TUCCI v. GILEAD SCIENCES, INC.

Filing 30

MEMORANDUM ORDER granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim. As to Count 1 of the 8 amended complaint, the 13 motion is GRANTED and Count 1 is DISMISSED with leave to amend within 30 days of this Order. As to Count 2, the 13 motion is DENIED. Signed by Judge J. Nicholas Ranjan on 9/29/2022. (pak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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) 2:21-CV-1859-NR
Plaintiff,
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v.
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GILEAD SCIENCES, INC.,
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Defendant.
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MEMORANDUM ORDER
BLASE TUCCI,

Before the Court is Defendant Gilead Sciences’s motion to dismiss Plaintiff
Blase Tucci’s amended complaint.

ECF 13.

As explained on the record at the

September 28, 2022, hearing, the motion is GRANTED in part and DENIED in part.
As to Count 1, the Court grants the motion and dismisses Count 1 of the
amended complaint, but with leave to amend. The amended complaint makes vague
assertions that Gilead works with government agencies but fails to allege how the
company receives payments. See ECF 8, ¶¶ 9-12, 14, 23, 60, 118, 122. Likewise, the
amended complaint contends that Gilead “participat[es] in governmental rebates and
discounts” but does not support its contention with sufficient facts detailing how that
money flows from the Commonwealth to Gilead. ECF 22, ¶ 10. These are necessary
facts to establish a plausible claim that Gilead is an “employer” under the
Whistleblower Act, and must be pled to clear the hurdle of Twombly and Iqbal.

Santiago v. Warminster Twp., 629 F.3d 121, 131 (3d Cir. 2010) (allegations that are
“no more than conclusions[] are not entitled to the assumption of truth” (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
The Court, however, cannot say at this juncture that further amendment
would be futile. The Court therefore permits Mr. Tucci to amend his complaint as to

Count 1, consistent with this order. Any second amended complaint must be filed
within 30 days of this order.
As to Count 2, the Court denies the motion for the reasons stated on the record
at the hearing.

DATED: September 28, 2022

BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge

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