Kerry v. Takeda Pharmaceuticals North America, Inc. et al

Filing 33

ORDERED that 19 Motion to Amend/Correct 8 Answer to Complaint is GRANTED AS UNOPPOSED. Signed by Magistrate Judge Karen Wells Roby on 1/13/2012. (clm, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS D. KERRY

CIVIL ACTION

VERSUS

NO: 11-2325

TAKEDA PHARMACEUTICALS
NORTH AMERICA, INC., ET AL.

SECTION: “C” (4)

ORDER
Before the Court is a Motion for Leave to Amend Answer of the Takeda Defendants to
Plaintiff’s Complaint (R. Doc. 19) filed by Defendants Takeda Pharmaceuticals North America,
Inc., Takeda Global Research & Development Center, Inc., Takeda Pharmaceuticals, LLC, and
Takeda Pharmaceuticals America, Inc. (“Defendants”), seeking an order from this Court granting
them leave to file an amended answer. The motion is unopposed. The motion was heard on the
briefs on Wednesday, January 11, 2012.1
I.

Factual and Procedural Background
This personal injury lawsuit was brought as a result of the injuries sustained by Plaintiff

Thomas Kerry (“Plaintiff”) after ingesting the drug ACTOS®, a prescription medication used to
improve blood sugar in adults with Type II diabetes. (R. Doc. 1, ¶ 1.) Plaintiff alleges ACTOS®
is a defective drug that caused persons who ingested the drug, including Plaintiff, to develop bladder
cancer. (R. Doc. 1, ¶ 47.) Plaintiff’s complaint asserts claims against forty (40) defendants, each
1

The motion was originally set for hearing with oral argument. (R. Doc. 31.) However, both parties failed to
appear at the hearing. Therefore, Defendants’ motion was considered on the briefs.

of whom Plaintiff alleges manufactured, marketed, advertised, distributed, promoted and/or sold the
drug. (R. Doc. 1, ¶¶ 7-46, 50.) Plaintiff further alleges Defendants knew of the dangerous risks
associated with the drug, yet failed to adequately warn consumers and the medical community of
the risk of bladder cancer after more than twelve (12) months of ingestion. (R. Doc. 1, ¶ 48.)
Plaintiff also alleges Defendants failed to comply with the federal standards applicable to the sale
of prescription drugs. (R. Doc. 1, ¶ 86.) Plaintiff seeks damages, including damages for Mr.
Thompson’s health care costs, and pain and suffering. (R. Doc. 1, ¶ 6.)
As to the instant motion, Defendant seeks leave of Court to file an amended answer.
Defendants contend that after their answer was filed on October 19, 2011, they obtained “new
information” regarding the role of Defendant Takeda San Diego, Inc. Accordingly, Defendants now
seek leave to amend their responses. The motion is unopposed. Further, no scheduling order has
been issued by the Court in this case.
II.

Standard of Review
Federal Rule of Civil Procedure (“Rule”) 15(a), which governs the amendment of pleadings,

provides that leave to amend pleadings “shall be freely given when justice so requires.”
Fed.R.Civ.P. 15(a)(2). This, and other federal rules “reject the approach that pleading is a game of
skill in which one misstep by counsel may be decisive to the outcome and accept the principle that
the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S.
41, 48 (1957). Thus, Rule 15(a) evinces a liberal amendment policy and a motion to amend should
not be denied absent a substantial reason to do so. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th
Cir. 1998). “This policy is certainly strongest when the motion challenged is the first motion to
amend.” Thompson v. New York Life Insur. Co., 644 F.2d 439, 444 (5th Cir. 1981).

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However, leave to amend is by no means automatic. Addington v. Farmer’s Elevator Mut.
Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). The decision to grant or deny a motion for leave to
amend lies within the sound discretion of the trial court. Id. As outlined by the Supreme Court,
courts in this Circuit examine five considerations to determine whether to grant a party leave to
amend a complaint: (1) undue delay; (2) bad faith, or dilatory motive on the part of the movant; (3)
repeated failure to cure deficiencies by amendments previously allowed; (4) undue prejudice to the
opposing party by virtue of allowance of the amendment; and (5) futility of the amendment.
Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (citing Forman v. Davis, 371 U.S.
178, 182 (1962)). Absent any of these factors, leave to amend a complaint should be “freely given.”
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citing Forman, 371 U.S. at182).
II.

Analysis
A.

Local Rule 7.5

Local Rule 7.5 of the Eastern District of Louisiana requires that memoranda in opposition
to a motion be filed eight days prior to the noticed submission date. Here, Defendant’s motion was
noticed for submission on January 4, 2012. Thus, any oppositions were due on December 27, 2011.
Plaintiff’s opposition was not filed until December 30, 2011. (R. Doc. 27.) Thus, it is untimely.
Further, Plaintiff failed to seek an extension of time within which to oppose the motion, see Local
Rule 7.8, or leave to file his motion after the deadline. Plaintiff also did not explain the untimeliness
of his motion. Thus, Plaintiff’s opposition will not be considered by the Court.
B.

Defendants’ Proposed Amendment

No scheduling order has been issued by the Court in this case. Thus, the Defendants have
not missed any Court deadlines, and the Court’s analysis is limited to Rule 15.

3

In support of their motion, Defendants contend that leave to amend should be granted, as
they are not seeking amendment for any improper purpose, nor will the proposed amendment
prejudice Plaintiff.
Defendants’ proposed amendment includes changes to Defendants’ responses to paragraphs
35 and 36 of the Complaint. The proposed amendment denies allegations that Defendant Takeda
San Diego, Inc. transacted and conducted business in the State of Louisiana, or that it received
revenue from the sale of ACTOS® in the State of Louisiana. (R. Doc. 19-4, p. 8.)
Because Plaintiff failed to timely submit his opposition, and because nothing in the record
suggests leave to amend should be denied under Rule 15, Defendants’ motion is granted.
IV.

Conclusion
IT IS ORDERED that Defendants’ Motion for Leave to Amend Answer of the Takeda

Defendants to Plaintiff’s Complaint (R. Doc. 19) is GRANTED AS UNOPPOSED.
New Orleans, Louisiana, this 13th day of January 2012.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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