In re Epipen (Epinephrine Injection, Usp) Mktg., Sales Practices & Antitrust Litig.

• Decision Date: 25 October 2021
• Docket Number: MDL No: 2785,Case No. 17-md-2785-DDC-TJJ
• Citation: 568 F.Supp.3d 1184
• Parties: IN RE: EPIPEN (EPINEPHRINE INJECTION, USP) MARKETING, SALES PRACTICES AND ANTITRUST LITIGATION (This Document Applies to Consumer Class Cases)
• Court: U.S. District Court — District of Kansas

568 F.Supp.3d 1184

IN RE: EPIPEN (EPINEPHRINE INJECTION, USP) MARKETING, SALES PRACTICES AND ANTITRUST LITIGATION

(This Document Applies to Consumer Class Cases)

MDL No: 2785

Case No. 17-md-2785-DDC-TJJ

United States District Court, D. Kansas.

Signed October 25, 2021

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

Plaintiffs have filed a Motion for Reconsideration (Doc. 2398). It asks the court to reconsider two portions of its June 23, 2021 Memorandum and Order deciding the Mylan defendants’ Motion for Summary Judgment: (1) the portion that granted summary judgment against plaintiffs’ RICO claim, and (2) the portion that dismissed four named plaintiffs who are not plaintiffs in any underlying case that the Judicial Panel on Multidistrict Litigation transferred to this MDL. See Doc. 2381 at 160–63, 164–80. The court denies plaintiffs’ motion.¹

I. Timeliness of Plaintiffs’ Motion

The Mylan defendants argue that the court can deny plaintiffs’ motion simply because it is untimely. Plaintiffs’ motion asks that the court reconsider just certain parts of its Order (Doc. 2381) granting in part and denying in part the Mylan defendants’ Motion for Summary Judgment (Doc. 2141). The Mylan defendants argue that because the court's Order granted just a partial summary judgment and didn't dispose of the case in its entirety, it is a non-dispositive order. The court's local rules require a party seeking reconsideration of a non-dispositive order to file the motion within 14 days. D. Kan. Rule 7.3(b). Here, the court entered the summary judgment Order on June 23, 2021. Plaintiffs filed their Motion for Reconsideration on July 21, 2021—28 days after the court entered its June 23 Order. Thus, because plaintiffs filed their motion more than 14 days after the court entered its Order, the Mylan defendants argue that plaintiffs’ motion seeking reconsideration is untimely under D. Kan. Rule 7.3(b).

Plaintiffs say the Mylan defendants are wrong. They argue that the court's June 23 Order wasn't a non-dispositive order. Instead, plaintiffs contend that the June 23 Order was a dispositive order because it disposed of certain claims—in particular, it granted summary judgment against plaintiffs’ RICO claim and it dismissed four named plaintiffs from the case. So, plaintiffs assert, the court's local rule governing motions to reconsider dispositive orders applies. See D. Kan. Rule 7.3(a) ("Dispositive Orders and Judgments"). This local rule requires that parties "seeking reconsideration of dispositive orders or judgments must file a motion pursuant to Fed. R. Civ. P. 59(e) or 60." Id. The Federal Rules require a party to file a motion under Rule 59(e) "no later than 28 days after the entry of judgment" and a motion under Rule 60(b) "within a reasonable time—and for reasons [under Rule 60(b) ](1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 59(e) & 60(c)(1). Thus, plaintiffs argue, their motion is timely under D. Kan. Rule 7.3(a).

Our court has recognized that "[s]ome uncertainty exists" under our court's local rules "whether orders disposing of some but not all claims are dispositive or non-dispositive[.]" Turner v. Nat'l Council of State Bds. of Nursing, Inc. , No. 11-2059-KHV, 2013 WL 139750, at *1 (D. Kan. Jan. 10, 2013) (citations omitted); see also Coffeyville Res. Refin. & Mktg., LLC v. Liberty Surplus Ins. Corp. , 748 F. Supp. 2d 1261, 1264 (D. Kan. 2010) (explaining "[t]here is some uncertainty whether orders disposing of some but not all claims ... are considered dispositive under the local rule").

Some judges have considered an order that disposes of some, but not all, claims as a non-dispositive order to which D. Kan. Rule 7.3(b) applies and requires filing a motion to reconsider within 14 days. See Jordan v. Sprint Nextel Corp. , 3 F. Supp. 3d 917, 935 (D. Kan. 2014) (concluding that plaintiff's motion to reconsider "fail[ed] procedurally" because plaintiff filed it more than 14 days after the court's order dismissing all but one of plaintiff's claims and one of two defendants, and thus, "the Order was not dispositive" and plaintiff "should have filed a motion to reconsider pursuant to D. Kan. Rule 7.3(b) within fourteen days of the Court's order"); see also Seyler v. Burlington N. Santa Fe Corp. , 121 F. Supp. 2d 1352, 1355 (D. Kan. 2000) (explaining that the court's "rulings ... were non-dispositive, in that they did not fully resolve the case and could be challenged by a timely motion under Rule 7.3(b)"). Other judges have concluded that such an order is a dispositive order because it disposes—at least partially—of a litigant's claims. See Great Plains Ventures, Inc. v. Liberty Mut. Fire Ins. Co. , No. 14-1136-JAR, 2016 WL 1715453, at *1 (D. Kan. Apr. 29, 2016) (concluding that the court's "partial grant of summary judgment was a dispositive order, as it was a decision on the merits that resolved some of Plaintiff's claims in the case"); see also Johnson v. Simonton Bldg. Props., Inc. , No. 08-2198, 2009 WL 902409, at *2 (D. Kan. Mar. 31, 2009) (finding that D. Kan. Rule 7.3(b), which "only applies to non-dispositive orders[,]" didn't apply to "the court's order" which "was dispositive because it terminated some of Plaintiffs’ claims" but concluding that "it is well within the court's discretion to revise an interlocutory order at any time prior to the entry of final judgment" under Fed. R. Civ. P. 54(b) and applying the Rule 59(e) and D. Kan. Rule 7.3(b) "legal standards" to the motion "which are essentially identical").

Here, the court concludes that it doesn't matter whether it treats plaintiffs’ motion as one asking for reconsideration of a dispositive order or a non-dispositive order. Even if plaintiff's motion is untimely under D. Kan. Rule 7.3(b), as explained below, it also fails on the merits under either Rule 59(e) ’s standard or D. Kan. Rule 7.3(b) ’s test which "are essentially identical." Johnson , 2009 WL 902409, at *2 ; see also Sperry v. Roberts , No. 5:18-cv-03120-HLT-GEB, 2021 WL 3668387, at *2 (D. Kan. July 13, 2021) (applying "the legal standards applicable to a Rule 59(e) motion to alter or amend and/or a motion to reconsider a non-dispositive order under Local Rule 7.3, which are essentially identical"); Stohr v. Scharer , No. 17-1018-JWB, 2019 WL 3034845, at *1 (D. Kan. July 11, 2019) (concluding that the "court need not resolve" whether D. Kan. Rule 7.3(a) or 7.3(b) applied to motion to reconsider because the motion at issue "invoke[d] a standard of review common to both types of motions" that "permits motions to reconsider based on: (1) an intervening change in the controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice").

Thus, the court proceeds to analyze plaintiffs’ Motion for Reconsideration under the governing legal standard.

II. Legal Standard

The grounds "warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000) (discussing Fed. R. Civ. P. 59(e) ’s requirements); see also D. Kan. Rule 7.3(b) (explaining reconsideration of non-dispositive orders must be based on "(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice"). "Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete , 204 F.3d at 1012 (citation omitted). But, it "is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing." Id. (citation omitted); see also Banister v. Davis , ––– U.S. ––––, 140 S. Ct. 1698, 1703, 207 L.Ed.2d 58 (2020) (explaining that, on a Rule 59(e) motion, "courts will not address new arguments or evidence that the moving party could have raised before the decision issued").

A district court has discretion to grant or deny a motion to reconsider. Hancock v. City of Okla. City , 857 F.2d 1394, 1395 (10th Cir. 1988). When reviewing a district court's decision to deny a motion to reconsider under the abuse of discretion standard, the Tenth Circuit has described a "clear error of judgment" to mean a district court's decision that was "arbitrary, capricious, whimsical, or manifestly unreasonable ...." Wright ex rel. Tr. Co. v. Abbott Labs., Inc. , 259 F.3d 1226, 1235–36 (10th Cir. 2001) (citation and internal quotation marks omitted). The Tenth Circuit has not defined "manifest injustice" in the Rule 59(e) context, but our court "has described the term to mean ‘direct, obvious, and observable error.’ " Hadley v. Hays Med. Ctr. , No. 14-1055-KHV, 2017 WL 748129, at *2 (D. Kan. Feb. 27, 2017) (quoting Tri-State Truck Ins., Ltd. v. First Nat'l Bank of Wamego , No. 09-4158-SAC, 2011 WL 4691933, at *3 (D. Kan. Oct. 6, 2011) ).

III. Analysis

Plaintiffs assert five arguments supporting their Motion for Reconsideration. The court addresses each one, below. None of them provide a reason to reconsider the June 23 Order.

A. The Court Didn't Clearly Err When Considering the Alleged Mail and Wire Fraud.

Plaintiffs argue the court got both the law and the facts wrong about the mail and wire fraud plaintiffs alleged as the predicate acts to support their RICO claim. The court disagrees.

First , plaintiffs contend the court misapplied the Tenth Circuit standard governing mail and wire fraud. Specifically, plaintiffs argue, the Mylan defendants misquoted a Tenth Circuit case, and thus misled the court to apply the wrong legal standard. Plaintiffs already made this argument in their summary judgment briefing. Doc. 2190-1 at 113 (Class Pls.’ Mem. in Opp'n to Defs.’ Mots. for Summ. J.) ("Defendants ...