Aphena Pharma Solutions-Maryland LLC v. BioZone Laboratories, Inc.

912 F. Supp. 2d 309, 2012 WL 6201144, 2012 U.S. Dist. LEXIS 175496
CourtDistrict Court, D. Maryland
DecidedDecember 11, 2012
DocketCivil No. WDQ-12-0852
StatusPublished
Cited by29 cases

This text of 912 F. Supp. 2d 309 (Aphena Pharma Solutions-Maryland LLC v. BioZone Laboratories, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aphena Pharma Solutions-Maryland LLC v. BioZone Laboratories, Inc., 912 F. Supp. 2d 309, 2012 WL 6201144, 2012 U.S. Dist. LEXIS 175496 (D. Md. 2012).

Opinion

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Aphena Pharma Solutions-Maryland LLC (“Aphena”) sued BioZone Laboratories, Inc. (“BioZone”), BioZone Pharmaceuticals, Inc. (“BioZone Pharmaceuticals”), and Daniel Fisher (collectively “defendants”) for contract and fraud claims. Pending are Fisher’s motion to dismiss for lack of personal jurisdiction and the defendants’ motion to transfer the case to the U.S. District Court for the Northern District of California. Also pending is Aphena’s motion for leave to file a surreply to the motion to dismiss. For the following reasons the defendants’ motion to transfer will be granted, and Fisher’s motion to dismiss for lack of personal jurisdiction will be denied as moot. Leave will not be granted to Aphena to file a surreply.

I. Background1

Aphena, a Delaware LLC formerly known as Celeste Packaging LLC,2 has its sole production facility in Easton, Maryland, where it employs 176 people. ECF No. 39-1 at 2 ¶ 2-3. The sole member of Aphena is Aphena Pharma Solutions Holdings, Inc., formerly known as Prepak Holdings, Inc. (“Prepak”), a Delaware corporation with a principal place of business in Tennessee.3 Aphena is managed by George Galagno in Maryland. See ECF Nos. 39-1 at 1 ¶ 1, 39-2 ¶ 14.

BioZone is a California corporation, with its principal place of business in California, founded by Fisher and Dr. Brian Keller in 1989. ECF No. 28-6 ¶ 3. Fisher served as BioZone’s president until early 2012. Id. ¶ 4. BioZone Pharmaceuticals, a Nevada corporation with its principal place of business in Florida, agreed to purchase Bio-Zone on June 30, 2011. ECF No. 39-3 at 9, 11. Fisher has lived in California for over 60 years. ECF No. 28-6 ¶2. His only physical presence in Maryland was two, two-day vacations. Id. ¶ 21.

The transaction that gave rise to this case began when Russ Haines in New Jersey called Fisher on behalf of Prepak4 to express Prepak’s interest in purchasing [313]*313BioZone. See id. ¶ 5; ECF No. 36 ¶ 6. The final transaction was Aphena’s purchase of formulations for private label cough and cold products from BioZone.5 See ECF No. 1 ¶ 6.

In negotiating the deal with Aphena, Fisher participated in several phone calls involving Bob Patel, John Allen, and Safee Chaudhri, all in Maryland; Brett Fliegler in New York; Dan Huggins in New Jersey or Tennessee; and Bob Allen in Tennessee. See ECF No. 36 ¶¶8, 10. Fisher also sent to and received from Fliegler and Huggins emails on which Patel and Allen were copied. Id. ¶¶ 5, 9. The price quotations for the transactions were sent to Dan Huggins at Prepak in New Jersey. Id. ¶ 4; ECF No. 28-6 ¶ 14. Fisher also communicated directly with Allen about the logistics of the transaction. ECF No. 28-6 ¶ 17-18.

In April 2010, Fisher sent an email directly to Huggins, Patel, Safee, and Taylor about Aphena personnel’s upcoming trip to California, arranged by Haines, to meet with Fisher and other BioZone representatives. ECF No. 36 ¶ 7. There were three meetings in California. ECF No. 28-6 ¶¶ 7-9.

During the negotiations, Fisher was informed that Aphena was in Maryland, the agreement was to be delivered to Maryland, only the Maryland facility could manufacture the formulations, and the project would be managed by Aphena’s Maryland employees. ECF No. 39-2 ¶ 9. Formulations and related materials provided by BioZone were delivered to Maryland. Id. at 3 ¶ 7.

After the negotiations, all was not well between Aphena and BioZone. In late summer and early, fall 2010, Fisher contacted Patel directly about Aphena’s failure to pay. ECF No. 28-6 ¶ 20. Aphena alleges that BioZone failed to deliver the formulations on time; when, delivered, they did not meet the proper standards. ECF No. 1 ¶¶ 112-19. Aphena also alleges that it was forced to recall all products made from BioZone’s work because of deficiencies. Id. ¶ 166.

On March 19, 2012, Aphena sued BioZone, BioZone Pharmaceuticals, and Fisher for (1) breach of contract, (2) — (3) fraud in the inducement, (4) — (5) intentional misrepresentation,. (6) negligent misrepresentation, (7) negligent hiring, and (8) unjust enrichment. ECF No. 1. On May 21, 2012, BioZone and BioZone Pharmaceuticals answered. ECF No. 29. The same day, Fisher moved to dismiss for lack of personal jurisdiction.6 ECF No. 28. On May 30, 2012, the defendants moved to transfer the case to the Ú.S. District Court for the Northern District of California under 28 U.S.C. § 1404. ECF No. 35. On June 18, 2012, Aphena filed a consolidated response to the motions. ECF No. 39. On July 9, 2012, the defendants replied. ECF Nos. 40, 41.

On July 19, 2012, Aphena moved for leave to filé a surreply to Fisher’s motion to dismiss. ECF No. 43. On July 30, 2012, Fisher responded, ECF No. 44, arid on August 9, 2012, Aphena replied, ECF No. 45.

II. Analysis

A. Leave to File Surreply

Aphena seeks leave to file a surreply to Fisher’s motion to dismiss because Fish[314]*314er — for the first time in his reply — relied on the incorrect standard’for adjudication of his motion. ECF No. 43 at 2. Fisher asserts that the standard he articulated is correct. ECF No. 44 at 2.

Unless otherwise ordered by the Court, a party may not file a surreply. Local Rule 105.2(a) (D.Md. 2012). Leave to file a surreply may be granted when the movant otherwise would be unable to contest matters presented in the opposing party’s reply. Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md.2003), aff'd 85 Fed.Appx. 960 (4th Cir.2004).

Fisher had not addressed the legal standard for the dismissal in his motion, but Aphena presented its view of the standard in its opposition. See ECF No. 39 at 27. Fisher then presented his argument on the standard"in his reply. ECF No. 40 at 10. As such, the standard was not first raised in the reply. Aphena had the first word on what standard the Court should use. Cf. Khoury, 268 F.Supp.2d at 605. As both sides of the argument have been presented, the motion will be denied.

B. Personal Jurisdiction

1. Legal Standard

Aphena asserts that it need make only a prima facie showing of personal jurisdiction. ECF No, 39 at 27. Fisher argues that the summary judgment standard applies under Fed.R.Civ.P. 12(d). ECF No. 40 at 10.

The party asserting the claim has the burden of proving personal jurisdiction. See Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). If jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing,- or may defer ruling until receiving, at trial, evidence relevant to jurisdiction. Id. If the court determines the issue without-an evidentiary hearing, and relies only on the complaint, affidavits, and discovery materials, “the plaintiff need only make a prima facie

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912 F. Supp. 2d 309, 2012 WL 6201144, 2012 U.S. Dist. LEXIS 175496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aphena-pharma-solutions-maryland-llc-v-biozone-laboratories-inc-mdd-2012.