Orosa v. Therakos, Inc. et al

Filing 73

ORDER SETTING LIMITED CASE MANAGEMENT SCHEDULE re 71 Statement filed by Johnson & Johnson, Inc., Charo Orosa, Therakos, Inc. Motion for leave to amend complaint due by 4/24/2013. Responses due by 5/8/2013. Replies due by 5/15/2013. Fur ther Case Management Conference set for 5/29/2013 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. Motion Hearing set for 5/30/2013 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Signed by Judge Jon S. Tigar on April 11, 2013. (wsn, COURT STAFF) (Filed on 4/11/2013)

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L. JULIUS M. TURMAN (SBN 226126)
PHILIP J. SMITH (SBN 232462)
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1126
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendant
THERAKOS, INC. and JOHNSON & JOHNSON

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARO OROSA, an Individual,

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Plaintiff,

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vs.
THERAKOS INC., a corporation; JOHNSON
& JOHNSON, INC., a corporation,

Case No. CV-11-02143 JST
JOINT STATEMENT REGARDING
INABILITY TO STIPULATE
REGARDING LEAVE TO AMEND
COMPLAINT AND [PROPOSED]
ORDER SETTING LIMITED CASE
MANAGEMENT SCHEDULE

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Defendant.
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

CASE NO. CV-11-02143 JST
DB2/ 24035872.1

JOINT STATEMENT REGARDING INABILITY TO STIPULATE REGARDING LEAVE TO AMEND
COMPLAINT AND [PROPOSED] ORDER SETTING LIMITED CASE MANAGEMENT SCHEDULE

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Plaintiff Charo Orosa (“Plaintiff”) and Defendants Therakos, Inc. and Johnson & Johnson
(together, “Defendants”)(Plaintiff and Defendants will be collectively referred to as the “Parties”)
hereby submit the following joint statement, by and through their respective counsel, as follows:
Whereas, at the March 19, 2013 case management conference (“CMC”), the Court
directed the parties to meet and confer to determine if Defendants would stipulate that Plaintiff be
granted leave to file an amended complaint;
Whereas, at the CMC, the Court directed the Parties to notify the Court, by April 9, 2013,
whether the Parties stipulated that Plaintiff be granted leave to file an amended complaint;
Whereas, at the CMC, the Court directed the Parties to provide the Court, by April 9,
2013, a proposed case management schedule;
Whereas, on March 26, 2013, Plaintiff provided Defendants with a copy of her proposed
third amended complaint;
Whereas, on April 2, 2013, Defendants notified Plaintiff that Defendants would stipulate
that Plaintiff be granted leave to file her third amended complaint except as to the portion of
Plaintiff’s new causes of action which are predicated upon Plaintiff’s alleged subjection to
retaliation for purportedly “raising concerns” regarding newly-specified acts of off-label
promotion. Defendants explained that Plaintiff’s knowledge of what she purportedly opposed
during her employment, which ended in 2010, necessarily pre-dates the filing of her initial
complaint in 2011 and thus any effort to rely on such allegations now as a basis to amend her
complaint two years later constitutes undue delay and suggests a bad faith or dilatory motive;
Whereas, on April 2, 2013, Defendants also notified Plaintiff that any stipulation to file an
amended complaint would remain subject to Defendants’ reservation of their right to move to
dismiss or strike Plaintiff’s newly added causes of action. Defendants explained that, based upon
their initial review, Plaintiff’s new causes of action would be subject to dismissal (or portions
being struck) on the grounds of, inter alia, lack of standing, preemption, constitutionally
protected activity, mootness and privilege;
Whereas, on April 8, 2013, Plaintiff notified Defendants that she accepted defendants’

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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CASE NO. CV-11-02143 JST

DB2/ 24035872.1

JOINT STATEMENT REGARDING INABILITY TO STIPULATE REGARDING LEAVE TO AMEND
COMPLAINT AND [PROPOSED] ORDER SETTING LIMITED CASE MANAGEMENT SCHEDULE

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reservation of rights and defenses as to any new claims, but disputed their assertion that any
allegation that she “raised concerns” of off-label use and suffered retaliation as a result were “new
allegations”, and pointed out that the same or very similar allegations already existed in par. 19 of
the current complaint, and on that basis asked defendants to reconsider their stated position to
limit the new causes of action because the basis for the desired limitation was not accurate.;
Whereas, based upon the above-described meet and confer discussions, the Parties were
unable to stipulate that Plaintiff be granted leave to file her amended complaint;
Whereas, based upon the above-described meet and confer discussions, Defendants intend
to oppose Plaintiff’s motion for leave to file an amended complaint;
Whereas, the Court’s February 11, 2013 Reassignment Order vacated all law and motion
hearing dates, pretrial conferences and the trial date in this matter; and
Therefore, the Parties, by and through their counsel, hereby stipulate and agree to the
following limited case management schedule:
a.

Last day to file Plaintiff’s motion for leave to file her amended complaint: April

24, 2013;
b.

Last day for Defendants to file their opposition to Plaintiff’s motion for leave to

amend: May 8, 2013;
c.

Last day for Plaintiff to file her reply brief in support of motion for leave to file an

amended complaint: May 15, 2013;
d.

Hearing on Plaintiff’s motion for leave to file her amended complaint: May 30,

2013 at 2 p.m.;
e.

Last day for Defendants to file their response to Plaintiff’s amended complaint: 20

days after the date on which Plaintiff’s amended complaint is deemed filed (if leave to
amend is granted);
f.

Deadline for fact discovery regarding Plaintiff’s newly added causes of action: 60

days after Defendants’ motion to dismiss and/or strike Plaintiff’s amended complaint is
ruled upon or 60 days after Defendants’ answer to Plaintiff’s amended complaint is filed;

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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CASE NO. CV-11-02143 JST

DB2/ 24035872.1

JOINT STATEMENT REGARDING INABILITY TO STIPULATE REGARDING LEAVE TO AMEND
COMPLAINT AND [PROPOSED] ORDER SETTING LIMITED CASE MANAGEMENT SCHEDULE

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///
///
g.

Deadline to file dispositive motions: 45 days after fact discovery closes or, if

applicable, 45 days after the Court denies Plaintiff’s motion for leave to amend her
complaint;
h.

Next case management conference: May 23, 2013 at 2 p.m.

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IT IS SO STIPULATED.

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Dated: April 9, 2013

MORGAN, LEWIS & BOCKIUS LLP

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/s/ PHILIP J. SMITH
L. JULIUS M. TURMAN
PHILIP J. SMITH
Attorneys for Defendant
THERAKOS, INC. and JOHNSON &
JOHNSON

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Dated: April 9, 2013

LAW OFFICES OF MICHAEL T. WELCH

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By /s/ MICHAEL T. WELCH
Michael T. Welch
Attorneys for Plaintiff
CHARO OROSA

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Dated: April 11, 2013

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S

DERED
SO OR
IT IS
Honorable Jon S. Tigar S MODIFIED
A
United States District Judge
ar
n S . Ti g
FILER’S ATTESTATION
J u d ge J o

By

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I, Philip J. Smith, am the ECF user whose identification and E
password are being used
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RN
F
D IS T IC T O
to file Defendants Therakos, Inc. and Johnson & Johnson’s, as well as Plaintiff Charo Orosa’s,
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A

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FO

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UNIT
ED

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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S DISTRICT
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Joint Statement Regarding Inability TO Stipulate Regarding Leave TO Amend Complaint And
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[Proposed] Order Setting Limited Case Management Schedule. In compliance with General
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Order 45.X.B, I hereby attest that Michael T. Welch concurs in this filing.
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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CASE NO. CV-11-02143 JST

DB2/ 24035872.1

JOINT STATEMENT REGARDING INABILITY TO STIPULATE REGARDING LEAVE TO AMEND
COMPLAINT AND [PROPOSED] ORDER SETTING LIMITED CASE MANAGEMENT SCHEDULE

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/s/ Philip J. Smith
Philip J. Smith
Attorneys for Defendants
THERAKOS, INC. and JOHNSON &
JOHNSON

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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CASE NO. CV-11-02143 JST

DB2/ 24035872.1

JOINT STATEMENT REGARDING INABILITY TO STIPULATE REGARDING LEAVE TO AMEND
COMPLAINT AND [PROPOSED] ORDER SETTING LIMITED CASE MANAGEMENT SCHEDULE