On June 23, 2017, the Court granted the motion to dismiss of MedImmune and AstraZeneca under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. See generally Ward v. Auerbach, 2017 WL 2724938 (D. Mass. June 23, 2017). That same day, the Court also granted the motion to dismiss of AlphaCore and Auerbach under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction.
The district court, in separate orders, dismissed the claims against ACP and Dr. Auerbach; the United States; and MedImmune and AstraZeneca. See Ward v. Schaefer, No. 16-12543, 2018 WL 1096829 (D. Mass. Feb. 27, 2018) (dismissing claims against Drs. Remaley and Shamburek and United States); Ward v. Auerbach, No. 16-12543, 2017 WL 2724938 (D. Mass. June 23, 2017) (dismissing claims against Dr. Auerbach and pharmaceutical companies).
The district court granted ACP's and Auerbach's joint motion to dismiss over Ward's objection. See Ward v. Auerbach, No. 16-12543, 2017 WL 2724938, at *13 (D. Mass. June 23, 2017). First, the court concluded that neither ACP nor Auerbach was subject to personal jurisdiction in Massachusetts premised on "their own in-forum contacts." Id.
Furthermore, “the mere possibility that information disclosed during discovery may show a basis for liability cannot act as a substitute for sufficiently pleaded factual allegations.” Ward v. Auerbach, No. 16-12543-FDS, 2017 WL 2724938, at *7 (D. Mass. June 23, 2017) (citing cases).
Second, unlike in Daynard, it is not clear here that Defendants or the non-parties "ever represented that they acted with the authority of the other." Ward v. Auerbach, Civil Action No. 16-12543-FDS, 2017 WL 2724938, at *11 (D. Mass. June 23, 2017) (distinguishing Daynard).
The plaintiffs also assert that personal jurisdiction is proper under a conspiracy theory of jurisdiction. The First Circuit has not adopted this theory, see Glaros v. Perse, 628 F.2d 679, 682 (1st Cir. 1980); Ward v. Auerbach, 2017 WL 2724938, at *12 n.8 (D. Mass. Jun. 23, 2017), and the Court declines to do so here. Finally, the plaintiffs' explanation that they do not have every detail concerning Garvey Schubert's activities directed at Massachusetts does not, without more, warrant jurisdictional discovery.
The second cause of action is for the stand-alone tort for civil conspiracy, which has also been called "true conspiracy." Ward v. Auerbach, No. 16-CV-12543-FDS, 2017 WL 2724938, at *12 (D. Mass. June 23, 2017). This is a "very limited cause of action."