Apotex Corp. v. Hospira Healthcare India Private Ltd.

Fraud Claim Dismissed Against Indian Drug Maker; Misappropriation Duplicates Breach Claim

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OPINION AND ORDER Plaintiff Apotex Corporation, a company that distributes pharmaceutical products in the United States, sued Defendant Hospira Healthcare India Private Limited for breach of contract, various torts, and violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Its claims arise out of an agreement between Apotex and Hospira’s predecessor to jointly develop, manufacture, market, and sell pharmaceutical products. Hospira now moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the non-contract claims and damages alleged in the First Amended Complaint. Apotex opposes the motion and, separately, seeks leave to file a second amended complaint. For the reasons below, Hospira’s motion to dismiss is largely granted and Apotex’s motion for leave to amend is granted.BACKGROUNDThe following facts — drawn primarily from the First Amended Complaint (“FAC”) and “other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,” including “documents attached to the [c]omplaint, statements or documents incorporated into the [c]omplaint by reference, and matters of which judicial notice may be taken,” In re Barclays Liquidity Cross & High Frequency Trading Litig., No. 14-MD-2589 (JMF), 2019 WL 2269929, at *1 (S.D.N.Y. May 28, 2019) (internal quotation marks omitted) — are assumed to be true for purposes of this motion. See, e.g., Kalnit v. Eichler, 264 F.3d 131, 135 (2d Cir. 2001).Apotex and Orchid Chemicals and Pharmaceuticals, Ltd., Hospira’s predecessor, entered into an agreement (the “Agreement”) in June 2003 to co-develop and jointly commercialize certain generic pharmaceutical products for sale in the United States. See Docket No. 34 (“First Amended Complaint” or “FAC”)

14, 53. Under the Agreement, Orchid (later, Hospira) developed, gained regulatory approval for, and manufactured the generic drugs; Apotex commercialized the drugs for U.S. markets; and Apotex and Orchid shared costs and profits. Id.

Apotex Corp. v. Hospira Healthcare India Private Ltd.

Fraud Claim Dismissed Against Indian Drug Maker; Misappropriation Duplicates Breach Claim

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