In Pfizer, Inc. v. Sandoz, Inc., C.A. No. 09-742-JJF (D. Del. Jan. 20, 2010), Judge Farnan explained a recent trend among Delaware ANDA plaintiffs: when jurisdiction in Delaware is not a sure thing, ANDA plaintiffs will bring suit in Delaware, and then immediately bring a second suit in another “safe” forum where jurisdiction is assured. Id. at 12. Plaintiffs feel that they must do this because, under the Hatch-Waxman Act, they have only a 45-day window in which to bring suit once they receive notice of an ANDA filing, and the statute is silent on what happens if the suit that they bring within the window is dismissed for lack of jurisdiction. Id. To be avoid that potential problem, plaintiffs have been hedging their bets by bringing two suits. Id.
In this particular case Pfizer, a Delaware corporation with its principal place of business in New York, brought an ANDA suit against Sandoz, Inc., a Colorado corporation with its principal place of business in New Jersey, but also with its primary manufacturing plant located in Colorado. Id. at 3. Pfizer first brought suit in Delaware, and then a day later brought suit in Colorado. Id. Sandoz filed answers and counterclaims for declaratory judgment in both jurisdictions, and brought the present motion to transfer to Colorado. Pfizer responded with a motion in Delaware to enjoin the declaratory judgment action in Colorado. Id.
Luckily for Pfizer, Judge Farnan seemed to understand their concerns as ANDA plaintiffs. After describing the parties’ ordinary arguments for and against Pfizer’s choice of forum, id. at 4-5, Judge Farnan explained the need, as other courts have noted, for plaintiffs to bring ANDA cases in a “safe” forum in addition to their preferred forum because of the statute’s lack of clarity. In light of that need, and because the other factors were each neutral, Judge Farnan held that Pfizer’s choice of forum takes precedence, and denied Sandoz’s motion to transfer. Id. at 6-16. Judge Farnan reserved decision on Pfizer’s motion to enjoin the declaratory judgment action in Colorado, however, pending the Colorado court’s resolution of similar motions to transfer. Id. at 16.