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Teva Pharmaceutical Industries Ltd. v. AstraZeneca Pharmaceuticals LP

August 27, 2009

TEVA PHARMACEUTICAL INDUSTRIES LTD., PLAINTIFF,
v.
ASTRAZENECA PHARMACEUTICALS LP AND IPR PHARMACEUTICALS, INC., DEFENDANTS.



The opinion of the court was delivered by: Yohn, J.

Memorandum

Plaintiff Teva Pharmaceutical Industries Ltd. ("Teva") brings this patent infringement action against defendants AstraZeneca Pharmaceuticals, LP ("AZLP") and IPR Pharmaceuticals, Inc. ("IPR").*fn1 Presently before the court is defendants' motion to strike plaintiff's jury demand. For the reasons discussed below, the court will deny the motion.

I. Facts and Procedural History

The court discussed the factual background of this case in the memorandum, dated August 24, 2009, accompanying the denial of defendants' motion to transfer venue to the District of Delaware. Accordingly, the court need only recite the facts and procedural history relevant to the instant motion. Teva filed its complaint initiating this action on October 6, 2008. The complaint featured a singe count: infringement of United States Patent No. RE 39,502 (the "'502 Patent"). The complaint did not demand a jury trial. On the civil cover sheet (Form JS-44) filed with the complaint, Teva marked "no" in the "jury demand" field.*fn2 (Defs.' Mem. Law Supp. Mot. Strike Pl.'s Jury Demand ("Defs.' Mem.") Ex. A.)

In a conference information report, dated January 26, 2009 and submitted to the court before an initial pretrial conference, Teva placed an "X" in the "non-jury" field. (Defs.' Mem. Ex. B.) Also on January 26, 2009, AZLP and IPR each filed answers, individually, to Teva's complaint. Each defendant's answer included two counterclaims that are substantively identical to the counterclaims raised in the other defendant's answer. One counterclaim seeks a declaratory judgment of noninfringement of the '502 Patent. The other counterclaim seeks a declaratory judgment of invalidity of the '502 Patent.

On January 29, 2009, the court held a pretrial conference, at which, defendants allege, "Teva's counsel orally confirmed" that this was a non-jury case. Defs.' Mem. at 5-6. In contrast, plaintiff contends that it "only confirmed that Teva had not made a jury demand in the case at that time." (Pl.'s Opp'n Defs.' Mot. Strike Pl.'s Jury Demand at 6.) No transcript or recording of this pretrial conference exists.

On February 20, 2009, plaintiff filed (and electronically served defendants with) answers to the counterclaims that defendants raised in their answers. On March 6, 2009, Teva filed (and electronically served defendants with) a demand for a jury trial on all triable issues.

II. Discussion

Rules 38 and 39 of the Federal Rules of Civil Procedure control whether, in light of the Seventh Amendment's jury right preservation, an issue is tried before a jury or a court. Rule 38 provides, in relevant part:

(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate.

(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand--which may be included in a pleading--no later than 10 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).....

(d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties ...


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