VIEIRA et al v. ELI LILLY AND COMPANY et al

Filing 101

ENTRY denying Plaintiffs' 99 Motion to Reconsider. Signed by Judge Richard L. Young on 5/31/2011. (PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ELIAS SOARES VIERA, et al.,
Plaintiffs,
vs.
ELI LILLY AND COMPANY, et al.,
Defendants.

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1:09-cv-0495-RLY-DML

ENTRY DENYING PLAINTIFFS’ MOTION TO RECONSIDER

Before the court is Plaintiffs’ Motion To Reconsider. On September 30, 2010, the
court dismissed with prejudice Plaintiffs’ claims based on the Alien Tort Statute (“ATS”)
and Indiana tort law. In that same order, the court professed its uncertainty as to the law
that Plaintiffs were claiming would apply to their tort claims, stating: “Plaintiffs have not
filed a foreign law notice under Fed. R. Civ. P. 44.1,” and “[t]o the extent Plaintiffs seek
to pursue their tort claims against Defendants under Brazilian law, Plaintiffs need to file
notice with this court of their reliance on foreign law.” The court apprised Plaintiffs that
unless they “file the required notice of reliance on foreign law pursuant to Fed. R. Civ. P.
44.1 within thirty (30 days) of the order, ” the Amended Complaint would be construed to
present only Indiana common law claims and therefore “will be dismissed in its entirety.”
The Plaintiffs did not file a notice of reliance on foreign law, and did not seek
reconsideration of the September 30, 2010 order. Instead, on October 28, 2010, they filed

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a “Notice of Voluntary Dismissal.” Defendants’ retort on November 4, 2010, was a
request that judgment be entered in their favor, noting that the court had already
dismissed the only claims it was certain were being pursued by Plaintiffs, and the failure
to file a notice of reliance on foreign law indicates that there are no other claims pending.
In short, Defendants argued that the Notice of Voluntary Dismissal was of no effect.
Plaintiffs offered no response, the court agreed with Defendants and dismissed Plaintiffs’
Amended Complaint with prejudice.

Following the entry of judgment, on December 3, 2010, Plaintiffs filed the Motion
to Reconsider which the court now addresses. Plaintiffs now assert for the first time that
they intended to plead claims under Brazilian law, arguing that their February 25, 2010
Brief in Answer to Defendants’ Motion to Dismiss provided sufficient notice of their
reliance on foreign law. Plaintiffs also dispute the court’s ruling on November 23, 2010,
that their Notice of Voluntary Dismissal had no effect. Neither of these arguments is
convincing.

In their brief in response to Defendants’ Motion to Dismiss, Plaintiffs made a
confusing reference to Brazilian law and its similarities to all common law derived from
the original Napoleonic Code. Even if that was Plaintiffs’ attempt to notify the court
through their response brief that they were relying on Brazilian law, the fact that the court
did not understand that to be the case and asked for confirmation through the filing of a
more formal notice under the rules, certainly did not prejudice Plaintiffs. What has
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prejudiced Plaintiffs is their untimely or nonexistent responses to this court’s orders and
the pleadings filed by Defendants.

The Plaintiffs were given a chance to make clear their intention to pursue claims
under the laws of Brazil and did not do so. The court’s interpretation was that there was
no such claim being made in the Amended Complaint, so the dismissal of their Alien Tort
Act Claim and any claim brought pursuant to Indiana law, which dismissal Plaintiffs say
they do not contest now, had no effect on the merits of any claims Plaintiffs may have
pursuant to the laws of Brazil. Further, the Notice of Voluntary Dismissal had no effect
because the court had already dismissed all of the claims it understood were being
pursued. Consequently, Plaintiffs’ Motion to Reconsider (Docket # 99) is hereby
DENIED.

SO ORDERED this 31st day of May 2011.

RICHARD L. YOUNG, CHIEF JUDGE
__________________________________
United States District Court
RICHARD L. YOUNG, CHIEF JUDGE
Southern District of Indiana
United States District Court
Southern District of Indiana

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Electronic Copies to:
Dean T. Barnhard
BARNES & THORNBURG LLP
[e-mail]

Richard D. Klingler
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, DC 20005

Bradford A. Berenson
SIDLEY AUSTIN LLP
[e-mail]

Mary Nold Larimore
ICE MILLER LLP
[e-mail]

Brant W. Bishop
KIRKLAND & ELLIS LLP
[e-mail]

Jason Levin
STEPTOE & JOHNSON LLP
[e-mail]

Kathleen Ann DeLaney
DELANEY & DELANEY LLC
[e-mail]

Melanie D. Margolin
FROST BROWN TODD LLC
[e-mail]

Joshua B. Fleming
FROST BROWN TODD LLC
[e-mail]

Jimmie Lamar McMillian
BARNES & THORNBURG LLP
[e-mail]

William A. Hahn
BARNES & THORNBURG LLP
[e-mail]

J. Scott Murphy
ALLEN & MURPHY, P.A.
[e-mail]

Richelle Marie Harris
FROST BROWN TODD LLC
[e-mail]

Lawrence P. Riff
STEPTOE & JOHNSON LLP
[e-mail]

Don R. Hostetler
HOOVER HULL LLP
[e-mail]

Aaron G.R. Rubin
ORRICK HERRINGTON &
SUTCLIFFE LLP
[e-mail]

Andrew W. Hull
HOOVER HULL LLP
[e-mail]

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Wallace M. Rudolph
RUDOLPH, GOTSCHALL AND
OSBORNE P.A.
[e-mail]
Philippa Scarlett
KIRKLAND & ELLIS LLP
[e-mail]
Kevin C. Schiferl
FROST BROWN TODD LLC
[e-mail]
Michael D. Shumsky
KIRKLAND & ELLIS LLP
[e-mail]
Daniel J. Thomasch
ORRICK HERRINGTON &
SUTCLIFFE LLP
[e-mail]
Melanie F.A. Vitalis
ICE MILLER LLP
[e-mail]
Laurie Straugh Weiss
ORRICK HERRINGTON &
SUTCLIFFE LLP
[e-mail]

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