Thompson et al v. Medtronic et alMOTION to Dismiss for Lack of JurisdictionW.D. Tenn.February 6, 2017IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DISVISION DARRELL K. THOMPSON, WILLIAM T. HOLT, DECEASED, LEATHA J. HOLT, NEXT OF KIN AND NEWAIR MANUFACTURING, LLC Plaintiff, v. MEDTRONIC, INC., PHYSIO-CONTROL INTERNATIONAL, INC., PHYSIO- CONTROL, INC., JOLIFE AB/PHYSIO- CONTROL, BAIN CAPITAL, INC., and STRYKER CORPORATION Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:16-cv-03013-JPM-tmp DEFENDANTS STRYKER CORPORATION, PHYSIO-CONTROL INTERNATIONAL, INC., PHYSIO-CONTROL, INC., AND JOLIFE AB’S MOTION TO DISMISS Defendants Stryker Corporation, Physio-Control International, Inc., Physio-Control, Inc., and Jolife AB (the “Stryker Defendants”), move this Court pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6) to dismiss this action in its entirety. The bases for dismissal are: (1) the Stryker Defendants are not subject to personal jurisdiction in Tennessee; and (2) Plaintiffs have not stated claims for relief for correction of inventorship or unjust enrichment. These grounds for the Stryker Defendants’ motion to dismiss are more fully set forth in the accompanying memorandum in support. Case 2:16-cv-03013-JPM-tmp Document 23 Filed 02/06/17 Page 1 of 3 PageID 126 DATE: February 6, 2017 LEWIS, THOMASON, KING, KRIEG & WALDROP, P.C. By: /s/ Christopher L. Vescovo CHRISTOPHER L. VESCOVO (14516) 2900 One Commerce Square 40 South Main Street Memphis, TN 38103 (901) 525-8721 cvescovo@lewisthomason.com Attorneys for Defendants Stryker Corporation, Physio-Control International, Inc., Physio-Control, Inc., and Jolife AB. SHOOK, HARDY & BACON LLP (APPLICATIONS FOR ADMISSION PRO HAC VICE TO BE SUBMITTED) B. Trent Webb, by special appearance John D. Garretson, by special appearance Lynn C. Herndon, by special appearance 2555 Grand Boulevard Kansas City, Missouri 64108-2613 T: 816.474.6550 F: 816.421.5547 bwebb@shb.com jgarretson@shb.com lherndon@shb.com Case 2:16-cv-03013-JPM-tmp Document 23 Filed 02/06/17 Page 2 of 3 PageID 127 CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served upon the following listed persons, via the Court’s ECF system, this the 6th day of February, 2017: Larry E. Fitzgerald FITZGERALD, HARRIS & FITZGERALD 44 N. Second, Suite 201 Memphis, TN 38103 Attorney for Plaintiff Leo M. Bearman Robert F. Tom Nicholas Vescovo BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC 165 Madison Avenue, Suite 2000 Memphis, TN 38103 and Annie T. Christoff Andrew J. Rittenhouse BASS, BERRY & SIMS, PLC 100 Peabody Place, Suite 1300 Memphis, TN 38103 Attorneys for Defendant, Bain Capital, Inc. Sharon E. Roberg-Perez Martin R. Lueck David A. Prange ROBINS KAPLAN LLP 800 LaSalle Avenue Minneapolis, MN 55402 Attorneys for Defendant Medtronic, Inc. /s/ Christopher Vescovo Christopher Vescovo 7142846 Case 2:16-cv-03013-JPM-tmp Document 23 Filed 02/06/17 Page 3 of 3 PageID 128 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DISVISION DARRELL K. THOMPSON, WILLIAM T. HOLT, DECEASED, LEATHA J. HOLT, NEXT OF KIN AND NEWAIR MANUFACTURING, LLC Plaintiff, v. MEDTRONIC, INC., PHYSIO-CONTROL INTERNATIONAL, INC., PHYSIO- CONTROL, INC., JOLIFE AB/PHYSIO- CONTROL, BAIN CAPITAL, INC., and STRYKER CORPORATION Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:16-cv-03013-JPM-tmp MEMORANDUM IN SUPPORT OF DEFENDANTS PHYSIO-CONTROL INTERNATIONAL, INC., PHYSIO-CONTROL, INC., JOLIFE AB, AND STRYKER CORPORATION’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. RULE 12(b)(2) AND 12(b)(6) Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 1 of 23 PageID 129 1 I. INTRODUCTION This is an action for alleged correction of patent inventorship and unjust enrichment. Defendants Physio-Control International, Inc., Physio-Control, Inc., Jolife AB, and Stryker Corporation (collectively, the “Stryker Defendants”) move pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiffs’ November 30, 2016 Complaint (“Complaint”), which was subsequently removed to this Court on December 29, 2016. The Stryker Defendants are not subject to personal jurisdiction in Tennessee. Even if this Court exercises personal jurisdiction, Plaintiffs have not stated a claim for relief. Plaintiffs’ unjust enrichment claim is preempted by federal patent law. Further, Plaintiffs have not sufficiently pleaded a claim for correction of inventorship. At the outset, Plaintiffs’ factual allegations do not support the exercise of personal jurisdiction. None of the Stryker Defendants is incorporated, headquartered, or otherwise conducts “continuous and systematic” operations in Tennessee, such that Tennessee is a “home” sufficient for general jurisdiction. The Complaint is also silent regarding any alleged actions, events, or omissions by the Stryker Defendants that could otherwise support the exercise of specific jurisdiction. Thus, the Court should dismiss this case against the Stryker Defendants for lack of personal jurisdiction. Should this Court nevertheless exercise personal jurisdiction, the Complaint fails to state a claim for relief. Plaintiffs’ “billion-dollar” claim for unjust enrichment is preempted by federal patent law. It seeks relief stemming solely from an underlying demand for correction of inventorship, which is a federal, equitable cause of action. Plaintiffs’ demand to be named “at least co-inventor” of a patent also fails to state a claim, because it fails to properly allege that: (1) Plaintiffs contributed an invention; and (2) there was a collaboration between Plaintiffs and the Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 2 of 23 PageID 130 2 inventors named on the patent. Therefore, the Court should grant the Stryker Defendants’ motion to dismiss Plaintiffs’ Complaint in its entirety. II. BACKGROUND Plaintiffs seek to alter the inventorship of U.S. Patent No. 7,841,996 (the “‘996 patent”). The named inventors of the ‘996 patent are Peter Sebelius and Martina Rosell. At the time of the ‘996 patent’s filing, both inventors worked for Jolife AB. In April 2016, Jolife AB, Physio- Control International, Inc., and Physio-Control, Inc. all became indirect subsidiaries of Stryker Corporation.1 Plaintiffs claim they are entitled to be named co-inventors of the ‘996 patent based on their own patented technology, as well as undefined information they allegedly gave to Defendant Medtronic, Inc. (“Medtronic”)in 2002.2 Plaintiffs assert this information was used to file the patent application that ultimately issued as the ‘996 patent. The Complaint alleges that one of the Plaintiffs, Mr. Thompson, invented a CPR device to aid persons experiencing cardiac arrest.3 Specifically, the Complaint alleges that “during a public presentation” on March 23, 2002, a representative from Medtronic solicited Mr. Thompson about this CPR device.4 Notably, information about Plaintiffs’ alleged invention had already been available to the public for more than a decade, since a patent they filed issued in 1991.5 They had also filed another patent application on March 22, 2002, one day before their 1 See Doc. No. 1, at 4. 2 Doc. No. 1-2, Compl. at ¶¶ 13, 16. 3 Doc. No. 1-2, Compl. at ¶ 13. 4 Id. 5 Id. at ¶ 16 (referring to U.S. Patent No. 5,009,226, “filing on May 14, 1990,” and issuing on April 23, 1991. Though not attached to the pleadings, the Court may take judicial notice that the face of the patent shows this issuance date. See Ronald A. Katz Tech. Licensing, L.P. v. FedEx Corp., Case No. 2:15-cv-02329-JPM-tmp, 2016 WL 1179218, at *3 (W.D. Tenn. Mar. 24, 2016). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 3 of 23 PageID 131 3 public presentation.6 Plaintiffs concede they “did not enter into any non-disclosure agreement or other formal contractual relationship with Medtronic, Inc., but felt that there was an implied contractual agreement,” based on the solicitation at the public presentation and the undefined “confidentiality documentation” Thompson unilaterally sent to Medtronic subsequent to the public presentation.7 Nine years later, Plaintiffs began inquiring about the information they supposedly sent to Medtronic in 2002.8 Through this investigation, Plaintiffs allege that they learned that “Medtronic received a US Patent,” referring to the ‘996 patent. Plaintiffs also allege that some of the inventions found in the claims of the ‘996 patent were conceived by them,9 and were already patented in Plaintiffs’ own patent, U.S. Patent No. 6,988,499 (the “‘499 patent”)10 and/or were based on the admittedly non-confidential information disclosed to Medtronic in 2002.11 Plaintiffs’ Complaint contains two counts: (1) correction of inventorship, pursuant to 35 U.S.C. § 256; and (2) unjust enrichment.12 In their inventorship count, Plaintiffs allege that Mr. 6 Id. (referring to the patent application that issued as U.S. Patent No. 6,988,499). The ‘499 patent application was published on September 25, 2003. 7 Id. at ¶¶ 14-16, 31. 8 Id. at ¶¶ 18-22. 9 Id. at ¶¶ 32-43. 10 Id. at ¶¶ 41 (comparing claim 2 of the ‘499 patent to claims 4, 11, 12, 13, and 14 of the ‘996 patent). 11 Id. at ¶ 14. 12 Id. at ¶¶ 46-52. Plaintiffs titled their pleading “Complaint for Breach of Contract, Misappropriation of Trade Secrets, and Unjust Enrichment,” but failed to include counts (or any substantive, detailed allegations) with respect to breach of contract or trade secret misappropriation. Compare id., ¶ 2 (suggesting breach of contract), with ¶ 14 (conceding nonexistence of a contract). To the extent the Complaint is deemed to somehow present such claims, or any additional claims, they are insufficiently pleaded under the Supreme Court’s Iqbal and Twombly decisions and should be dismissed. See Section IV(A), infra. Further, to the extent such claims are allegedly directed towards the Stryker Defendants, and are addressed on substantive grounds in any other Defendant’s motion to dismiss, the Stryker Defendants similarly seek dismissal on such grounds. Finally, with respect to Plaintiffs’ allegations of unjust enrichment, Plaintiffs do not identify the specific law under which they seek relief. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 4 of 23 PageID 132 4 Thompson “should have been at least co-inventor of the [‘996 patent], as he conceived of every element of at least many, if not all of, the independent claims in that patent.”13 Accordingly, the Complaint seeks an order “correcting inventor-ship of the [‘996 patent] by either [sic] naming plaintiff at least as a co-inventor of the [‘996 patent].”14 Plaintiffs’ unjust enrichment claim purports to seek one billion dollars in damages for the fair value of an assignment of their ownership interest or an exclusive license to the ‘996 patent.15 For the Stryker Defendants, Plaintiffs allege only the following facts with respect to jurisdiction: 7. Physio-Control headquartered in Redmond, Washington is the global leader in professional emergency response products and services. 9. Stryker Corporation headquartered in Kalamazoo, MI is a global leader in the medical technology industry. 10. Jurisdiction exists in State Court because many of the actins [sic] complained of occurred in Memphis, TN. 11. This is also the judicial district in which a substantial part of the events and omissions giving rise to the claims occurred. Venus [sic] is proper in this judicial district by virtue of 28 U.S.C. && [sic] 1391 (a), (b) and (c) and 1400 (b) because Defendant is subject to personal jurisdiction in this District. (Doc. No. 1-2, at ¶¶ 7, 9-11.) No jurisdictional allegations are provided for Jolife AB, which is a Swedish company. The Complaint contains no allegations of any acts or activities by the Stryker Defendants in Tennessee. Plaintiffs allege that Mr. Thompson had two phone conversations with a “Medtronic/Physio-Control” employee in November 2011 and November 2012, a decade after Plaintiffs’ initial interactions with Medtronic.16 None of these conversations are alleged to have been about patents, Plaintiffs’ alleged invention, or the disclosure of any information by Plaintiffs. 13 Id. at ¶ 48. 14 Id. at ¶ 49. 15 Id. at ¶¶ 51-52. 16 Id. at ¶¶ 19, 21. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 5 of 23 PageID 133 5 III. THE EXERCISE OF PERSONAL JURISDICTION AGAINST THE STRYKER DEFENDANTS IS IMPROPER A. Legal Standard for Motions to Dismiss Pursuant to 12(b)(2) Federal Circuit law applies to the determination of personal jurisdiction in patent cases.17 This analysis involves a two-step process. First, the Court must determine whether the forum state’s long-arm statute authorizes jurisdiction. Second, the Court must determine whether the exercise of jurisdiction is consistent with federal due process.18 As the Federal Circuit has previously held, “[b]ecause Tennessee’s long-arm statute is coterminous with the due process limitations . . . the jurisdictional issue in this case turns on whether the court’s exercise of jurisdiction would be consistent with the requirements of due process.”19 More particularly, the Court must decide whether the Stryker Defendants have sufficient “minimum contacts” in Tennessee such that maintenance of the suit would not offend “traditional notions of fair play and substantial justice.”20 The analysis first considers whether “minimum contacts” exist to support a finding of either “general jurisdiction” or “specific jurisdiction.”21 In addition, a plaintiff must show that the assertion of personal jurisdiction under the circumstances is reasonable and fair.22 B. The Stryker Defendants are not Subject to General Jurisdiction Because They are Not “At Home” in Tennessee General jurisdiction arises from a party’s contacts with the forum unrelated to the litigation. The test for general jurisdiction is whether the party has maintained “continuous and 17 Grober v. Mako Prod., Inc., 686 F.3d 1335, 1345 (Fed. Cir. 2012); Pennington Seed, Inc. v. Prod. Exchange No. 299, 457 F.3d 1334, 1338 (Fed. Cir. 2008). 18 Pennington Seed, 457 F.3d at 1343-44. 19 Radio Sys. Corp., v. Accession, Inc., 638 F.3d 785, 789 (Fed. Cir. 2011) (internal citations omitted); see TENN. CODE ANN. § 20-2-214. 20 Int.’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 21 See e.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 410-11 (1984). 22 Breckrenridge Pharm., Inc. v. Metabolite Labs, Inc., 444 F.3d 1356, 1363 (Fed. Cir. 2006); see also Burger King Corp. v. Rudzewicz, 471 U.S. 426, 476-77 (1985). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 6 of 23 PageID 134 6 systematic” contacts with the forum state sufficient to find that the exercise of jurisdiction would be fair in that forum.23 A defendant must have “continuous corporate operations within a state . . . so substantial and of such a nature as to justify suit . . . on causes of action arising from dealing entirely distinct from those activities.24 This test is not merely quantitative, but considers whether the defendants’ contacts with the forum state are such that the non-resident can be said to be “essentially at home in the forum State.”25 “With respect to a corporation, the place of incorporation and principal place of business are ‘paradig[m] . . . bases for general jurisdiction.’”26 In the recent Daimler case, the Supreme Court found it “unacceptably grasping” that a court could exercise general jurisdiction “in every State in which a corporation ‘engages in a substantial, continuous, and systematic course of business.’”27 Here, none of the Stryker Defendants is incorporated in Tennessee, nor do they maintain their respective principal places of business in Tennessee. As the Complaint correctly alleges, Physio-Control is headquartered in Washington and Stryker is headquartered in Kalamazoo, Michigan.28 The Complaint contains no allegations regarding Jolife’s location.29 Nor are there any allegations regarding any of the Stryker Defendants’ business activities in or contacts with Tennessee. Instead, the Complaint simply states that Physio-Control and Stryker are “global 23 Helicopteros, 466 U.S. at 414-16. 24 International Shoe, 326 U.S. at 318. 25 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). 26 Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). 27 Id. at 761 (reversing lower court exercise of general jurisdiction over defendants that were neither incorporated nor headquartered there). 28 Doc. No. 1-2, Compl. ¶¶ 7, 9. Notably, the Complaint identifies two Physio-Control entities - Physio-Control International, Inc. and Physio-Control, Inc. Yet the Complaint’s allegations only refer to “Physio-Control” collectively. See Doc. No. 1-2 ¶ 7. Physio- Control International, Inc.’s principal place of business is in Tumwater, Washington; Physio-Control, Inc.’s principal place of business is in Redmond, Washington. See Doc. No. 1 ¶¶ 13-14. 29 Jolife AB is an indirect subsidiary of Physio-Control, Inc., and is located in Lund, Sweden. See Doc. No. 1 ¶ 15. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 7 of 23 PageID 135 7 leaders” in their respective fields.30 But in Daimler, the Supreme Court expressly rejected this type of veiled attempt at “all-purpose” jurisdiction: [T]he same global reach would presumably be available in every other State in which [the defendants’] sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants “to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.”31 Here, Plaintiffs’ conclusory allegations that certain of the Stryker Defendants are “global leaders” does not support a finding of general jurisdiction. In Daimler, as in this case, none of the defendants was incorporated in the forum state, nor did either entity have its principal place of business there.32 Because none of the defendants was “essentially at home in the forum State,” they could not be subject to suit under the auspices of general jurisdiction.33 Here, the Stryker Defendants are respectively located and incorporated in Washington, Michigan, and Sweden. None can be said to be “essentially at home” in Tennessee. Nor can the Court properly exercise general jurisdiction over them.34 The Complaint does not allege any other “continuous corporate operations within” Tennessee, or any “continuous and systematic” contacts to alter this conclusion. Accordingly, no sufficient minimum contacts exist to support general jurisdiction. 30 See e.g., Doc. No. 1-2 ¶¶ 7, 9. 31 Daimler, 134 S. Ct. at 761-62 (quoting Burger King Corp., 471 U.S. at 472). 32 Id. at 761. 33 Id. at 762 (finding lower court error). 34 See Goodyear, 131 S. Ct. at 2857 (finding foreign subsidiaries could not be subject to the general jurisdiction of the State’s court because they were “in no sense at home” in the forum State). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 8 of 23 PageID 136 8 C. The Stryker Defendants are Not Subject to Specific Jurisdiction Because the Complaint Does Not Allege a Nexus Between Any Defendant’s Acts and the Claims Presented For specific jurisdiction to exist, the cause of action must arise directly out of or be directly related to a defendant’s contacts with the forum.35 “Specific jurisdiction . . . depends on an ‘affiliation between the forum and the underlying controversy,’ principally, activity or an occurrence that takes place in the forum State.”36 Accordingly, to establish minimum contacts for purposes of specific jurisdiction in a patent case, a plaintiff must demonstrate that: “(1) the defendant purposefully directed its activities at residents of the forum, (2) the claim arises out of or relates to those activities, and (3) assertion of personal jurisdiction is reasonable and fair.”37 “Purposeful availment exists where the defendant’s contacts with the forum state ‘proximately result from actions by the defendant himself that create a substantial connection with the forum state.’”38 For an inventorship claim, “activities that may create jurisdiction are constrained to those activities relating to the issuance of the patent-in-suit.”39 The Complaint fails to identify any acts committed by the Stryker Defendants in Tennessee related to Plaintiffs’ asserted inventorship or unjust enrichment claims. The only allegation leveled against Stryker Corporation relates to its purchase of Physio-Control and Jolife AB in April 2016.40 This act has no relation whatsoever to Tennessee residents. Nor does it 35 Helicopteros, 466 U.S. at 410. See also Goodyear, 131 S. Ct. at 2853 (“Adjudicatory authority is ‘specific’ when the suit ‘aris[es] out of or relate[s] to the defendant’s contact with the forum.” (quoting Helicopteros, 466 U.S. at 414)). 36 Goodyear, 131 S. Ct. at 2851 (citations omitted). 37 Avocent Huntsville Corp. v. Aten Int’l Co., 552 F.3d 1324, 1332 (Fed. Cir. 2008) (citations omitted). 38 Harris v. Lloyds TSB Bank, PLC, 281 Fed. Appx. 489, 494-95 (Fed. Cir. 2008) (emphasis in original) (citation omitted). 39 Ali v. Carnegie Inst. Of Washington, 967 F. Supp. 2d 1367, 1390 (D. Or. 2013) (emphasis in original) (citing Acromed Corp. v. Sofamor Danek Grp., Inc., 253 F.3d 1371, 1379 (Fed. Cir. 2001)). 40 Doc. No. 1-2 ¶ 17. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 9 of 23 PageID 137 9 regard “activities relating to the issuance of the patent-in-suit”, which occurred in 2010.41 Rather, this purchasing conduct occurred almost 15 years after the events alleged in the Complaint, and more than five years after the ‘996 patent issued. This alone demonstrates that specific jurisdiction does not exist as to Stryker Corporation. Plaintiffs’ allegations directed to Physio-Control’s and Jolife AB’s alleged acts have no relation to this forum either. The crux of Plaintiffs’ claims is that the ‘996 patent allegedly contains Plaintiffs’ alleged invention.42 The Complaint surmises that a representative from Defendant Medtronic, in or around 2002-2003, shared Plaintiffs’ admittedly non-confidential letters43 and otherwise public information44 with Physio-Control and/or Jolife AB.45 The Complaint draws the conclusion that the named inventors of the ‘996 patent, who were Jolife AB employees, “had access to - and likely studied - the Thompson’s [sic] letters . . . .”46 Plaintiffs also allege that a “Medtronic/Physio Control Representative” in Washington spoke to Plaintiff Thompson in 201147 and 2012.48 This was almost a decade after Mr. Thompson purportedly met with a Medtronic representative about his alleged inventions, and a year after the ‘996 patent issued. Plaintiffs also identify several former and current Physio-Control employees, and a description of their alleged employment background with various Defendants.49 41 See Ali, 967 F. Supp. 2d at 1390. 42 See e.g., Doc. No. 1-2 ¶¶ 32, 33, 35, 44. 43 See Doc. No. 1-2 ¶ 14 (“Thompson concedes that he and the Plaintiffs did not enter into any non-disclosure agreement or other formal contractual relationship with Medtronic, Inc. . . .”). 44 See Doc. No. 1-2 ¶¶ 16, 30 (referring to Plaintiffs’ published patent application as the source of the inventions disclosed in the patent for which Plaintiffs wish to be named inventors). 45 Doc. No. 1-2 ¶ 15. 46 Doc. No. 1-2 ¶ 44. 47 Doc. No. 1-2 ¶ 19. 48 Doc. No. 1-2 ¶ 21. 49 See e.g., Doc. No. 1-2 ¶¶ 23-29. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 10 of 23 PageID 138 10 These allegations, even if true, do not support exercising specific jurisdiction over Jolife AB or the Physio-Control defendants. There are no allegations that either Physio-Control or Jolife AB committed acts in, directed to, or knowingly caused an injury felt in Tennessee. The only allegation directed to Jolife AB is that its inventors “likely studied” Plaintiffs’ alleged invention, based on alleged access provided by Medtronic. This allegation has no ties to Tennessee. Apart from this conclusory and speculative allegation, there is no indication in the Complaint that the Jolife AB inventors were ever aware of Plaintiffs or their alleged invention. Indeed, they worked for a completely different company in Europe. Thus, the Complaint has not alleged sufficient minimum contacts or purposeful availment activities to support specific jurisdiction over Jolife AB in Tennessee. For the Physio-Control defendants, the only allegation that could be remotely related to Tennessee is that a “Medtronic/Physio-Control” employee spoke with Mr. Thompson twice, in 2011 and 2012. First, this interaction is not activity “relating to issuance of the patent-in-suit,” having occurred almost a decade after Mr. Thompson allegedly provided his invention to a Medtronic representative and a year after the ‘996 patent issued.50 Second, Plaintiffs allege that Mr. Thompson initiated any communications with Physio-Control. Such contacts are not “actions by the defendant himself” sufficient to create a substantial connection with the forum state.51 Thus, the absence of any ties to Tennessee warrants not exercising personal jurisdiction over the Stryker Defendants. 50 Ali, 967 F. Supp. 2d at 1390. 51 See Harris, 281 Fed. Appx. at 495 (reversing lower court finding of specific jurisdiction, reasoning that “all of [the defendant’s] communications were in response to communications initiated by [the plaintiff] and others in Tennessee). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 11 of 23 PageID 139 11 D. Other Considerations Support a Finding That Jurisdiction Against the Stryker Defendants is Improper in Tennessee Even if the Court were to find that sufficient “minimum contacts” exist to support a finding of personal jurisdiction, “other considerations render the exercise of jurisdiction so unreasonable as to violate ‘fair play and substantial justice.’”52 As Plaintiffs’ allegations themselves indicate, the Stryker Defendants have had no meaningful contact with Tennessee. It would be unduly burdensome for them to defend this suit in Tennessee, based on facts that allegedly occurred almost fifteen years ago. Further, because the Stryker Defendants have not engaged in any activities in Tennessee related to Plaintiffs’ causes of action, Tennessee has no legitimate interest in the outcome of those claims. Finally, Plaintiffs’ interest in the case does not outweigh other factors. The system maintains a proper level playing field for all, and certain requirements must be met before suits may be maintained. That includes the requirement that it is fair for a defendant to be “haled” into the forum court. Such is not the case here. Accordingly, this action against the Stryker Defendants should be dismissed for lack of personal jurisdiction. IV. THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER 12(b)(6) A. Legal Standard for a Rule 12(b)(6) Motion A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”53 To survive dismissal pursuant to Rule 12(b)(6), a claim must contain sufficient factual matter to “state a claim to relief that is plausible on its face.”54 Though 52 Deprenyl Animal Health, Inc. v. The Univ. of Toronto Innovations Found., 297 F.3d 1343, 1351 (Fed. Cir. 2002) (quotation omitted). 53 Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 54 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 12 of 23 PageID 140 12 a court must “construe the complaint in the light most favorable to the plaintiff,”55 the tenet that a court must accept all allegations as true is inapplicable to legal conclusions.56 A complaint “must include more than ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action,’ and instead proffer ‘enough facts to state a claim to relief that is plausible on its face[].’”57 B. Plaintiffs’ Unjust Enrichment Claim is Preempted by Federal Patent Law Regardless of whether Plaintiffs have stated a claim for unjust enrichment,58 the relief Plaintiffs request is preempted by the Patent Act. Federal Circuit law governs whether federal patent law preempts a state law claim.59 Conflict preemption occurs when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.60 “Federal law preempts state law that offers ‘patent-like protection’ to discoveries unprotected under federal patent law.”61 A state cause of action that frustrates these objectives is preempted.62 Under 35 U.S.C. § 262, “each of the joint inventors of a patent may make, use, offer to sell, or sell the patented invention . . . without the consent of and without accounting to the other 55 Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir. 2012) (quotation omitted). 56 Iqbal, 445 U.S. at 678. 57 Twombly, 550 U.S. at 555. 58 A plaintiff must plead three elements of an unjust enrichment claim: 1) a benefit conferred to defendant by the plaintiff; 2) the defendant’s appreciation of the benefit; and 3) the defendant’s acceptance of the benefit under circumstances making it inequitable for him to retain the benefit without payment to the plaintiff of its value. See Morehead v. CitiMortgage, Inc., No. 3:14-cv-00475, 2014 U.S. Dist. LEXIS 105910, at *17 (M.D. Tenn. July 31, 2014); Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005). 59 Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1376 (Fed. Cir. 2005). 60 Id. at 1377. 61 Id. at 1377-78 (quoting Bonnino Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 156 (1989)); Univ. of Colo. Found., Inc. v. Am. Cyanamid Co., 342 F.3d 1298, 1306 (Fed. Cir. 2003). 62 Id. at 1378. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 13 of 23 PageID 141 13 owners.” (emphasis added.) In other words, “joint inventors of a patent are not entitled to an accounting from one another for use or sale of a joint patent.”63 And an alleged unnamed inventor “cannot sidestep § 262 through an unjust enrichment claim; such a claim is preempted because ‘it stands as an obstacle to the accomplishments and execution of the full purposes and objectives of Congress’ in enacting § 262.”64 Plaintiffs’ unjust enrichment claim is derivative of and dependent on its inventorship cause of action. Both claims seek to have Mr. Thompson named as a co-inventor on the ‘996 patent.65 Plaintiffs’ unjust enrichment claim complains that Defendants are enjoying the patent exclusivity of Plaintiffs’ alleged invention “without naming Thompson as a co-inventor.”66 Further, Plaintiffs pray for the fair value of the ‘996 patent, stating they are entitled to payment “for either an assignment of their ownership interest in the [‘996] patent or for an exclusive license there under the value of the invention.”67 Clearly, Plaintiffs seek to require the Defendants to account for any profits they have realized from use of the ‘996 patent, and from selling products embodying its inventions.68 Such a claim would effectively prohibit the Defendants from freely practicing the ‘996 patent without 63 Ultra-Precision Mfg. v. Ford Motor Co., Case No. 01-70302, 2003 WL 24146874, at *2 (E.D. Mich. Sept. 24, 2003) (ruling nunc pro tunc that unjust enrichment claim was preempted by § 262), aff’d, Ultra-Precision, 411 F.3d 1369. 64 Tavory v. NTP, Inc., 297 Fed. Appx. 976, 983 (Fed. Cir. 2008). 65 Doc. No. 1-2, Compl. at ¶¶ 48 (“plaintiff should have been at least co-inventor”), 49 (“an order should issue correcting inventor-ship of the [‘996] patent by either naming plaintiff at least as a co-inventor of the [‘996] patent”), 51 (identifying the injury as “without naming Thompson as a co-inventor”). 66 Doc. No. 1-2, Compl. at ¶ 51. 67 Id. 68 See Ultra-Precision, 2003 WL 24146874, at *2 (concluding that a jury cannot be allowed to consider a measure of damages under state law that would be prohibited under federal patent law). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 14 of 23 PageID 142 14 accounting to Plaintiffs, contravening § 262.69 Plaintiffs’ unjust enrichment claim is thus preempted, because § 262 permits co-owners to practice the invention without accounting to the other co-owners. Because Plaintiffs have not stated a claim to relief that is plausible, their unjust enrichment claim should be dismissed. C. Plaintiffs Fail to State a Claim for Correction of Inventorship70 “The inventors as named in an issued patent are presumed to be correct.”71 When an inventorship dispute arises, a court may “order correction of the patent on notice and hearing of all parties concerned and the Director [of the USPTO] shall issue a certificate accordingly.”72 “To prevail on a § 256 claim, ‘an alleged co-inventor must show that he contributed to the conception of the claimed invention and that his contribution was not insignificant in quality, when that contribution is measured against the dimension of the full invention.’”73 “Conception is ‘the touchstone of inventorship,’”74 and exists “‘when a definite and permanent idea of an operative invention, including every feature of the subject matter sought to be patented,’ is 69 See Tavory, 297 Fed. Appx. at 983. 70 Though slightly unclear, the Stryker Defendants understand that at least one of the Plaintiffs is requesting to be named as a co-inventor of the ‘996 patent, based on the counts in the Complaint. To the extent Plaintiffs allege they are the sole inventors of the ‘996 patent, such relief cannot be accorded under 35 U.S.C. § 256. See, e.g., Maxwell v. The Stanley Works, Inc., No. 3:06-0201, 2006 WL 1967012, at *4 (M.D. Tenn. July 11, 2006) (granting dismissal, finding that § 256 remedies only innocent errors in joined or non- joinder of inventors). Moreover, Plaintiffs have pleaded no facts to support an allegation that they have invented every element of every claim in the ‘996 patent. See Doc. No. 1- 2, Compl. ¶ 41; see also the ‘996 patent, Claim 1 (reciting, for example, “a positioning device which prevents the apparatus from moving in a caudal direction” and “a frame enclosing the patient at a sternal transversal plane”. 71 Hess v. Adv. Cardiovascular Sys., Inc., 206 F.3d 1223, 1227-28 (Fed. Cir. 1997) (citation omitted). 72 35 U.S.C. § 256(b). 73 Coda Dev. v. The Goodyear Tire & Rubber Co., Case No. 5:15-cv-1572, 2016 U.S. Dist. LEXIS 134468, at *11, 2016 WL 5463058, at *4 (N.D. Ohio Sept. 29, 2016) (quoting Ruling Meng v. Chu, 643 Fed. Appx. 990, 994 (Fed. Cir. 2016) (further internal quotation omitted). 74 Coda Dev., 2016 WL 5463058, at *4 (quoting Burroughs Wellcome Co. v. Barr Labs, Inc., 40 F.3d 1223, 1227 (Fed. Cir. 1994)). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 15 of 23 PageID 143 15 formed in the mind of the inventor.”75 Lastly, “[t]o be added as a co-inventor on a patent, one must ‘demonstrate that his labors were conjoined with the efforts of the named inventors.’”76 To state a claim to relief, a plaintiff “must, at the very least, set forth sufficient facts, not legal conclusions, in support of each element.”77 Plaintiffs parrot these claim elements, but rely only on legal conclusions. The Complaint does not allege sufficient facts to show that Mr. Thompson provided a “firm and definite idea” for the ‘996 patent. Nor do Plaintiffs allege sufficient facts to show that Mr. Thompson collaborated with the named inventors of the ‘996 patent with respect to the claimed subject matter. 1. Plaintiffs fail to properly allege co-conception of an invention in the ‘996 patent The Complaint describes Plaintiffs’ alleged invention in conclusory, non-descript terms that are not entitled to be construed in Plaintiffs’ favor.78 Plaintiffs vaguely allege that Mr. Thompson invented a CPR device to aid persons experiencing cardiac arrest.79 Plaintiffs further assert that “during a public presentation,” a representative from Medtronic solicited Mr. Thompson about this CPR device.80 As described above, Plaintiffs admit that they had already 75 Coda Dev., 2016 WL 5463058, at *4 (quoting Sewall v. Walters, 21 F.3d 411, 415 (Fed. Cir. 1994) (internal citation omitted)). 76 Maxwell, 2006 WL 1967012, at *5 (quoting Eli Lilly and Co. v. Aradigm Corp., 376 F.3d 1352, 1359 (Fed. Cir. 2004); see also Coda Dev., 2016 WL 5463058, at *5-6 (granting dismissal of inventorship claim, noting requirement of pleading collaboration); Red Carpet Studios v. Midwest Trading Group, Inc., Case No. 1:12cv501, 2016 WL 5661681, at *4 (S.D. Ohio Sept. 30, 2016) (“To establish co-inventorship under Section 256, a plaintiff must prove ‘some quantum of collaboration . . . .’”). 77 Coda Dev., 2016 WL 5463058, at *4. 78 See Twombly, 550 U.S. at 555. 79 Doc. No. 1-2, Compl. at ¶ 13. 80 Id. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 16 of 23 PageID 144 16 filed for patent protection for their inventions in 1990,81 and that they had filed another patent application on March 22, 2002, one day before their purported public presentation.82 The Complaint also admits that “Plaintiffs did not enter into any non-disclosure agreement or other formal contractual relationship with Medtronic, Inc., but felt that there was an implied contractual agreement,” based on the solicitation at the public presentation and the “confidentiality documentation” Thompson supposedly provided Medtronic afterward.83 However, Plaintiffs never describe this “confidentiality documentation,” and did not attach it to their Complaint. Instead, they allude to it in vague terms as “Process and/or Solution,”84 “trade secret, know how knowledge,”85 “prior art documentation,”86 “information filed in our patent application,”87 and “those conceived conceptions.”88 At most, the Complaint appears to describe the same CPR device for which Plaintiffs had already sought patent protection, and that was already publicly disclosed before the named inventors filed for the ‘996 patent.89 In sum, Plaintiffs’ allegations are non-specific, described only in conclusory terms, and fail to sufficiently allege a “definite and permanent idea of an operative invention.”90 81 Id. at ¶ 16 (referring to U.S. Patent No. 5,009,226, “filing on May 14, 1990”); see supra fn. 5 (patent issued on April 23, 1991). 82 Id. (referring to the patent application that issued as U.S. Patent No. 6,988,499); see also id. at ¶ 13. 83 Id. at ¶ 14. 84 Id. 85 Id. at ¶ 15. 86 Id. at ¶ 16. 87 Id.; see also id. at ¶ 31. 88 Id. 89 Id. at ¶ 31 (referring to “[i]nformation in the non disclosed patent application, know how knowledge and method,” generally describing a pillow device attached to a resuscitator placed under a patient’s neck). This appears to refer to Plaintiff’s application for U.S. Patent No. 6,988,499, which was filed on March 22, 2002 and published on September 25, 2003 - before the named inventors filed the ‘996 application. See also fn. 95, infra. 90 Coda Dev., 2016 WL 5463058, at *4 (quotation omitted). Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 17 of 23 PageID 145 17 Moreover, Plaintiffs concede that what they conceived was already known in the art, prior to both: (1) their alleged disclosure to Medtronic; and (2) the named inventors’ application for the ‘996 patent. An allegedly unnamed inventor must do more than merely “explain the state of the art” to a named inventor.91 Indeed, inventorship claims fail when, at best, the allegations indicate that a named inventor builds upon a method already disclosed by the alleged co-inventor in the prior art.92 Here, Plaintiffs concede that their alleged invention was already publicly known. First, the Complaint readily alleges that Plaintiffs were approached by Medtronic about Plaintiffs CPR device “during a public presentation at Christian Brothers University on March 23, 2002.”93 They also admit that their invention was the subject of a publicly-available patent that matured from a patent application filed in 1990, over a decade before their public presentation in 2002.94 Further, Plaintiffs’ subsequent patent, the ‘499 patent, which they also allege contains their invention, matured from a patent application filed on March 22, 2002 - one day before the public presentation.95 Lastly, the Complaint specifically concedes that Thompson “and the Plaintiffs did not enter into any non-disclosure agreement or other formal contractual relationship with Medtronic Inc., . . .”96 but “nevertheless shared the trade secret, know how knowledge and the 91 Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed. Cir. 1998). 92 See Sewall, 21 F.3d at 416; see also Gen. Elec. Co. v. Wilkins, 750 F.3d 1324, 1331-32 (Fed. Cir. 2014) (ruling that the plaintiff was not a co-inventor where the plaintiff “contributed nothing beyond what was already known in the art”). 93 Doc. No. 1-2, Compl. at ¶ 13. 94 Id. at ¶ 16. 95 Though not attached to the pleadings, the Court may take judicial notice that the face of the ‘499 patent shows the patent publication from which the ‘499 patent matured was published on September 25, 2003, several months before inventors of the ‘996 patent filed for their own patent. See Katz, 2016 WL 1179218, at *3. 96 Doc. No. 1-2, Compl. at ¶ 14. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 18 of 23 PageID 146 18 technology in confidence.”97 Plaintiffs fail to properly allege that they conceived of any invention claimed in the ‘996 patent. 2. Plaintiffs do not properly allege collaboration between themselves and the named inventors The Federal Circuit has made clear that an unnamed inventor’s “labors must be conjoined with the efforts of the named inventor because joint inventorship . . . can only arise when collaboration or concerted efforts occurs - that is, when the inventor have the same open line of communication during or in temporal proximity to their inventive efforts.”98 Where unnamed and named inventors have no contact with one another, much less worked together in any capacity, courts find no collaboration and dismiss inventorship claims.99 “There must be some element of joint behavior, such as collaboration or working under common direction, one inventor seeing a relevant report and building upon it or hearing another’s suggestion at a meeting.”100 “Individuals cannot be joint inventors if they are completely ignorant of what each other has done until years after their individual independent efforts. They cannot be totally independent of each other and be joint inventors.”101 Here, Plaintiffs do not allege any facts to show that a Plaintiff actually collaborated with any of the named inventors - Peter Sebelius and Martina Rosell. Instead Plaintiffs offer only 97 Id. at ¶ 15. 98 Eli Lilly, 376 F.3d at 1359; see Ethicon, 135 F.3d at 1459 (finding joint inventorship where unnamed inventor collaborated with named inventor for eighteen months); PerSeptive Biosystems, Inc. v. Pharmacia Biotech, Inc., 12 F. Supp. 2d 69, 85 (D. Mass. 1998) (finding joint inventorship where unnamed and named inventors conducted research together, shared research results, and shared ideas related to the patent). 99 See e.g., Maxwell, 2006 WL 1967012, *5 (dismissing for failure to state a claim where the plaintiff never had any contact with the named inventor); Red Carpet Studios, 2016 WL 5661681, at *4 (allegation that unnamed inventor had “a significant prior business relationship” with the defendant was insufficient to state a claim for inventorship); Coda Dev., 2016 WL 5463058, at **5-6 (dismissing inventorship claim where allegations showed lack of collaboration). 100 Kimberly-Clark Corp. v. Procter & Gamble Distrib. Co., 973 F.2d 911, 917 (Fed. Cir. 1992). 101 Id. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 19 of 23 PageID 147 19 conclusory allegations, such “[t]here was collaboration between plaintiff and defendant based on all parties [sic] actions.”102 As the Supreme Court recently held in Iqbal and Twombly, such allegations are insufficient under Fed.R.Civ.P. 8 to state a claim upon which relief can be granted.103 Plaintiffs do not allege ever having met with the named inventors, or having sent them any materials. Nor do Plaintiffs allege that the named inventors were ever aware of Plaintiffs, except to speculatively and conclusorily allege that Mr. Sebelius “is the same Jolife AB employee who had access to - and likely studied - the Thompson’s letters [sic] . . . .”104 There are no facts alleged to support these conclusions. Instead, they are the type of formulaic allegation disfavored by courts, and Plaintiffs are not entitled to a presumption they are true.105 Moreover, many allegations in the Complaint actually underscore the lack of collaboration. The Complaint alleges Plaintiffs provided “confidentiality documentation” to Medtronic in 2002, unaware of any alleged relationship between Medtronic and Jolife AB, which employed the named inventors.106 Plaintiffs also allege that they had “an impression that Medtronic was going to pay [Plaintiffs] for their know how knowledge, their technology and their process and/or provide funding, . . .”107, but then never had any subsequent communications with Medtronic until late 2011, almost a decade later.108 As of this later date, Plaintiffs also 102 Doc. No. 1-2, Compl. at ¶ 47 103 See Twombly, 550 U.S. at 555; Iqbal, 445 U.S. at 678. 104 Doc. No. 1-2, Compl. at ¶ 44. 105 See Twombly, 550 U.S. at 555. 106 Doc. No. 1-2, Compl. at ¶¶ 13, 18-19. 107 Doc. No. 1-2, Compl. at ¶ 13; see Coda Dev., 2016 WL 5463058, at **5-6 (where the plaintiff believed a “development partnership was in the offing, but never occurred,” this indicated lack of collaboration). 108 See Doc. No. 1-2, Compl. at ¶ 19 (alleging that Medtronic, Physio-Control, and JoLife AB had a contractual agreement in 2002); see Coda Dev., 2016 WL 5463058, at *5 (reasoning that a lack of collaboration was shown where, after sharing alleged secret Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 20 of 23 PageID 148 20 concede they were unaware that “Medtronic was negotiating a deal to sell Medtronic Physio- Control/Jolife AB.”109 Taken together, these allegations confirm the absence of any collaboration between Plaintiffs and the named inventors. Further, Plaintiffs claim their own inventions were conceived by them only, without any collaboration from the named inventors of the ‘996 patent.110 Therefore, as in the Federal Circuit’s Kimberly-Clark decision, the named inventors and alleged unnamed inventors were ignorant of each other, working independently.111 Plaintiffs’ speculative, conclusory, and boilerplate allegations of “collaboration” thus fail to state a claim, and Plaintiffs’ count seeking correction of inventorship should be dismissed. V. CONCLUSION For all the foregoing reasons, the Stryker Defendants respectfully request that the Complaint against them be dismissed for lack of personal jurisdiction. If the Court denies such relief, the Stryker Defendants respectfully request that the Complaint be dismissed in its entirety for failure to state a claim. information with the defendant, the defendant “unilaterally stopped communicating with” the plaintiff). 109 Doc. No. 1-2, Compl. at ¶ 19. 110 Id. at ¶ 13. 111 See Kimberly-Clark, 973 F.2d at 917. Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 21 of 23 PageID 149 21 DATE: February 6, 2017 LEWIS, THOMASON, KING, KRIEG & WALDROP, P.C. By: /s/ Christopher L. Vescovo CHRISTOPHER L. VESCOVO (14516) 2900 One Commerce Square 40 South Main Street Memphis, TN 38103 (901) 525-8721 cvescovo@lewisthomason.com Attorneys for Defendants Stryker Corporation, Physio-Control International, Inc., Physio-Control, Inc., and Jolife AB. SHOOK, HARDY & BACON LLP (APPLICATIONS FOR ADMISSION PRO HAC VICE TO BE SUBMITTED) B. Trent Webb, by special appearance John D. Garretson, by special appearance Lynn C. Herndon, by special appearance 2555 Grand Boulevard Kansas City, Missouri 64108-2613 T: 816.474.6550 F: 816.421.5547 bwebb@shb.com jgarretson@shb.com lherndon@shb.com Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 22 of 23 PageID 150 22 CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served upon the following listed persons, via the Court’s ECF system, this the 6th day of February, 2017: Larry E. Fitzgerald FITZGERALD, HARRIS & FITZGERALD 44 N. Second, Suite 201 Memphis, TN 38103 Attorney for Plaintiff Leo M. Bearman Robert F. Tom Nicholas Vescovo BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC 165 Madison Avenue, Suite 2000 Memphis, TN 38103 and Annie T. Christoff Andrew J. Rittenhouse BASS, BERRY & SIMS, PLC 100 Peabody Place, Suite 1300 Memphis, TN 38103 Attorneys for Defendant, Bain Capital, Inc. Sharon E. Roberg-Perez Martin R. Lueck David A. Prange ROBINS KAPLAN LLP 800 LaSalle Avenue Minneapolis, MN 55402 Attorneys for Defendant Medtronic, Inc. /s/ Christopher Vescovo Christopher Vescovo 7142843 Case 2:16-cv-03013-JPM-tmp Document 23-1 Filed 02/06/17 Page 23 of 23 PageID 151
