Johnson v. Wyeth LLC et al

Filing 34

ORDER, granting Plaintiff's 28 Motion for Leave to File a First Amended Complaint; Plaintiff shall file and serve the First Amended Complaint within 14 days of the entry of this order. Signed by Judge Frederick J Martone on 8/22/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Catherine Johnson,
Plaintiff,

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vs.

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Wyeth LLC; Pfizer Inc., Wyeth
Pharmaceuticals,
Defendants.

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No. CV-10-2690-PHX-FJM
ORDER

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Before the court is plaintiff’s motion for leave to file a first amended complaint (doc.

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28) and memorandum in support (doc. 29), defendants’ response (doc. 32) and plaintiff’s

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reply (doc. 33).

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Plaintiff moves to amend her complaint in order to affirmatively plead the discovery

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rule and the fraudulent concealment doctrines. Plaintiff anticipates that defendants will argue

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that the statute of limitations has run and that the discovery rule and fraudulent concealment

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defenses are not available unless affirmatively pled. Defendants argue that the amendment

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would be futile because neither the discovery rule nor the fraudulent concealment doctrine

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would toll the statute of limitations. But these arguments go to the merits of the statute of

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limitations defense, which we do not decide at this time. Defendants do not suggest that the

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amendment would cause undue delay or unfair prejudice.

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Given that leave to amend should be freely given when justice requires, Fed. R. Civ.

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P. 15(a)(2), IT IS ORDERED GRANTING plaintiff’s motion for leave to file a first

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amended complaint (doc. 28). Plaintiff shall file and serve the first amended complaint

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within 14 days of the entry of this order.

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DATED this 22nd day of August, 2011.

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