Avanir Pharmaceuticals Inc. et al v. Actavis South Atlantic LLC et al
MEMORANDUM ORDER GRANTING 315 Emergency MOTION to Stay the Date for Service of Plaintiffs' Responsive Expert Reports Pending Resolution of Plaintiffs' Motion to Strike Defendants' Untimely Invalidity Contentions filed by Avanir Pharmaceuticals Inc., Center for Neurological Study. Signed by Judge Leonard P. Stark on 3/19/13. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AVANIR PHARMACEUTICALS, INC.,
AVANIR HOLDING COMPANY, AND
CENTER FOR NEUROLOGIC STUDY,
ACTA VIS SOUTH ATLANTIC LLC,
ACTAVIS, INC., PAR PHARMACEUTICAL,
INC., PAR PHARMACEUTICAL
COMPANIES, INC., IMP AX
LABORATORIES, INC., WOCKHARDT,
LTD., WOCKHARDT USA, LLC, WATSON
PHARMACEUTICALS, INC., WATSON
LABORATORIES, INC., AND WATSON
C.A. No. 11-704-LPS
Pending before the Court is Avanir Pharmaceuticals, Inc., Avanir Holding Company, and
Center for Neurologic Study's (collectively, "Avanir" or "Plaintiffs") Emergency Motion to Stay
the Date for Service of Plaintiffs' Responsive Expert Reports Pending Resolution of Plaintiffs'
Motion to Strike Actavis South Atlantic LLC, Actavis, Inc., Par Pharmaceutical, Inc., Par
Pharmaceutical Companies, Inc., Impax Laboratories, Inc., Wockhardt, Ltd., Wockhardt USA,
LLC, Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., and Watson Pharma, Inc.'s
(collectively, "Defendants") Untimely Invalidity Contentions. (D.I. 315) For the reasons set
forth below, the Court will GRANT Avanir's motion.
Defendants served their Joint Initial Invalidity Contentions on April19, 2012.
(D.I. 324 Ex. 1) Defendants served their First Amended Invalidity Contentions on June 20, 2012
and their Second Amended Invalidity Contentions on November 2, 2012. (!d. Ex. 2, 3) On
February 1, 2013, Defendants served their Third Amended Invalidity Contentions. (!d. Ex. 4)
Pursuant to the Scheduling Order (D.I. 32), opening expert reports were served on February 8,
2013 and rebuttal reports are due on March 26, 2013.
On March 1, 2013, Avanir filed two emergency motions: (1) the motion to stay
currently before the Court; and (2) a motion to shorten the briefing schedule on Plaintiffs' motion
to stay. (D.I. 315; D.l. 316) On March 7, 2013, the Court granted Plaintiffs' motion to shorten
the briefing schedule. (D.I. 323)
On March 5, 2013, at the request of the parties, the Court scheduled a
teleconference for April 5, 2013 to address Plaintiffs' pending motion to strike. (D.I. 318; see
also D.I. 322)
Generally, in deciding a motion to stay, the Court considers three factors: "(1)
whether the granting of a stay would cause the non-moving party to suffer undue prejudice from
any delay or allow the moving party to gain a clear tactical advantage over the non-moving party;
(2) whether a stay will simplify the issues for trial; and (3) whether discovery is complete and a
trial date set." Cephalon, Inc. v. Impax Labs., Inc., 2012 WL 3867568, at *2 (D. Del. Sept. 6,
20 12). Granting or denying a motion to stay is within the broad discretionary powers of the
court. See Dentsply Int'l, Inc. v. Kerr Mfg. Co., 734 F. Supp. 656, 658 (D. Del. 1990) (citing
Bechtel Corp. v. Laborers' Int'l Union, 544 F.2d 1207, 1215 (3d Cir. 1976)).
Defendants' only allegation of prejudice is that the requested stay would result in
"a unilateral extension of the deadlines" applicable to Plaintiffs. (D.I. 324 at 3) However,
Plaintiffs are willing to extend the time for service of Defendants' reply briefs by the same
amount of extension Plaintiffs receive for service of their own responsive reports. (D .I. 315 at 5)
Moreover, the Court will stay service of all expert reports until after resolution of the motion to
strike. The remaining stay factors are essentially neutral as the stay itself is unlikely to simplify
or complicate the issues for trial and is also unlikely to affect the trial date. (D.I. 315 at 5; D.l.
324 at 3)
The Court further finds good cause for a stay. See Fed. R. Civ. P. 16(b)(4).
Under the circumstances here, Plaintiffs would be unfairly prejudiced by having to prepare and
serve responsive expert reports while their motion to strike is pending, as they would not know
whether it is necessary to respond to all of the opinions expressed in Defendants' expert reports.
Accordingly, IT IS HEREBY ORDERED THAT:
Avanir's Emergency Motion to Stay the Date for Service of Plaintiffs' Responsive
Expert Reports Pending Resolution of Plaintiffs' Motion to Strike Defendants' Untimely
Invalidity Contentions (D .I. 315) is GRANTED.
All parties' obligations under the scheduling order to serve expert reports are
STAYED until after the Court resolves the pending motion to strike.
March 19, 2013
UNITED STATES DISTRICT JUDGE
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