Vallejo v. Amgen, Inc. et al

Filing 25

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to File Sur-Reply (Filing No. 23 ) is denied. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAN VALLEJO, Individually, and as
Personal Representative of Steve
Vallejo;

CASE NO. 8:14CV50

Plaintiff,
MEMORANDUM AND ORDER
vs.
AMGEN, INC., WYETH, INC., and
PFIZER, INC.,
Defendants.

This matter is before the Court on Plaintiff’s Motion for Leave to File Sur-Reply to
Defendants1 Motion to Dismiss (Filing No. 23).

Plaintiff represents that she has

conferred with Defendants and that Defendants take no position on the motion.
Defendants do request the opportunity to respond to Plaintiff’s sur-reply should the
Court grant Plaintiff’s Motion.
Under this Court’s local rules, “[n]o party may file further briefs or evidence [after
the moving party files a reply brief] without the court’s leave.” NECivR 7.1(c). Plaintiff
asserts that she seeks to address three issues in her sur-reply brief:

(1) Defendants claim that the label for Enbrel contained a warning
for myelodysplastic disorder along with their misstatements of FDA
regulations; (2) Defendants’ use of case law that is outdated,
irrelevant, or distinguishable with respect to Medication Guides; and
(3) Defendants continued misstatements of Plaintiff’s California
complaint and that the law exempts Defendants’ conduct because
some regulations exist concerning their conduct.

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In her Motion, Plaintiff refers to “Defendants” in the plural form; however, the Motion to Dismiss
(Filing No. 11) was only filed by Defendant Amgen.

(Filing No. 23 at ¶5.) Plaintiff fails to identify any new arguments raised by Amgen, Inc.
(“Amgen”) in its Reply Brief that were not raised in either Amgen’s Opening Brief (Filing
No. 11) or raised by Plaintiff in her Opposition Brief (Filing No. 17). In fact, Plaintiff
complains that Amgen’s Reply Brief (Filing No. 19) is “substantially nothing more than a
restatement of their original motion.” (Id. at ¶5.) Further, Plaintiff requested, and was
granted, thirty (30) additional days to respond to Amgen’s Opening Brief. (Filing Nos.
14, 15.) Plaintiff fails to explain why she was unable to fully address these issues in her
Opposition Brief, and the Court finds that Plaintiff had sufficient opportunity to address
these issues in her Opposition Brief. Accordingly,
IT IS ORDERED: Plaintiff’s Motion for Leave to File Sur-Reply (Filing No. 23) is
denied.

Dated this 28th day of August, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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