Ferring B.V. et al v. Allergan Inc. et al
Filing
88
OPINION re: 69 MOTION to Amend/Correct 1 Complaint, for leave to file Second Amended Complaint, filed by Ferring Pharmaceuticals Inc., Ferring B.V., Ferring International Center S.A. For the foregoing reasons, Plaintiffs' motion for leave to amend is denied in its entirety. It is so ordered. (Signed by Judge Robert W. Sweet on 3/7/2014) (ajs)
UNI
STATES DISTRICT COURT
SOUTHERN
STRICT OF NEW YORK
------------- ------ ----
-------X
FERRING B.V., FERRING
INTERNATIONAL CENTER S.A., AND
FERRING PHARMACEUTICALS INC.,
Plaintiffs,
-against
12 Civ. 2650
OPINION
ALLERGAN, INC., ALLERGAN USA, INC.,
ALLERGAN SALES, LLC, SERENITY
PHARMACEUTICALS CORPORATION,
SERENITY PHARMACEUTICALS, LLC,
REPRISE BIOPHARMACEUTICS, LLC,
SEYMOUR H. FEIN, AND RONALD V.
NARDI,
Defendants.
--------------- ------- ------ -----X
A P PEA RAN C E S:
Attorneys for Plaintiffs
GIBBONS P.C.
One Gateway Center
Newa , NJ 07102
By: Mara E. Zazzali-Hogan
William P.
, Jr.
FINNEGAN, HENDERSON, FARABOW, GARRETT
& DUNNER, LLP
901 New York Avenue, N.W.
Washington, D.C.
20001-4413
James B. Monroe, Esq.
Paul W. Browning, Esq.
Adriana L. Burgy, Esq.
Attorne
for Defendants
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New
rk, NY 1016 0193
By: Joseph Evall, Esq.
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612
By: Jeffrey T. Thomas
Jeffrey H. Reeves
ZUCKERMAN SPAEDER LLP
1185 Avenue of the Americas
New York, NY 10036
By: James Scottile, Esq.
M. Cohen, Esq.
Noah Solowiejczyk
1
Sweet, D.J.
B.V., Ferring Internat
Plaintiffs
Ferring Pharmaceut
S .A.,
or
(collectively, "Ferring"
"Plaintiffs") have moved presumably pursuant to Rule
14 (2)
r leave to file the Se
against
Amended Compla
defendants, All
All
Sales, LLC (col
ceuti
(col
ls Inc.
1 Center
ct
("SAC")
, Inc., Allergan USA, Inc.,
ly "Allergan"), Serenity
s Corporation, Seren
Pharmaceuticals, LLC
ly "Serenity"), Reprise Biopharmaceutics, LLC
("Reprise"); Seymour H. Fein ("Fein"), and Ronald V. Na
("Nardi")
forth
S").
(collectively, the "De
For the reasons set
motion is denied.
low
s action presents a di
over the ownership of
certain patents involving desmopressin, a synthetic hormone,
used to treat
sorders related to excess
According to t
Plaintiffs, Fein, Na
Serenity and
urine production.
ise improperly obtained
starting in 2003
certain duties
According to the De
advancing their cla
and their companies
patents at issue
selling them to
violated
igation to which Alle
was compliant.
s, the Plaintiffs
and this litigation
2
layed
o
r to impose
-.---"----------~-
risks and costs of drug development on
lergan and then to
obtain patent correction in their favor. The proceedings in the
ion to date lend some credence to
De
ndants' position.
Prior Proceedings & Facts
Familiarity with t
alleged in the
prior proceedings and
tial complaint
s as
led by Ferring on AprilS,
2012 is assumed and were set forth in the March 18, 2013 order
(the "March 18 Order") grant
The Pla
Defendants' motion to dismiss.
iffs' motion to recons
r
t
March 18
Order was denied on August 5, 2013 (the "August 5 Order").
August 5 Order denied a request to amend as
The
violation of the
March 18 Order, but "without prejudice to permit Ferring to move
for leave to amend in compliance with the Marcy 18 Order." See
at 10.
Plaintiffs served their
rst Amended Complaint (the
"AC" or "previous Complaint") on August 21, 2013, and
simultaneously served the instant motion
leave to file a
Second Amended Complaint (the "SAC") seeking to restore the 14
aims dismissed by the March 18 Order.
3
The instant motion was heard and marked fully
submitted on October 23, 2013.
The Applicable Standard
The party opposing a motion to amend bears t
burden
of establishing that an amendment would be futile. See
______________~__~____~__~, 29 F.Supp.2d 134, 137 38
(E.D.N.Y. 1998)
(c
ing Harrison v. NBD Inc.,
990 F.Supp. 179,
185 (E.D.N.Y. 1998)).
While leave to amend should be "
when justice so requires,"
scretion to
ely give[n]
strict courts "ha[ve] broad
ide whether to grant leave to amend."
v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000).
is properly deni
Leave to amend
in cases of "undue delay, bad faith or
dilatory motive on the part
the movant, repeat
failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by
the amendment,
rtue of the allowance of
[or] futility of the amendment."
of N.Y., 514 F.3d 184, 191 (2d Cir. 2008)
Davis, 371 U.S. 178, 182 (1962)).
4
Ruotolo v. Cit
(quoting Foman v.
"A proposed amendment to a pleading would be futile if
it could not withstand a motion to dismiss pursuant to Rule
12(b) (6)." Oneida Indian Nation of New York v. City of Sherrill,
337 F.3d 139, 168
Transit Auth.,
(2d Cir. 2003)
(citing Ricciuti v. N.Y.C.
941 F.2d 119, 123 (2d Cir. 1991)). Therefore,
"[fJ or the purposes of evaluating futility, the 12 (b) (6)
standard is applied: all well pleaded allegations are accepted
as true, and all inferences are drawn in favor of the pleader."
E*Trade Fin. Corp. v. Deutsche Bank AG,
(S.D.N.Y. 2006)
1170, 1174
420 F.Supp.2d 273, 282
(citing Mills v. Polar Molecular Corp., 12 F.3d
(2d Cir. 1993)).
The Motion to Amend With Respect to all Counts is Denied as
Futile Because the Claims Remain are Time-Barred or are
Otherwise Deficient
The claims asserted by Ferring in the proposed SAC are
futile because the new allegations do not cure the time-barred
nature of the claims or are otherwise deficient.
The entirety of the amended claims asserted by
Ferring, Counts 4-17, were dismissed as time-barred from the
face of the AC in the March 18 Order properly and with
prejudice.
(See March 18, 2013 Order, at 20
5
(citation
omitted).)
futile.
As such, leave to amend these claims is denied as
See Wallace v. NYC Dept. of Corrections, 112 Fed. Appx.
794, 795 (2d Cir. 2004)
(affirming denial of leave to amend due
to futility because statute of limitations had run); see also
Troni v. Holzar, 2010 WL 3154852, at *2-5 (S.D.N.Y. July 29,
2010)
(dismissals based on untimeliness operate as dismissals
with prejudice and should not be revisited).
With respect to claims 4-6, 10-11, and 12-14, Ferring
has maintained that its claims are actually timely because it
has added allegations of post-2003 conduct to the SAC that
brings the claims within the limitations period.
Specifically,
Ferring points to two forms of post-2003 conduct that it claims
alters the time-barred nature of the claims: Fein's and Nardi's
(i)
sharing of confidential, trade secret, proprietary, and
privileged information and documents with Allergan, Serenity and
Reprise and (ii) use of Ferring's confidential, trade secret,
proprietary, and privileged information and documents to design
and conduct the clinical studies of the desmopressin
formulations and to obtain and commercialize the patents.
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