Tulsa Cancer Institute, PLLC et al v. Genentech, Inc.
Filing
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OPINION AND ORDER by Judge Terence Kern - Plaintiffs shall file their amended complaint within five days. ; granting 28 Motion for Leave to File Document(s); denying 35 Motion for Leave to File Document(s) (vah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TULSA CANCER INSTITUTE, PLLC,
an Oklahoma Limited Liability
Company; and OKLAHOMA
ONCOLOGY & HEMATOLOGY, INC.,
an Oklahoma Corporation, dba
CANCER CARE ASSOCIATES,
Plaintiffs,
v.
GENENTECH INC., a California
Corporation,
Defendant.
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Case No. 15-CV-157-TCK-TLW
OPINION AND ORDER
Before the Court is Plaintiffs’ Motion for Leave to File Amended Complaint (Doc. 28).
I.
Background
Plaintiffs filed their Complaint on April 2, 2015, alleging claims for breach of warranty and
unjust enrichment (Doc. 2). Specifically, Plaintiffs Tulsa Cancer Institute, PPLC (“TCI”) and
Oklahoma Oncology and Hematology, Inc, doing business as Cancer Care Associates (“CCA”),
allege that they purchased Herceptin, a cancer treatment drug “market[ed] and distribute[d]” by
Defendant Genentech, Inc. (“Defendant”) “through a closed distributor network.” (Compl. 2.)
Plaintiffs contend Defendant labeled the vials of Herceptin as containing 440 milligrams of
Herceptin, when the vials actually yielded only 424 milligrams of the drug.
On May 26, 2015, Defendant filed a Motion to Dismiss, seeking to dismiss Plaintiffs’
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 19). Plaintiffs filed their
opposed Motion for Leave to File Amended Complaint on July 7, 2015 (Doc. 28). With their First
Amended Complaint, Plaintiffs seek to allege claims for breach of express and implied warranties
and unjust enrichment and add seven new plaintiffs asserting identical claims (“Proposed
Plaintiffs”). Only one of the Proposed Plaintiffs has its principal place of business in Oklahoma;
the remaining six Proposed Plaintiffs are scattered throughout the country in Florida, New York,
Virginia, Tennessee, and Maryland. Defendant opposes Plaintiffs’ motion on the grounds of futility.
II.
Motion to Amend
Federal Rule of Civil Procedure 15(a)(2) (“Rule 15”) provides that a court “should freely
give leave [to amend] when justice so requires.” Courts generally deny leave to amend only on “a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or futility of amendment.” Duncan v.
Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1314 (10th Cir. 2005) (internal
quotation marks omitted). “A court properly may deny a motion for leave to amend as futile when
the proposed amended complaint would be subject to dismissal for any reason . . . .” E. Spire
Comm’ns, Inc. v. N.M. Pub. Reg. Comm’n, 392 F.3d 1204, 1211 (10th Cir. 2004); see also Gohier
v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999) (“The futility question is functionally equivalent
to the question whether a complaint may be dismissed for failure to state a claim . . . .”).
Defendant argues Plaintiff’s proposed First Amended Complaint would be futile for two
reasons: (1) joinder of the additional parties is improper under Federal Rule of Civil Procedure 20(a)
because the claims do not arise out of the same transaction or occurrence; and (2) the Court lacks
personal jurisdiction over Genetech with regard to the claims of the out-of-state Proposed Plaintiffs.
A.
Joinder under Rule 20(a)
Rule 20 allows permissive joinder of plaintiffs where:
(A) they assert any right to relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
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occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Fed. R. Civ. P. 20(a)(1)(A)-(B). The purpose of Rule 20 is to “promote trial convenience and
expedite the final determination of disputes, thereby preventing multiple lawsuits.” 7 Charles Alan
Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice and Procedure
§ 1652 (3d ed. 2001). “[T]he impulse is toward entertaining the broadest possible scope of action
consistent with fairness to the parties; joinder of claims, parties, and remedies is strongly
encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966).
Defendant challenges the first element, arguing the claims do not arise out of the same
transaction or occurrence.1 “Instead of developing one generalized test of ascertaining whether a
factual situation constitutes a single transaction or occurrence for purposes of Rule 20, the courts
seem to have adopted a case-by-case approach.” 7 Wright & Miller, supra, § 1653. Generally,
courts have found “transaction” to be “a word of flexible meaning. It may comprehend as a series
of many occurrences, depending not so much upon the immediateness of their connection as upon
their logical relationship.” King Fisher Marine Serv., Inc. v. 21st Phoenix Corp., 893 F.2d 1155,
1162 (10th Cir. 1990) (citing Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610 (1926)).
All “logically related” events entitling a person to institute legal action against
another generally are regarded as comprising a transaction or occurrence. The
analogous interpretation of the terms as used in Rule 20 would permit all reasonably
related claims for relief by or against different parties to be tried in a single
proceeding. Absolute identity of all events is unnecessary.
Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974) (internal citations omitted).
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Defendant has not challenged the second requirement of Rule 20, which requires the
claims to share common questions of law or fact.
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Courts have often permitted broad joinder of claims asserted against pharmaceutical
manufacturers. In In re Prempro Products Liability Litigation, the Eight Circuit permitted joinder
of plaintiffs’ claims against different manufacturers of hormone replacement therapy drugs where
plaintiffs lived in different states, were prescribed different drugs by different doctors for different
lengths of time, and had different injuries. 591 F.3d 613, 622-23 (8th Cir. 2010). Despite these
differences, the Prempro court found that plaintiffs’ claims were “logically related because they
each developed breast cancer as a result of the manufacturers’ negligence in designing,
manufacturing, testing, advertising, warning, marketing, and selling” of the drugs. Id. at 623. See
also Swann v. Johnson & Johnson, No. 4:14-CV-1546, 2014 WL 6850776, at *2-3 (E.D. Mo. Dec.
3, 2014) (finding breach of warranty and negligence claims of plaintiffs from 26 different states to
be logically related where plaintiffs alleged defendant knew of the causal connection between its
product and ovarian cancer); Jacobs v. Watson Pharm., Inc., No. 10-CV-120-TCK-TLW, 2011 WL
2216257, at *2-4 (N.D. Okla. June 7, 2011) (allowing joinder of warranty and negligence claims by
plaintiffs claiming injury from prescription patches where the patches were different doses, were
from different lots, and were prescribed by different doctors at different times).
The Court concludes that Plaintiffs’ and Proposed Plaintiffs’ claims satisfy the logical
relationship test. While there may be some differences in each of the Plaintiffs’ and Proposed
Plaintiffs’ claims, the similarity of the underlying facts establishes a logical connection warranting
joinder under Rule 20. Plaintiffs and Proposed Plaintiffs allege the vials of Herceptin marketed and
distributed by Defendant contained less than the 440 milligrams represented on the product’s label.
Plaintiffs’ and Proposed Plaintiffs’ claims “arise on a somewhat individualized basis out of the same
set of circumstances” and are reasonably related in time and type. See Jacobs, 2011 WL 2216257,
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at *4 (internal quotation marks omitted). The Court finds the geographic disparity in Proposed
Plaintiffs’ locations to be irrelevant given the nature of the claims asserted. Whether the drug is
purchased in Oklahoma or in New York is irrelevant to the amount of Herceptin actually contained
within each vial.
B.
Personal jurisdiction over Defendant
Defendant does not dispute that the Court has personal jurisdiction over Defendant with
regard to Plaintiffs’ claims and the claims of Proposed Plaintiff State of Oklahoma ex rel. Board of
Regents of the State of Oklahoma acting on behalf of the University of Oklahoma Stephenson
Cancer Center. Defendant contends this Court lacks personal jurisdiction over Defendant with
regard to the claims by the out-of-state Proposed Plaintiffs. Plaintiffs concede that the Court does
not have general jurisdiction over Defendants, leaving only the question of whether the Court has
pendent jurisdiction over Defendant with regard to Proposed Plaintiffs’ claims.
Pendent jurisdiction “exists when a court possesses personal jurisdiction over a defendant
for one claim, lacks an independent basis over the defendant for another claim that arises out of the
same nucleus of operative fact, and then, because it possesses personal jurisdiction over the first
claim, asserts personal jurisdiction over the second claim.” United States v. Botefuhr, 309 F.3d
1263, 1272 (10th Cir. 2002) (citing 4A Charles Alan Wright & Arthur A. Miller, Federal Practice
& Procedure § 1069.7 (3d ed. 2002)). “In essence, once a district court has personal jurisdiction
over a defendant for one claim, it may ‘piggyback’ onto that claim other claims over which it lacks
independent personal jurisdiction, provided that all the claims arise from the same facts as the claim
over which it has proper personal jurisdiction.” Id.
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For the reasons discussed above in Part II.A, the Court finds that Proposed Plaintiffs’ claims
arise from the same nucleus of operative fact as Plaintiffs’ claims. Because Defendant is already
defending nearly identical – if not identical – claims by Plaintiffs before this Court, Defendant will
not be prejudiced or inconvenienced by being forced to defend against Proposed Plaintiffs’ claims
in this forum as well. Judicial efficiency and the desire to avoid piecemeal litigation support the
exercise of pendent jurisdiction here.
The proposed First Amended Complaint would not be subject to dismissal on the basis of
Rule 20 joinder or personal jurisdiction over Defendant; therefore, Plaintiffs’ Motion for Leave to
Amend is not futile.
III.
Conclusion
Accordingly, Plaintiffs’ Motion for Leave to File Amended Complaint (Doc. 28) is
GRANTED. Plaintiffs shall file the First Amended Complaint within five days of the date of this
Opinion and Order. Defendant’s Motion for Leave to File Sur-Reply in Opposition to Plaintiffs’
Motion for Leave to File Amended Complaint (Doc. 35), filed August 27, 2015, is DENIED.
SO ORDERED this 6th day of October, 2015.
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