Sudduth v. Wyeth LLC et al

Filing 48

ORDER granting Plaintiff's 40 Motion for Leave to File Second Amended Complaint. Plaintiff must file her Second Amended Complaint within five (5) days of the date of this Order. IT IS FURTHER ORDERED denying Defendants' 22 Motion for Judgment on the Pleadings as moot. Signed by Judge James A Teilborg on 9/15/11. (LFIG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Sharon Sudduth,
Plaintiff,

10
11

vs.

12
13

Wyeth LLC,
Wyeth Pharmaceuticals,
Pfizer, Inc.,

14
Defendants.
15

)
)
)
)
)
)
)
)
)
)
)
)
)

No. CV 10-2662-PHX-JAT
ORDER

16

Currently pending before the Court are Plaintiff’s Motion for Leave to File Second

17

Amended Complaint (Doc. 40) and Defendants’ Motion for Judgment on the Pleadings (Doc.

18

22). The Court now rules on the Motions.

19

I.

Motion to Amend

20

In her Motion for Leave to File a Second Amended Complaint, Plaintiff requests leave

21

to affirmatively plead the discovery rule and fraudulent concealment. Plaintiff does not seek

22

to add new causes of action. Plaintiff filed her Motion to Amend before the August 1, 2011

23

deadline set in the Court’s Scheduling Order.

24

The Court should “freely give leave [to amend] when justice so requires.”

25

FED.R.CIV.P. 15(a)(2). Whether to grant a motion to amend depends on the following

26

factors: (1) undue delay, (2) bad faith, (3) prejudice to the opposing party, (4) futility of

27

amendment, and (5) whether plaintiff has previously amended the complaint. Western

28

Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). The most important of

1

these factors is prejudice to the opposing party. U.S. v. Pend Oreille Public Utility Dist., No.

2

1, 926 F.2d 1502, 1511 (9th Cir. 1991).

3

Defendants do not argue undue delay or bad faith on the part of Plaintiff, nor do they

4

argue they will suffer prejudice – the most important factor – if the Court grants the Motion

5

to Amend. Defendants argue that the proposed amendments would be futile and that Plaintiff

6

has amended her complaint many times already.

7

Defendants argue Plaintiff has not alleged sufficient facts in her proposed amendment

8

to entitle her to tolling of the applicable statute of limitations based on either fraudulent

9

concealment or the discovery rule. Without opining whether the proposed amendments

10

would survive a motion to dismiss, the Court finds Defendants have not demonstrated that

11

amendment would be futile. The Court will not address the merits of Plaintiff’s claims and

12

Defendants’ statute-of-limitations defense on a Motion to Amend.

13

Defendants also argue that Plaintiff should not be given further opportunity to amend

14

because she already has had several opportunities to amend. In making this argument,

15

Defendants mistakenly rely on the procedural history of various prior lawsuits that included

16

Plaintiff’s claim. In the case pending before the undersigned, Plaintiff has amended her

17

complaint only once before. The Court therefore disagrees with Defendants’ assertion that

18

Plaintiff has had several opportunities to amend her complaint.

19

Because the Court finds that amendment would not be futile and that Plaintiff has not

20

repeatedly amended her complaint in the pending case and because Defendants have not

21

argued undue delay, bad faith, or prejudice, the Court will grant the Motion to Amend.

22

Plaintiff will have five (5) days to file her Second Amended Complaint.

23

II. Motion for Judgment on the Pleadings

24

Because the Court granted Plaintiff’s Motion to Amend, the Motion for Judgment on

25

the Pleadings will no longer be directed toward the operative complaint. See Forsyth v.

26

Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)(“An amended complaint supercedes the

27

original complaint.”) The Court therefore denies the Motion for Judgment on the Pleadings

28

as moot.
-2-

1

Accordingly,

2

IT IS ORDERED granting Plaintiff’s Motion for Leave to File Second Amended

3

Complaint (Doc. 40). Plaintiff must file her Second Amended Complaint within five (5) days

4

of the date of this Order.

5
6
7

IT IS FURTHER ORDERED denying Defendants’ Motion for Judgment on the
Pleadings (Doc. 22) as moot.
DATED this 15th day of September, 2011.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-