Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Filing 631

MOTION to Amend Pleadings to Conform to the Evidence by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Attachments: #1 Exhibit A)(Fleming, Thomas)

Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Doc. 631

Case 1:05-cv-12237-WGY

Document 631

Filed 07/05/2007

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN INC., Plaintiff, vs. F. HOFFMANN-LA ROCHE LTD; ROCHE DIAGNOSTICS GmbH; and HOFFMANN-LA ROCHE INC. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION No.: 012237WGY

ROCHE'S MOTION FOR LEAVE TO AMEND ITS PLEADINGS TO CONFORM TO THE EVIDENCE Defendants F. Hoffmann-La Roche Ltd, Roche Diagnostics GmbH, and Hoffmann-La Roche Inc. (collectively "Roche") submit this motion seeking leave to amend its answer to conform the pleadings to the evidence by including allegations of Amgen's inequitable conduct disclosed during discovery and to define relevant markets for purposes of Roche's antitrust counterclaims. Roche's proposed amendments are included in the Second Proposed Amended Answer redlined to indicate added material and attached hereto as Exhibit A. All of Roche's inequitable conduct allegations sought to be added by amendment were timely disclosed in interrogatory responses prior to the close of fact discovery. Amgen previously represented that it did not object to amendment on Roche's inequitable conduct allegations disclosed during discovery. Thus, there is no prejudice by incorporating these amendments into the pleadings. Thus, Roche respectfully asks the Court for leave to amend the pleadings to conform to the evidence by including in its

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Case 1:05-cv-12237-WGY

Document 631

Filed 07/05/2007

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answer these allegations as well as particular market definitions relevant to the antitrust issues in suit (the market definition amendments were also previously unopposed by Amgen). In support of this motion, Roche submits the accompanying memorandum of law. CERTIFICATE PURSUANT TO LOCAL RULE 7.1 I certify that counsel for the parties have conferred in an attempt to resolve or narrow the issues presented by this motion and that no agreement could be reached. __/s/ Alfred H. Heckel Alfred H. Heckel Dated: July 5, 2007 Boston, Massachusetts Respectfully submitted, F. HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE INC. By its attorneys, /s/ Thomas F. Fleming______ Leora Ben-Ami (pro hac vice) Mark S. Popofsky (pro hac vice) Patricia A. Carson (pro hac vice) Thomas F. Fleming (pro hac vice) Howard S. Suh (pro hac vice) Kaye Scholer LLP 425 Park Avenue New York, New York 10022 Tel. [phone] [e-mail] Lee Carl Bromberg (BBO# 058480) Julia Huston (BBO# 562160) Keith E. Toms (BBO# 663369) Nicole A. Rizzo (BBO# 663853) Bromberg & Sunstein LLP 125 Summer Street Boston, MA 02110 Tel. [phone] [e-mail] 2

Case 1:05-cv-12237-WGY

Document 631

Filed 07/05/2007

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on the above date. /s/ Thomas F. Fleming Thomas F. Fleming

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