New information on Amarex request for dismissal. F

New information on Amarex request for dismissal. From YMB:

RANTES

CYTODYN, INC.
Plaintiff,
v.
AMAREX CLINICAL RESEARCH, LLC,
and NSF INTERNATIONAL, INC.
Defendants.
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Civil Action No. 8:21-cv-2533 (PJM)
PLAINTIFF CYTODYN, INC.’S RESPONSE
TO DEFENDANTS’ MOTION TO DISMISS
Plaintiff CytoDyn, Inc. (“CytoDyn”) brought this lawsuit to recover its clinical trial data,
which is being held hostage by CytoDyn’s contract research organization, Amarex Clinical Research LLC (“Amarex”) and Amarex’s corporate parent, NSF International, Inc. (“NSF” or “NSF
International” and, together with Amarex, the “Defendants”). Even though the parties are now
engaged in arbitration regarding their payment dispute, as required by the Master Services Agreement (“MSA”) (Compl. Ex. A., Dkt. 1-2) between CytoDyn and Amarex, Amarex and NSF nevertheless refuse to turn over the clinical trial data that is indisputably CytoDyn’s property and that
has no value to Amarex and NSF other than as a bargaining chip. Defendants’ Motion to Dismiss
and Brief in Support (Dkt. 32-1) (“Motion to Dismiss” or “Mot.”) rehash the arguments in their
Opposition to CytoDyn’s Motion for Preliminary Injunction (Dkt. 27), but Defendants still do
not—and cannot—dispute that CytoDyn owns the data and that the MSA requires its return.
Amarex and NSF argue that the arbitration clause of the MSA somehow bars certain of
CytoDyn’s claims, but that is incorrect, as even a cursory reading of the MSA proves: the clause
Case 8:21-cv-02533-PJM Document 33 Filed 12/07/21 Page 1 of 12
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expressly provides that “neither party will be prohibited from proceeding in a court to seek
injunctive relief or other equitable remedies pending arbitration.” MSA §§ 15.4, 15.5; see infra
Part I. Amarex and NSF argue that the Court lacks personal jurisdiction over NSF, based on a
threadbare declaration from an NSF officer—who, as it turns out, is also an officer of Amarex,
further demonstrating that NSF and Amarex are closely intertwined. In any event, CytoDyn has
made a prima facie showing that the Court has personal jurisdiction over NSF, and if more is
needed—on account of the contradictions between NSF’s litigation arguments and its public representations about owning and controlling Amarex—then the Court should order limited jurisdictional discovery to determine the true nature of the relationship between NSF and Amarex. See infra
Part II. Finally, NSF and Amarex argue that the Amended Complaint does not state a claim against
NSF, because only Amarex is a counterparty to the MSA and CytoDyn’s tort claims are not directed
to NSF. But this, too, is incorrect: CytoDyn’s tort claims in the Amended Complaint are alleged
against both NSF and Amarex,1 and the Complaint contains numerous allegations about NSF’s direct and actionable involvement in the wrongful withholding of CytoDyn’s data. See infra Part III.
The Motion to Dismiss should be denied, or, in the alternative, the Court should order jurisdictional discovery into the corporate relationship between NSF and Amarex."