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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION



UNITED STATES OF AMERICA,    

                  Plaintiff,

                  v.

MICROSEMI CORPORATION,

                  Defendant.


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Civil Action No. 1:08 CV 1311
Judge: Trenga, Anthony J.
Filed: February 12, 2009


SURREBUTTAL MEMORANDUM OF UNITED STATES
IN OPPOSITION TO DEFENDANT MICROSEMI'S MOTION
TO DISMISS FOR IMPROPER VENUE, MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION, OR, IN THE ALTERNATIVE,
MOTION TO TRANSFER VENUE

In its Rebuttal Memorandum, Microsemi for the first time argues that its contacts with Virginia do not satisfy constitutional due process standards. This Court should disregard that argument because it was made late and misstates the applicable constitutional due process requirements.

First, as a procedural matter, this Court should not consider this argument because Microsemi failed to raise it in its opening Memorandum. See Bland v. Virginia State Univ., No. 3:06CV513-HEH, 2007 WL 446122, at *4 n.2 (E.D. Va. Feb. 7, 2007) (refusing to consider argument raised for the first time in a reply brief). Second, constitutional due process is clearly established here. In a case arising under a federal statute that provides for nationwide service of process, the constitutional due process inquiry is governed by the "national contacts" test under the Fifth Amendment. Board of Trustees, Sheet Metal Workers' Nat'l Pension Fund v. McD Metals, Inc., 964 F. Supp. 1040, 1043 (E.D. Va. 1997) (Ellis, J., collecting cases); see Kingsepp v. Wesleyan Univ., 763 F. Supp. 22, 24-25 (S.D.N.Y. 1991) (finding that in an antitrust case, "when a defendant resides in the United States and is subject to nationwide service of process under a federal statute, the defendant is subject to personal jurisdiction in federal court without regard to state long arm statutes and due process requirements are satisfied by the defendant's contacts with the United States"). This test requires only that "a defendant have sufficient aggregate contacts with the United States as a whole." McD Metals, 964 F. Supp. at 1044. Because the Clayton Act allows for nationwide service of process, (see 15 U.S.C. § 22) and Microsemi clearly has sufficient aggregate contacts with the United States as a whole, constitutional due process is satisfied.(1)

Microsemi's argument that its contacts with Virginia do not satisfy constitutional due process principles was made late and is incorrect. Accordingly, this Court should disregard that argument.

Dated: February 17, 2009 Respectfully submitted,


_______________/s/________________
LOWELL STERN (VA Bar #33460)
Counsel for the United States
Antitrust Division, Litigation II Section
United States Department of Justice
1401 H Street, N.W., Suite 3000
Washington, D.C. 20530
(202) 514-3676
(202) 307-6283 (fax)
Lowell.Stern@usdoj.gov


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 17th day of February, 2009, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:

Brian A. O'Dea
Michael Antalics
Benjamin G. Bradshaw
William T. Buffaloe

O'Melveny & Meyers LLP
1625 Eye Street, N.W.
Washington, DC 20006



     _______________/s/________________
LOWELL STERN (VA Bar #33460)
Counsel for the United States
Antitrust Division, Litigation II Section
United States Department of Justice
1401 H Street, N.W., Suite 3000
Washington, D.C. 20530
(202) 514-3676
(202) 307-6283 (fax)
Lowell.Stern@usdoj.gov


FOOTNOTES

1. By contrast, all of the cases cited by Microsemi for the proposition that its contacts do not meet constitutional due process requirements involve either diversity jurisdiction or federal statutes that do not contain a provision for nationwide service of process.