Ambrosecchia v. Alaven Pharmaceutical, LLC et al

Filing 58

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Relator's Motion to Amend the Second Amended Complaint and Summons to Correct a Misnomer (ECF No. 52) is GRANTED. re: 52 MOTION to Amend/Correct Misnomer on Second Amended Complaint and Initial Summons filed by Plaintiff Shara Ambrosecchia. Signed by District Judge Ronnie L. White on 4/6/15. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA
ex rel. SHARA AMBROSECCHIA,
Plaintiffs,
V.

PADDOCK LABO RA TORIES, LLC, and
PERRIGO COMPANY, INC.,
Defendants.

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No. 4:12CV2164 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Relator' s Motion to Amend the Second Amended
Complaint and Summons to Correct a Misnomer (ECF No. 52). Defendants have filed a
response in opposition. ·Upon review of the motion and the related documents, the Court will
grant Relator' s motion.
Relator asserts that it improperly named Defendant Perrigo Company, Inc. in its
Summons and Amended Complaint and seeks to name the proper party. Under Federal Rule of
Civil Procedure 15(a)(2), "a party may amend its pleading only with the opposing party' s
written consent or the court' s leave. The court should freely give leave when justice so
requires." Further, an amendment relates back to the date of the original pleading when it asserts
a claim that arose out of the same conduct as set forth in the original pleading. Fed. R. Civ. P.
15(c)(l)(B). Where the amendment changes the party or the name, an amendment relates back if
the time for serving the summons and complaint is within the period set forth in Fed. R. Civ. P.
4(m) and ifthe party being brought in had notice of the action and knew or should have known

the action would have been brought against it but for a mistake concerning the proper party' s
identity. Fed. R. Civ. P. 15(c)(l)(C).
In the present case, Relator seeks to amend the name "Perrigo Company, Inc." to
"Perrigo Company plc." Relator notes that Defendants have included a footnote in its pleadings
that indicates " 'Perrigo Company, Inc.' is a misnomer and the actual entity' s name is 'Perrigo
Company plc. ' Perrigo Company plc does not waive any rights to be accurately named in the
process and pleadings of the court." (Entry of Appearance, ECF No. 35) Although Defendants
argue that changing the name to the proper entity, Perrigo Company plc, would add a new
Defendant, the Court finds that the requirements of Fed. R. Civ. P. 15 are satisfied.
Relator asserts, and Defendants do not dispute, that Perrigo Company' s name changed in
2013 after Relator instituted the qui tam suit. Defendants also acknowledge in their pleadings
that the proper party is Perrigo Company plc. (Mem. in Support of Mot. to Dismiss n. 3, ECF
No. 48) In addition, Relator states in the second amended complaint that Defendant Perrigo is an
Ireland corporation and that Defendant Paddock Laboratories, LLC is a fully-owned subsidiary
of that Irish corporation. (Second Am. Compl. i! 19, ECF No. 29) Relator asserts, however, that
she was unaware that the entity's name changed. Further, Defendants do not challenge Relator' s
assertions that the amendment relates back to the original pleading because she filed the motion
to amend within the 120 day period under Fed. R. Civ. P. 4(m), nor do they challenge Relator' s
contention that Defendants were aware of the suit and entered their appearances on behalf of
Perrigo Company plc.
Here, the record shows that Relator sought to change the name within 120 days, as the
original summons was served on December 4, 2014, and she filed the motion on March 4, 2015 .
In addition, although Relator mistakenly identified the wrong party, attorneys have entered their

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appearances on behalf of the correct party, Perrigo Company plc. (Entry of Appearance, ECF
No. 35) Rule 15 requires "that the plaintiff show an error concerning the identity of the proper
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party or that [defendant] should have known that the suit would have been brought against it but
for a mistake in identifying the proper party." Shea v. Esensten, 208 F.3d 712, 720 (8 1h Cir.
2000). The Court finds that Relater has satisfied the requirements of Rule 15(c)(l). See Krupski
v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010) ("relation back under Rule 15(c)(l)(C)
depends on what the party to be added know or should have known, not on the amending party' s
knowledge or its timeliness in seeking to amend the pleading."); see also Nunley v. Ethel

Hedgeman Lyle Acad., No. 4:08-CV-1664 CAS, 2010 WL 4363418, at *5 (E.D. Mo. Oct. 27,
2010) (finding defendant received notice through contact between plaintiffs' counsel and
defendants' in-house counsel). Therefore, the Court finds that amendment of the Second
Amended Complaint and summons to correct a misnomer is warranted.
Accordingly,

IT IS HEREBY ORDERED that Relator' s Motion to Amend the Second Amended
Complaint and Summons to Correct a Misnomer (ECF No. 52) is GRANTED.
Dated this~ day of April 2015.

R0IE L. WHITE

UNITED STATES DISTRICT JUDGE

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