ARRAY BIOPHARMA INC v. PLC (2020)

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered September 17, 2019, dismissing the complaint against AstraZeneca PLC, and bringing up for review an order, same court and Justice, entered on or about July 31, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the amended complaint as against defendant AstraZeneca PLC, and denied defendants' motion to dismiss the complaint as against defendant AstraZeneca AB, unanimously affirmed, without costs.

Supreme Court properly refused to dismiss the claim against AstraZeneca AB (AZ AB). Under CPLR 3211[a][1], dismissal is only warranted if the documentary evidence resolves all factual issues and disposes of plaintiff's claim as a matter of law (Foster v. Kovner, 44 A.D.3d 23, 28, 840 N.Y.S.2d 328 [1st Dept. 2007]). Defendants submitted only excerpts from the agreements related to the Merck collaboration. This limited submission was not adequate to demonstrate how the agreements were intended to work together, and whether Merck received any sublicensee rights outside the selumetinib sublicense agreement.

We agree with the court's decision to dismiss the complaint against AstraZeneca PLC (AZ PLC) but not on the jurisdictional grounds stated by the motion court (see Universal Inv. Advisory SA v. Bakrie Telecom Pte., Ltd., 154 A.D.3d 171, 179, 62 N.Y.S.3d 1 [1st Dept. 2017]; Tate & Lyle Ingredients Ams., Inc. v. Whitefox Tech. USA, Inc., 98 A.D.3d 401, 402, 949 N.Y.S.2d 375 [1st Dept. 2012]). Rather, we find that the sole claim of breach of contract against AZ PLC must be dismissed for failure to plead, and based upon documentary evidence. Generally, a breach of contract claim cannot be asserted against a non-signatory to the contract (Randall's Is. Aquatic Leisure, LLC v. City of New York, 92 A.D.3d 463, 463, 938 N.Y.S.2d 62 [1st Dept. 2012], lv denied 19 N.Y.3d 804, 2012 WL 1948299 [2012]), unless a plaintiff pleads liability on veil piercing or alter ego theories (see e.g. Remora Capital S.A. v. Dukan, 175 A.D.3d 1219, 1221, 110 N.Y.S.3d 14 [1st Dept. 2019]). Array has not pled any facts to support veil piercing or alter ego theories sufficient to demonstrate “inequity, fraud or malfeasance” (TNS Holdings v. MKI Sec. Corp., 92 N.Y.2d 335, 339, 680 N.Y.S.2d 891, 703 N.E.2d 749 [1998]). Moreover, Array never pled that AZ PLC assumed AZ AB's rights and obligations under the selumetinib license agreement, and in fact, the documentary evidence directly refutes this argument.