cir. 1988) aff’d, 493

U.S. 182 (1990) (noting that the rule permits “trial judges to exercise their discretion by

enjoining the subsequent prosecution of similar cases ... in different federal district courts.”).

The “letter and the spirit of the first-filed rule ... are grounded on equitable principles” and “the

rule’s primary purpose is to avoid burdening the federal judiciary and to prevent the judicial

embarrassment of conflicting judgments.” Univ. of Pennsylvania, 850 F.2d at 977. The rule

empowers the district court to transfer, stay, or dismiss the subsequently filed action, though

where the first-filed action presents a likelihood of dismissal, it is an abuse of discretion to

dismiss the second-filed action with prejudice as it creates the risk that the merits of the claim

will never be addressed. See generally Chaevz v. Dole Food Co., 856 F.3d 205 (3d Cir. 2016).

The first-to-file doctrine is not absolute, though “the rule will usually be the norm, not the

exception.” Univ. of Pennsylvania, 850 F.2d at 979. The recognized exceptions for departing

from the rule include: (1) rare or extraordinary circumstances; (2) inequitable conduct; (3) bad

faith; (4) forum shopping; (5) where the later-filed action has developed further than the first-

filed action; and (6) when the first filing party instituted suit in one forum in anticipation of the

opposing party’s imminent suit in another, less favorable, forum. Univ. of Pennsylvania, 850

F.2d at 976 (departure from the first-to-file doctrine justified where the defendants filed the first

action shortly before the second-filed suit (which it had notice of) and by the defendants’

admission, to specifically avoid an unfavorable ruling in the Third Circuit); Owen v. Nestle

Healthcare Nutrition, Inc., No. 22-cv-2855, 2023 U.S. Dist. LEXIS 36638, at * 4 (D.N.J Mar. 6,

2023).

Defendants argue that the first-to-file doctrine applies and warrants a transfer to the

District of New Jersey because the New Jersey Action was filed first against the same defendants

by the same counsel involving substantially similar subject matter and identical claims. (ECF

No. 28 at 13.) Cognizant of the differences between named-plaintiffs in the New Jersey Action

and the present matter, Defendants state that strict-identity of parties is not required for the first-

to-file doctrine to apply. Defendants further argue that Plaintiffs have engaged in forum-

shopping – behavior the first-to-file doctrine is designed to prevent – by filing a nearly identical

action before this Court after the District of New Jersey made unfavorable findings against the

Plaintiffs and repeatedly denied class certification.

Plaintiffs concede that the substance of this action is substantially similar to the New

Jersey Action. (ECF No. 40 at 9.) They also do not contest the overlap between the two cases as

to the subject matter, issues, claims, and parties. Rather, they argue that the equities weigh

against the application of the first-to file doctrine. Plaintiffs’ argument in support of allowing

this matter to proceed in this forum centers on their claim that the District of New Jersey, where

the first-filed substantially similar case has been actively litigated for over a decade, is

“extremely congested and overburdened” and that Plaintiffs (absent class members in that case)

have been delayed enough. (Id. at 23-25.) In the Plaintiff’s opinion, the fact that the New Jersey

Action has proceeded past the motion to dismiss phase and discovery, but “has yet to have Rule

56 or Daubert motions filed or briefed, and has yet to receive a trial date” weighs in favor of

departing from the first-to-file doctrine. (Id. at 25.) Plaintiffs admit that they would have likely

elected to litigate as a class in the New Jersey Action had that court not denied class certification.

(Id. at 8.) Nonetheless, now that Defendants have “gotten what they asked for,” Plaintiffs state

that they chose to file suit before this Court where venue is more convenient for “many of the

parties” and that their choice of forum should be given substantial weight. (Id. at 8-10.)4

4 The contacts with the state of Pennsylvania that Plaintiffs argue make this venue more convenient include the fact

that three named Plaintiffs (AmerisourceBergen Co., AmerisourceBergen Drug Co., Value Drug Co.) and one

Plaintiffs bring the same claims with identical allegations against the same Defendants as

the New Jersey Action with, as stated by the Defendants in their memorandum, a cut and paste

complaint with minimal alterations or edits. (ECF No. 28-1 at 6, 11.) Both suits focus on the

same alleged anticompetitive settlement agreement with little distinction other than the named

plaintiffs. As Defendants correctly point out, the first-to-file doctrine “is not cabined to

proceedings involving identical parties and identical issues, but extends to cases where there is a

substantial overlap of the subject matter.” Synthes, Inc. v. Knapp, 978 F. Supp. 2d 450, 457

(E.D. Pa. 2013). Allowing cases to proceed in multiple jurisdictions that, though not identical,

have substantially overlapping issues and parties would encourage parties to forum shop and

bring lawsuits involving closely related issues in a court other than the one where a first-filed

action is pending. See Advanta Corp. v. Visa U.S.A., Inc., No. 96-cv-7940, 1997 U.S. Dist.

LEXIS 2007, 1997 WL 88906, at * 3 (E.D. Pa. Feb. 19, 1997). Considering the substantial

overlap, which even the Plaintiffs concede, the Court finds that the New Jersey Action and this

case are sufficiently parallel for the application of the first-to-file doctrine.

The Court also finds that Plaintiffs fail to set forth sufficient circumstances warranting

departure from the first-to-file doctrine. The District of New Jersey has a long history with

addressing the very same allegations contained within Plaintiffs complaint. Plaintiffs attempt to

minimize that history by noting that the original judge presiding over the New Jersey Action is

deceased and that the current judge is set to retire on September 8, 2023. (ECF No. 54) The

first-to-file doctrine, however, is not about the judges presiding over the case and their

Defendant (GSK) all maintain principal places of business in Pennsylvania. (ECF No. 1 at 8, 15, 26.) Plaintiffs also

state that Defendant Teva used to be headquartered in Pennsylvania until 2018 but continues to maintain a

significant presence in this state. (Id. at 15, 22.) Defendants point out that only three of the sixteen Plaintiffs are

incorporated or maintain a principal place of business in Pennsylvania, and that the first named Plaintiff—MLI Rx

LLC—is incorporated in New Jersey. (ECF No. 28 at 8.)

familiarity with the matter, but about comity, avoiding conflicting judgments, and efficient use of

judicial resources between two sister courts. Due to the significant overlapping factual and legal

issues, and the advanced stage of the New Jersey Action, this Court is particularly concerned that

both courts will be called upon to weigh in on the same issues. The presence of the substantially

similar New Jersey Action, thus, could lead to conflicting results, and the type of duplicative,

inefficient, and piecemeal litigation that the first-to-file doctrine was designed to avoid.

Plaintiffs do not dispute the potential for inconsistent or conflicting rulings but claim it

could be addressed by this Court “inviting the District of New Jersey to transfer the New Jersey

Action to this District.” (ECF No. 40 at 10.) Even if the New Jersey Action is not transferred to

this Court, Plaintiffs argue that inconsistent rulings will somehow be avoided since judgment in

this matter will be reached before the New Jersey Action without a discussion of how preclusion

issues may (or may) not impact these cases and cause additional delay. (Id.) In support of their

faster-to-judgment argument, Plaintiffs state that since fact and expert discovery in the New

Jersey Action is complete and is ready to be used in this matter, it is also “completed” here. (Id.)

Defendants have not served discovery on the Plaintiffs. And just because discovery could be

shared between the parallel actions, does not mean trial or resolution of this case would be

accomplished faster here. If judicial acceleration is what Plaintiffs seek, two intertangled

litigations in two forums may not shepherd that goal but only exacerbate delay.

Plaintiffs’ argument centers around speculative conjecture – that this Court will be faster

at resolving the parties’ dispute. Without citation to a single case, Plaintiffs argue that length of

the New Jersey Action is a reason for departure from the first-to-file doctrine. In support, they

claim that the United States District Court for the Eastern District of Pennsylvania (“Eastern

District of Pennsylvania”) has less of a backlog than the District of New Jersey without regard to

the unique nature of the New Jersey Action. First, the Court notes that the New Jersey Action

involves complex issues where two appeals were taken, including on a novel antitrust issue and

class certification. See King Drug Co. of Florence, Inc, 791 F.3d at 388 (addressing novel issue

as to whether Actavis applied to no-AG agreement); In re Lamictal Direct Purchaser Antitrust

Litig., 957 F.3d 184, 191 (3d Cir. 2020) (addressing class certification and remanding for further

proceedings). Second, while there are cases suggesting that the first-to-file doctrine should not

be used to subvert resolution of a case on the merits, those cases are distinguishable in that they

involved defendants who prevented the plaintiffs from having their day in court through

procedural windfalls or raced to the courthouse to avoid application of a forum’s adverse ruling.

See, e.g. Univ. of Pennsylvania, 850 F.2d at 971 (3d Cir. 1988) (noting that if the first-to-file

doctrine was invoked, prompt resolution would be subverted, while emphasizing the first-filer’s

attempt to sidestep precedent as a basis for departing from the rule); Kerotest Mfg. Co. C-O-Two

Fire Equip. Co., 189 F. 2d 31, 34 (3 Cir. 1951) (first-filed action dismissed because second-filed

action involved party who could not be joined in each); Crosley Corp. v. Westinghouse Electric

& Mfg. Co., 130 F. 2d 474 (3rd Cir. 1942) cert. denied, 317 U.S. 681 (1942) (where two parallel

cases were instituted one day apart, and therefore, potentially anticipatory, noting the first-to-file

rule may be defeated when the second-filed action would provide more expeditious relief).

Unlike those cases, Plaintiffs have not alleged that Defendants have attempted to tranquilize their

claims by using procedural maneuvers, forum-shopping, or by racing to courthouse. Nor have

they alleged that they could not fully litigate this matter in New Jersey.

While the Court understands the Plaintiffs concerns about lengthy litigation – and indeed

could find this argument persuasive in the appropriate case – Plaintiffs have not set forth any

compelling grounds to suggest that judicial expediency would be advanced by litigation in this

forum other than their own supposition. Most critically, the very advanced stage of the decade-

old litigation in the New Jersey Action and high risk of conflicting rulings weighs against

Plaintiffs’ judicial expediency argument. Splitting a judicial dispute between two sister courts on

each side of the Delaware river, where the first-filed case has been litigated for years, would not

lead to judicial acceleration, but rather, inefficiencies and duplication along with potentially

conflicting rulings. This is precisely the type of scenario that the first-to-file doctrine is designed

to guard against. Accordingly, this Court finds the first-to-file doctrine applies.

b. Transfer Pursuant to 28 U.S.C. § 1404(a)

In addition to their first-to-file arguments, Defendants have moved for a venue transfer to

the District of New Jersey under 28 U.S.C. § 1404(a). Plaintiffs argue that venue transfer under

Section 1404(a) is not warranted, and that the first-to-file doctrine should also be defeated after

weighing the factors that courts normally consider pursuant to this venue transfer statute.5

5 Plaintiffs’ arguments focus on utilizing the Section 1404(a) venue transfer factors to support departure from the

first-to-file doctrine. Some federal courts treat the first-to-file doctrine as one of many factors in the overall Section

1404(a) calculus. See, e.g. Research Automation, Inc. v. Schrader–Bridgeport Int’l, Inc., 626 F.3d 973, 980 (7th

Cir. 2010) (“the factors to be weighed in a first-to-file analysis are the same factors that apply to the decision of

whether transfer is appropriate under section 1404(a)”); Handy v. Shaw, Bransford, Veilleux, & Roth, 325 F.3d 346,

350 (D.C. Cir. 2003) ( “Although some courts make this determination by using the so-called ‘first-to-file’ rule, we

have emphasized that the district court must balance equitable considerations…”). Other federal courts treat the

first-to-file doctrine as a separate and distinct inquiry from a Section 1404(a) venue transfer analysis without delving

into the intricacies of that statute. See, e.g. Fuller v. Abercrombie & Fitch Stores, Inc., 370 F. Supp. 2d 686. 690-91

(“It is important to clarify that . . .[this] action is not be transferred under 28 U.S.C. § 1404(a)” but rather “pursuant

to the Court’s inherent authority under the first-to-file rule” and therefore, “expresses no opinion on whether a

transfer pursuant to § 1404(a) would be proper.”); White v. Peco Foods, Inc. 546 F. Supp. 2d 339, 340-43 (S.D.

Miss. 2008) (“a motion to transfer pursuant to the first-to-file rule does not depend on the presence or absence of the

§ 1404(a) considerations.”). The Court notes that the first-to-file and Section 1404(a) venue transfer factors, can, at

times overlap, but that case law within the Third Circuit does not appear to support the approach espoused by

Plaintiffs; rather, the rule is typically treated as a presumption that can be rebutted by a showing of special

circumstances. Cf. Univ. of Pennsylvania, 850 F.2d at 977 (noting “exceptions to the rule are rare” though it “is not a

rigid or inflexible rule to be mechanically applied”); Owen v. Nestle Healthcare Nutrition, Inc., No. 22-cv-2855,

2023 U.S. Dist. LEXIS 36638 (D.N.J Mar. 6, 2023) (applying the first-filed rule without consideration of Section

1404(a)); Synthes, Inc. v. Knapp, 978 F. Supp. 2d 450, 455 (E.D. Pa. 2013) (considering Section 1404(a) after

holding that first-filed rule applies as a separate basis for a transfer); Unlimited Tech.., Inc. v. Leighton, 266 F. Supp.

3d 787, 798 (E.D. Pa. 2017) (after declining to apply the first- filed rule, considering defendant’s anticipatory filing

to weigh against defendants’ choice of forum under Section 1404(a)). Ultimately, the Court need not resolve the

interplay between the first-to-file doctrine and Section 1404(a) since a Section 1404(a) venue transfer to the District

of New Jersey is also appropriate.

Under Section 1404(a), a district court may transfer any civil action to any other district

where it might have been brought “for the convenience of the parties and witnesses, in the

interest of justice.” 28 U.S.C. § 1404(a). Courts are afforded broad discretion to determine

whether transfer is justified under Section 1404(a). Stewart Org., Inc. v. Ricoh Corp., 487 U.S.

22, 29 (1988) (citing Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). To prevail on a motion

under Section 1404(a), the movant must generally establish: (1) an adequate alternative forum is

available; (2) the private interests of the parties weigh in favor of transfer; and (3) the public

interests weigh in favor of transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.

1995); Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970); MaxLite, Inc. v. ATG Elecs,

Inc., 193 F. Supp. 3d 371, 392 (D.N.J. 2016). There is no question that this action could be

brought in the District of New Jersey and the parties do not dispute that. Therefore, the Court

turns to an analysis of the private and public factors under Section 1404(a).

Collectively, the private and public factors weigh in favor of transfer to the District of New

Jersey. The public interest factors include: (1) enforceability of the judgment; (2) practical

considerations that could make the trial easy, expeditious, or inexpensive; (3) relative

administrative difficulties in the two fora resulting from court congestion; (4) local interests in

deciding local controversies at home; (5) public policies of the fora; and (6) the familiarity of the

trial judge with the applicable state law in diversity cases.6 Jumara, 55 F.3d at 879-80. The private

interests include: (1) plaintiff’s forum preference as manifested in the original choice; (2) the

defendant’s forum preference; (3) whether the claim arose elsewhere; (4) the convenience of the

6 Both parties argue at length about the New Jersey Action judge’s alleged familiarity (or lack thereof) with this

litigation. Under Section 1404(a), as distinguished from the first-to-file doctrine, a judge’s familiarity with the

litigation is part of the overall calculus as to whether a venue transfer is warranted. Jumara, 55 F.3d at 879-80

(emphasis added). However, that inquiry looks to the judge’s familiarity with the “applicable state law in diversity

cases.” Id. (emphasis added). Plaintiffs’ Complaint does not assert claims under any state law. Therefore, for

purposes of Section 1404(a), the Court, similar to its first-to-file analysis, finds the parties’ judge-familiarity

arguments unpersuasive, if not irrelevant to this case.

parties as indicated by their relative physical and financial condition; (5) the convenience of the

witnesses (only to the extent that the witnesses may actually be unavailable for trial in one of the

fora); and (6) the location of books and records (only to the extent that the files could not be

produced in the alternative forum). Digital Tech. Licensing LLC v. Sprint Nextel Corp., No. 07-

cv-5432, 2011 U.S. Dist. LEXIS 53904, at *3 (D.N.J. May 19, 2011); see also Jumara, 55 F.3d at

879. Importantly, the analysis is not limited to these explicitly enumerated factors, and no one

factor is dispositive, but rather, is considered on a case-by-case basis. Jumara, 55 F.3d at 879.

The Court finds that convenience and the interest of justice would not be served by permitting

this case to proceed in this Court on a duplicative, parallel track to the New Jersey Action, in light of

New Jersey’s nexus to where the Plaintiffs’ claims arose and the parties. Plaintiffs’ claims arise

out of a 2005 settlement of patent litigation in the District of New Jersey that has led to a decade

of litigation there. (ECF No. 40 at 16; ECF No. 28-1 at 17.) Defendants argue that the “center of

gravity” of Plaintiffs’ claims occurred in New Jersey, and thus, New Jersey’s stronger connection

to the operative facts supports a venue transfer. (ECF No. 53 at 15.) Plaintiffs argue, in contrast,

that this factor is neutral, alleging their claims arose nationwide because Lamictal and the generic

versions were sold across the country. To buttress their arguments, Plaintiffs allege that

Defendants’ settlement agreement was executed in the Eastern District of Pennsylvania, without

mention of where the negotiations occurred or Defendants’ conduct in New Jersey. (Id.) They

also point to another agreement containing a Pennsylvania choice of law clause without citation to

supporting case law or a discussion of how this provision might impact a Section 1404(a) transfer

analysis. (ECF No. 40 at 28.) And the cases Plaintiffs cite in support of their factual nexus

arguments are distinguishable. Those cases either involved a government-brought action with no

ties to a particular locality or alleged nationwide injuries where the only connection to the proposed

transferee court was its place as the defendant’s state of incorporation. See, e.g. United States v.

H & R Block, Inc., 789 F. Supp. 2d 74, 80 (D.D.C. 2011) (denying a transfer in antitrust suit

brought by the Department of Justice for a proposed business transaction that would have a market

impact nationwide); Teva Pharm. Indus. Ltd. v. Astrazeneca Pharms. LP, No. 08-cv-4786, 2009

U.S. Dist. LEXIS 75257, at * 17 (E.D. Pa. 2009) (denying transfer where transferee state was

where Defendant was incorporated because the “court fails to see how a patent holder’s state of

incorporation necessarily has a greater interest in a patent suit than does another state in which the

patented product is also commonly found”). Plaintiffs are all corporate entities who bring

individual claims, and not a government enforcement action as in United States v. H & R Block

Inc. or a putative class where injuries are felt by consumers nationwide. Unlike Teva Pharm.

Indus. Ltd. v. Astrazeneca Pharms. LP, where the defendant’s state of incorporation had little

bearing on the patent infringement case, Defendants’ conduct and settlement of patent litigation in

New Jersey is highly relevant to Plaintiffs’ antitrust reverse payment claims. To the extent there

are nationwide injuries by virtue of nationwide sales, that does not negate New Jersey’s substantial

nexus to the operative facts. Ultimately, the Court concludes that because much of this litigation

will likely focus on the settlement of patent litigation in New Jersey, this factor weighs in favor of

transfer.

Plaintiffs argue that this case should remain before this Court because, on average, judges

in the District of New Jersey have more pending cases than judges in the Eastern District of

Pennsylvania where the average time to trial is allegedly less than half of what it is in New Jersey.

(ECF No. 40 at 24.) The Court is unpersuaded by Plaintiffs’ court congestion arguments.

“Although the relative congestion of court dockets may be evaluated in a motion to transfer, it

generally is not a factor worthy of great weight.” Penda Corp. v. STK, LLC, Civ. No. 03-5578,

2004 U.S. Dist. LEXIS 18235, at *3 (E.D. Pa. Sept. 7, 2004); see also York Grp., Inc. v. Pontone,

No. 10-cv-1078, 2014 U.S. Dist. LEXIS 102139, at *13 (W.D. Pa. July 28, 2014) (“Court

congestion is not a decisive factor; it must be weighed against all other relevant factors, and district

courts within the Third Circuit have not placed ‘great importance’ on this factor”). Here, the

proposed transferee and allegedly more congested court, the District of New Jersey, has had a

head-start with identical litigation by a decade. The average time from filing to trial and caseload is

less of a relevant consideration as the New Jersey Action is already well advanced and this action is in

its infancy. Therefore, even assuming there is congestion disparity between the two venues, this

factor is outweighed by the efficiency of having two substantially similar cases proceed in a single

forum, the District of New Jersey, where the litigation is already underway.

The Court also finds that the weight normally afforded to Plaintiffs’ choice of forum is

diminished by the pending and substantially similar action in the District of New Jersey and the

fact that Pennsylvania is not the home forum for most of the Plaintiffs or many of the parties.

Generally, “a plaintiff’s choice of a proper forum is a paramount consideration in any

determination of a transfer request…” Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970).

However, “a plaintiff’s choice of venue is given less weight if the plaintiff chooses a venue in

which he or she does not reside and in which none of the operative facts giving rise to the suit

occurred.” Cable v. Allied Interstate, Inc., No. 12-cv-96, 2012 WL 1671350, at *3 (E.D. Pa. May

11, 2012). In terms of the parties’ connection to either forum, only one of the Defendants (GSK)

and three of the sixteen named Plaintiffs (AmerisourceBergen Co., AmerisourceBergen Drug Co.,

Value Drug Co.) have principal places of business in Pennsylvania. (ECF No. 1 at 17 & 20.) Of

those three Plaintiffs, one is a wholly owned subsidiary of another. (Id). In contrast, one of the

Defendants (Teva Pharmaceuticals USA, Inc.)7 has a principal place of business in the state of

7 Plaintiff MLI Rx LLC is incorporated in the state of New Jersey. (ECF No. 1 at 17.) Defendant Teva

Pharmaceuticals USA, Inc. (whose parent company is Israeli corporation Defendant Teva Pharmaceutical Industries

New Jersey and one of the Plaintiffs (MLI Rx LLC) is incorporated there, whereas the remaining

parties do not appear to be citizens of either state. (ECF No. 28-1 at 8.) In sum, according to

Plaintiffs’ Complaint, it appears that neither Pennsylvania nor New Jersey is the home forum for

thirteen out of the nineteen parties, while two parties reside in New Jersey and four (one of which

is a subsidiary of another) reside in Pennsylvania. Plaintiffs’ forum preference carries less weight

given that Pennsylvania is not the home forum for the majority of the Plaintiffs and, when

considering the totality of the parties’ locations, only one additional party and its subsidiary resides

in Pennsylvania versus New Jersey. In addition, given the proximity between the two venues, it

cannot be said that either forum will cause greater inconvenience to the parties in the aggregate.

It is true, as Plaintiffs argue, that when a class action is not certified, the defendants must

typically face the consequences of that by having to litigate cases involving different plaintiffs, but

similar fact patterns, in potentially different forums.8 Therefore, the Court is not saying that

Plaintiffs’ choice of forum should be given no weight. However, given the proximity of New

Jersey and its relation to the underlying claims in this lawsuit and the parties, the pending and

practically identical New Jersey Action tips the scales in favor of a transfer to the District of New

Jersey. Synthes, 978 F. Supp. 2d at 459 (presence of related case is a “powerful” factor that may

tip the scales in favor of despite other Jumara factors suggesting the opposite). This case

LTD) has a principal place of business in New Jersey. (Id. at 21.) Plaintiff Value Drug Co. is a Pennsylvania

corporation with a principal place of business also in Pennsylvania. (Id. at 20.) Plaintiff AmerisourceBergen Co.

and its wholly owned subsidiary Plaintiff AmerisourceBergen Drug Co. both have principal places of business in

Pennsylvania. (Id. at 17.) Defendant GSK has a principal place of business in Pennsylvania. (Id. at 20.)

8 While the importance of a plaintiff’s forum choice may be diminished in the class action context, the corollary of

this is that the plaintiff’s forum preference may be considered when a court declines to certify a class action. See,

e.g. Fasano v. Coast Cutlery Co., No. 11-cv-3977 SDW, 2012 WL 1715233, at *3 (D.N.J. May 15, 2012) (“…a

plaintiff's choice of forum in a class action may not be entitled to as much deference as in the ordinary case”); MP

Vista, Inc. v. Motiva Enterprises LLC, No. 07-cv-099, 2008 WL 5411104, at *2 (D. Del. Dec. 29, 2008) (same).

Nothing in this opinion should be read to imply that venue transfer is appropriate simply to consolidate a case with a

first-filed action in another forum involving claims brought by different plaintiffs where class certification has been

denied. Section 1404(a) and the principles laid out in the first-to-file doctrine are what guides this Court’s decision,

along with the length of the first-filed action and intertwined nature of the two matters.

proceeding in the District of New Jersey where a substantially similar action is pending serves the

interests of justice by avoiding inconsistent results, promoting judicial efficiency, saving witnesses

the time and expense of appearing at multiple trials, and avoiding duplicative litigation. See

Synthes, 978 F. Supp. at 459 (E.D. Pa. 2013); Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 453

(D.N.J. 1999).9 Therefore, the Court finds that the relevant private and public factors weigh in

favor of a venue transfer to the District of New Jersey under 28 U.S.C. § 1404(a).

III. CONCLUSION

For the reasons discussed above, the Court will grant Defendants’ Motion to Transfer and

Deny Defendants’ Motion to Stay. An appropriate Order will follow.

IT IS SO ORDERED.

BY THE COURT:

/s/ Hon. Kelley B. Hodge

HODGE, KELLEY B., J.

9 The other factors not discussed herein are generally neutral or not relevant with respect to advancing the interests

of justice and convenience in this case.