APOTEX INC.v. ALCON RESEARCH, LTD, et al.

Filing 59

ORDER denying Plaintiff's 47 Motion to Amend/Correct Judgment Under Federal Rule of Procedure 59(a) and Motion to Amend The Complaint Under Federal Rule of Civil Procedure 15(b). Signed by Judge William T. Lawrence on 5/15/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
APOTEX INC.,
Plaintiff,
vs.
ALCON RESEARCH, LTD., et al.,
Defendants.
BARR LABORATORIES, INC.,
Intervenor-Defendant.

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ENTRY ON MOTION TO ALTER OR AMEND JUDGMENT
This cause is before the Court on the Plaintiff’s motion entitled Motion to Alter or
Amend the Judgment under Federal Rule of Civil Procedure 59(e) and Motion to Amend the
Complaint under Federal Rule of Civil Procedure 15(b) (Dkt. No. 48). The motion is fully
briefed and the Court, being duly advised, DENIES the motion for the reasons set forth below.
The Plaintiff filed the instant motion in response to the Court’s order granting the
Intervenor-Defendant’s motion to dismiss for lack of subject matter jurisdiction. As the Plaintiff
recognizes, a dismissal for lack of subject matter jurisdiction must be a dismissal without
prejudice because it is not a judgment on the merits. See, e.g., Lewert v. P.F. Chang’s China
Bistro, Inc., 819 F.3d 963, 969 (7th Cir. 2016) (“The district court here dismissed the plaintiffs’
claims for lack of subject-matter jurisdiction, which is a dismissal without prejudice.”). As the
Plaintiff also recognizes, “an order dismissing a suit without prejudice is not a final, appealable
order unless it is apparent that the district court has finished with the case.” Shah v. Inter-Cont'l
Hotel Chicago Operating Corp., 314 F.3d 278, 281 (7th Cir. 2002) (citations omitted). In this

case, the Court entered a Rule 58 judgment specifically to make it clear that the Court was
finished with the case and that the dismissal for lack of subject matter jurisdiction was intended
to be a final, appealable order.
The Plaintiff now wishes to file a second amended complaint and has properly, given the
entry of judgment, sought leave to do so pursuant to Rule 59(e). The Plaintiff suggests that it
may have been improper for the Court to enter final judgment after granting the motion to
dismiss without giving the Plaintiff the opportunity to file an amended complaint first. The
Court disagrees. Clearly in most instances the Court is required under Seventh Circuit law to
give a plaintiff the opportunity to file an amended complaint before dismissing a case for failure
to state a claim. See, e.g., Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw.
Indiana, 786 F.3d 510, 519 (7th Cir. 2015) (“Ordinarily, however, a plaintiff whose original
complaint has been dismissed under Rule 12(b)(6) should be given at least one opportunity to try
to amend her complaint before the entire action is dismissed.”). This case was not dismissed
because the Plaintiff failed to state a claim in its complaint, however. There was nothing
deficient in the Plaintiff’s pleading, and the Plaintiff was given the opportunity to explain fully
why it believed the Court had subject matter jurisdiction. The Plaintiff’s argument in opposition
to the motion to dismiss was clear, well-articulated, and complete.
While the Plaintiff seeks to amend its complaint to “clarify” its amended complaint, to be
clear, the Court did not grant the motion to dismiss based on the failure to include anything in the
amended complaint. The Court granted the motion to dismiss because, after carefully
considering the Plaintiff’s arguments and the relevant precedent, the Court determined that it did
not have subject matter jurisdiction over this case. The Plaintiff disagrees with that
determination, and the proposed second amended complaint essentially reiterates the Plaintiff’s

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position in pleading form. However, the Plaintiff had the opportunity to set out its position in
response to the motion to dismiss and fully availed itself of that opportunity; the proposed
second amended complaint adds nothing new to the arguments the Court already has considered.
The parties spend much of their briefs discussing whether the Court should resolve the
instant motion by applying the liberal Rule 15 standard for granting leave to amend pleadings or
the more stringent Rule 59(e) standard for altering or amending a judgment. The Court need not
resolve that issue, because even assuming that the Rule 15 standard applies, the Plaintiff’s
motion is DENIED. Because the Court already has considered, addressed, and rejected the
Plaintiff’s position with regard to the existence of a case or controversy in this case, and the
proposed second amended complaint simply states that position in the form of a pleading rather
than the form of a brief, the proposed amendment would be futile.
SO ORDERED: 5/15/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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