Christison v. Biogen Idec Inc.
| Decision Date | 23 June 2016 |
| Docket Number | Case No.: 2:11-cv-01140-DN-DBP |
| Parties | KENNETH CHRISTISON, Individually and as Surviving Spouse of Annalee Christison, Deceased, and as Personal Representative of the Estate of Annalee Christison, Deceased, Plaintiff, v. BIOGEN IDEC INC. AND ELAN PHARMACEUTICALS, LLC, Defendants. |
| Court | U.S. District Court — District of Utah |
Plaintiff Kenneth Christison filed a Motion for Leave to Amend his First Amended Complaint ("Motion to Amend")1 seeking to add a claim for negligent undertaking. Defendants Biogen Idec Inc. ("Biogen") and Elan Pharmaceuticals, LLC ("Elan") (collectively, "Companies") opposed the Motion to Amend ("Opposition").2 Mr. Christison filed a Reply in support of the Motion.3
The Motion to Amend was based on the disclosure of a Materials Licensing Agreement ("MLA") which Biogen entered into with the National Institute of Health ("NIH").4 Mr.Christison argued that the MLA supported the new claim for negligent undertaking5 and, because the MLA was not disclosed by Biogen until September 2015, there was no "undue delay or bad faith" in filing the Motion to Amend.6 The Companies disagreed, arguing that the Motion to Amend was untimely.7 The Companies noted that the deadline to amend pleadings was May 29, 2014, over a year and a half before Mr. Christison filed the Motion to Amend.8 The Companies argued that Mr. Christison was aware of the MLA by at least January 2015 and should have moved to amend then. The Companies also argued that the Motion to Amend was futile for multiple reasons.9 The Motion to Amend was referred to Magistrate Judge Pead under 28 U.S.C. § 636(b)(1)(A).10
After considering the briefing, Judge Pead denied the Motion to Amend ("Decision").11 Judge Pead concluded that Mr. Christison had not demonstrated good cause for the untimely filing12 and that amendment would be futile because Mr. Christison had not alleged the required elements for a claim of negligent undertaking.13 Mr. Christison objects to Judge Pead's Decision ("Objection").14
When reviewing orders of the magistrate judge resolving non-dispositive pretrial matters, "[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law."15 For orders resolving dispositive matters, 16
Judge Pead's Decision finding Mr. Christison's motion to amend untimely would normally be reviewed under the first standard,17 but because it was coupled with a "futility" analysis, the entire order is reviewed de novo.18 Some courts have found that when a magistrate judge's ruling on a motion to amend is based on futility, the ruling should be reviewed de novo.19 "The thinking reflected in these cases is that by declaring a proposed amendment futile, the magistrate judge has effectively engaged in the Rule 12(b)(6) analysis and has decided theamendment fails to state a claim, thus making the decision dispositive."20 It is unclear whether such rulings should be reviewed under a de novo standard.21 However, out of caution, Judge Pead's entire Decision will be reviewed de novo.
Under a de novo review a court 22
Judge Pead concluded that Mr. Christison had not demonstrated good cause for the untimely filing.23 Following a recent Tenth Circuit decision, Judge Pead noted that while leave to amend is "freely" given, if a scheduling deadline passes, "a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Rule 16(b)(4) and (2) satisfaction of the Rule 15(a) standard."24 "Under Rule 16(b)(4)," Judge Pead continued, "a scheduling order 'may be modified only for good cause and with the judge's consent.'"25 Good cause could not be found in Mr. Christison's situation, Judge Pead found, because Mr. Christison had not identified any "new information in the [MLA] that was necessary for him to bring the negligentundertaking claim."26 Furthermore, Judge Pead explained, Mr. Christison was aware of the existence of the MLA at least by January 2015, eleven months before filing the Motion to Amend,27 "because his own expert discussed the [MLA] in his expert report."28 Therefore, Judge Pead concluded that Mr. Christison "knew of the underlying conduct but simply failed to raise his tort claim, thus the claim is barred."29
Mr. Christison argues that Judge Pead failed to consider multiple new facts from the recently-disclosed Materials Licensing Agreement ("MLA") and argues that the negligent undertaking claim could not have been added to the Complaint any earlier because Mr. Christison did not have enough evidence to establish good cause until the MLA was disclosed.30
Mr. Christison is incorrect. "Courts have denied leave to amend where the moving party was aware of facts on which the amendment was based for some time prior to the filing of the motion to amend."31 "Lateness does not of itself justify the denial of the amendment," but the "longer the delay, the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court . . . ."32 The Tenth Circuit "focuses primarily on the reasons for the delay."33 If a party has "no adequate explanation" for its delay in filing a motion to amend, "denial of leave to amend is appropriate[.]"34
As Judge Pead correctly noted, the Motion to Amend was filed many months after the deadline for amending pleadings had passed.35 Thus, the Motion to Amend is untimely and Mr. Christison was required to establish "good cause" for the amendment.36 Even Mr. Christison recognized that "[u]ntimeliness itself can be a sufficient reason to deny leave to amend, but only when the movant is unable to provide adequate explanation for the delay."37
The only explanation or "good cause" Mr. Christison offers is that he could not have brought the Motion to Amend earlier because he didn't have the support to do so.38 But this argument is contradicted by the expert report of Dr. Eugene Major. Dr. Major's January 2015 expert report states not only that he was aware of the MLA, but that Biogen could have made the assay commercially available as early as 2007 but failed to do so.39 Thus, Mr. Christison knew as early as January 2015, through his expert Dr. Major, that the MLA existed40 and that Biogen, according to Mr. Christison's expert, should have made the assay commercially available sooner.41 This is the exact basis for the negligent undertaking claim—delay in making the assay available.
Mr. Christison attempts to dismiss Dr. Major's knowledge of the MLA by arguing that "the sparse information Dr. Major provided in his report amounted to no more than a general reference to a technology transfer" and that Dr. Major did not know the details of the MLA. Butthat is incorrect. Dr. Major clearly stated that he not only knew about the MLA, but also believed Biogen was dilatory in its development of the assay, which is the basis for the negligent undertaking claim. Thus, Mr. Christison had a valid basis to add a negligent undertaking claim to the lawsuit as early as January 2015, when Dr. Major's expert report was served on the Companies. Mr. Christison waited until December 2015 to attempt to do so. Judge Pead correctly concluded that there was no adequate explanation for the delay.
Mr. Christison's arguments about what might have happened if it brought a motion to amend in January 2015 are irrelevant because no motion to amend was filed at that time. The relevant facts are that Mr. Christison had knowledge in January 2015 of Biogen's possession of an assay to test for JC Virus antibodies and had an expert who argued that Biogen delayed making the assay commercially available, but Mr. Christison did not raise a claim for negligent undertaking until December 2015. Mr. Christison has not provided valid reasons for the delay.
Mr. Christison argues that his negligent undertaking claim was dependent on knowledge about the details revealed by the MLA about "quality control" and "negative control sera."42 Mr. Christison states that after he received a copy of the MLA, it was clear that "Biogen was even further along in the development process than Plaintiff knew, and makes Biogen's negligence more clear."43 But this argument shows that Mr. Christison already "knew" that Biogen was negligent, and the MLA made the "negligence more clear." Mr. Christison did not need to delay amendment to his complaint if he already "knew" Biogen was negligent in the development of the assay. Rather, the Federal Rules of Civil Procedure allow a plaintiff to raise an allegation if its "factual contentions have evidentiary support or, . . . will likely have evidentiary support aftera reasonable opportunity for further investigation or discovery[.]"44 The argument made by Mr. Christison that the MLA made Biogen's negligence more clear shows that "Plaintiff [already] knew" about Biogen's "development process" before receiving a copy of the MLA and could have validly brought a claim for negligent undertaking in January 2015, or possibly earlier. It did not, and has not explained any valid reason for failing to doing so.
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