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CYTOMEDIX, INC. v. LB HYBARICS

United States District Court, Northern District of Illinois, Eastern Division


May 6, 2003

CYTOMEDIX, INC. PLAINTIFF,
v.
LB HYBARICS, INC. D/B/A BREVARD REGIONAL HYPER BARIC CENTER, PAUL W. BUZA AND DEBORAH A. BUZA, DEFENDANTS.

The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION AND ORDER

Defendants have moved for reconsideration of the bankruptcy court's finding that this case is within the "related to" jurisdiction of the bankruptcy court. The motion will be allowed. We disagree with the findings of Bankruptcy Judge Wedoff in regard to "related to" jurisdiction and agree entirely with the contrary conclusions reached by Judge Matthew F. Kennelly in his memorandum opinion of January 28, 2003 in the case of Cytomedix, Inc. v. Perfusion Partners & Associates, Inc., 02 C 4776. As Judge Kennelly's analysis demonstrates, the adjudication of these patent cases will not affect the property available for distribution in Cytomedix's bankruptcy nor the allocation of property among creditors. Moreover, counsel for Cytomedix conceded as much in the bankruptcy court before the reorganization plan was confirmed, and, as defendants argue, the doctrine of judicial estoppel prevents Cytomedix from taking a contrary position now. See In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990).

The reason Cytomedix sought to characterize this as a bankruptcy case is that it would thereby gain the advantage of the expanded personal jurisdiction and venue statutes applicable to bankruptcy cases. (Perhaps Cytomedix is also doing some forum shopping, as suggested by defendants in their alternative motion to abstain from exercising bankruptcy jurisdiction.) But because this is not a bankruptcy case, but a patent case, the ordinary rules of venue and personal jurisdiction apply. Defendants contend that their entire activity has occurred in the state of Florida and that they have done nothing to subject themselves to personal jurisdiction or venue in this district. Cytomedix has the burden of establishing personal jurisdiction and venue, and it has made no effort to do so, relying entirely upon its position that the bankruptcy rules apply.

We agree with Judge Wedoff that the reference to the bankruptcy court should be withdrawn, and the reference is hereby withdrawn.

The cause is dismissed as to all defendants for lack of personal jurisdiction and for improper venue.*fn1


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