Last month, I wrote about Mylan’s lawsuit against the Pittsburgh Post-Gazette and two of its reporters for misappropriation of trade secrets, conversion, and other claims, based on articles that have not been favorable to Mylan. Based on PG’s response to the lawsuit, Mylan may get more of a fight than it expected.
First, PG removed the case to the Northern District of West Virginia, even though diversity of citizenship does not exist. But PG argues that Mylan, which is a Pennsylvania corporation and is the parent of Mylan Pharmaceuticals, Inc., "has no standing to sue for or recover damages" because the plaintiffs’ claims are "based on damage to property that is owned by MPI." Because Mylan’s ownership of Mylan Pharmaceutical’s stock is not the same as ownership of its property, Mylan is not a proper party and without it in the litigation, diversity exists and federal jurisdiction is proper.
In all likelihood, Mylan will move to remand, but PG’s argument about whether Mylan is simply a plaintiff in order to defeat diversity and keep the case in Monongalia County, where it has a large manufacturing presence, is interesting. There is also the possibility that if the court would grant the motion to remand and the state court would grant PG’s motion to dismiss Mylan, PG could again remove the case on the grounds that diversity exists. But that’s nothing but speculation at this point.
PG has also moved to dismiss the complaint under Federal Rule 12(b)(6) on the grounds that Mylan has no standing to assert its claims. This is how PG sees Mylan’s claims:
In sum, the Post-Gazette did nothing wrong whatsoever — not in obtaining information for publication, and not in publishing. All of its conduct is fully protected under well-settled legal principles under the First Amendment to the United States Constitution, Article III, Section 7 of the Constitution of the State of West Virginia, and common law.
Mylan’s effort to circumvent these principles and to impose liability on the Post-Gazette for constitutionally protected conduct is doomed to fail. This fact makes all the more evident that Mylan’s suit is aimed, not at the meritless effort of holding the Post-Gazette liable, but at attempting to uncover the Post-Gazette’s sources of information. Upon learning that the Post-Gazette had obtained information about Mylan’s internal investigation, Mylan undertook a feverish hunt to uncover the sources, but the effort was unavailing. Only then did Mylan launch this suit, with the express purpose of obtaining an order "compelling the identity of all persons delivering the Documents to the Post-Gazette or Reporter-Defendants." (Emphasis added.)
In a footnote, PG describes Mylan’s decision to file in state court as a "cynical appeal to local interests  manifested , for instance, in the wholly gratuitous allegation that Mylan provides "jobs for thousands of West Virginia citizens."
PG’s motion to dismiss is based on the argument in its notice of removal that Mylan is separate from Mylan Pharmaceuticals and has no standing independently to seek any damages from the defendants and therefore is not a proper party.
PG filed its answer to the complaint, but responds only to the allegations made by Mylan Pharmaceuticals, consistent with its position that Mylan is not a proper party. This post by Robert MacMillan in Reuters’ MediaFile blog says that PG countersued Mylan, but I can’t find any counterclaim in the answer or any separate pleading listed in the docket. I have contacted Fritz Byers’, PG’s counsel, and asked about a counterclaim, but haven’t heard from him yet.