Sellers v. Wyeth LLC et al

Filing 26

ORDER granting 21 Motion to Amend/Correct. Plaintiff's first amended complaint is to be filed and served within seven (7) days from the date of this order. Signed by Judge John W Sedwick on 8/11/11.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

ENID SELLERS,
Plaintiff,
WYETH LLC f/k/a WYETH, INC. and
WYETH PHARMACEUTICALS,
and
PFIZER INC., Individually and
as Successor-in-Interest to
PHARMACIA & UPJOHN CO.,
Defendants.

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

2:10-cv-02709 JWS
ORDER AND OPINION
Re:

[Motion at Docket 21]

I. MOTION PRESENTED
At docket 21, plaintiff Enid Sellers moves for leave to file a first amended
complaint. At docket 23, defendants Wyeth LLC, Wyeth Pharmaceuticals, and Pfizer,
Inc. oppose the motion. Plaintiff did not reply. Oral argument was not requested, and it
would not assist the court.
II. BACKGROUND
On December 16, 2010, plaintiff Enid Sellers filed a products liability complaint
against defendants Wyeth LLC, Wyeth Pharmaceuticals, and Pfizer Inc., alleging claims

of negligence, negligence per se, gross negligence/malice, strict liability,
misrepresentation and fraud, and breach of warranties. On May 26, 2011, the court
entered a scheduling and planning order pursuant to Rules 16 and 26(f), Federal Rules
of Civil Procedure, providing in pertinent part that motions to amend pleadings must be
filed by June 30, 2011. On June 30, 2011, Ms. Sellers filed a motion for leave to file a
first amended complaint.
III. STANDARD OF REVIEW
Rule 15(a) provides that after a party has amended its pleading once as a matter
of course, a party may further amend its pleading “only by leave of court or by written
consent of the adverse party; and leave shall be freely given when justice so requires.”1
Liberality in granting leave to amend is subject to the qualification that amendment of
the complaint does not cause the opposing party undue prejudice, is not sought in bad
faith, and does not constitute an exercise in futility.2 These factors are not given equal
weight. Futility of amendment by itself can justify the denial of a motion for leave to
amend.3 “[F]utility includes the inevitability of a claim’s defeat on summary judgment.”4

1

Fed. R. Civ. P. 15(a)(2).

2

DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

3

U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 1999).

4

Johnson v. American Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987).

-2-

IV. DISCUSSION
Plaintiff moves for leave to amend her complaint to affirmatively plead the
discovery rule and fraudulent concealment. Based on defendants’ actions in similar
cases, plaintiff anticipates that defendants will argue that the statute of limitations has
run and that the above defenses are unavailable unless affirmatively pleaded.
Defendants argue that amendment would be futile because neither the discovery rule
nor the fraudulent concealment doctrine would toll the statute of limitations.
Defendants’ arguments are premature because they are primarily directed to the merits
of their statute of limitations defense and assume that the proposed amended complaint
is deficient.5
Defendants’ argument that the proposed amended complaint does not sufficiently
plead the discovery rule is unavailing, because “[I]t is well-settled that statues of
limitations are affirmative defenses, not pleading requirements” under Rule 8(a) and
(c).6 Defendants’ contention that the proposed amended complaint fails to plead
fraudulent concealment with particularity is ineffectual because defendants rely on Ninth
Circuit case law, rather than Arizona law which applies here.7 Defendants do not allege
that amendment of the complaint is sought in bad faith or that granting the motion to
amend would cause undue prejudice.

5

See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (“[A] proposed
amendment is futile only if no set of facts can be proved under the amendment to the pleadings
that would constitute a valid and sufficient claim or defense.”)
6

Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003).

7

See, e.g., Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531-32 (9th Cir. 1985)
(district court correctly relied on California law).

-3-

V. CONCLUSION
For the reasons set out above, plaintiff’s motion at docket 21 for leave to file a
first amended complaint is GRANTED. Plaintiff shall file her first amended complaint
within seven (7) days of the date of this order.
DATED this 11th day of August 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

-4-