Pizana v. Sanmedica Int'l LLC
Decision Date | 26 April 2022 |
Docket Number | 1:18-cv-00644-DAD-SKO |
Parties | RAUL PIZANA, Plaintiff, v. SANMEDICA INTERNATIONAL LLC, Defendant. |
Court | U.S. District Court — Eastern District of California |
ORDER GRANTING PLAINTIFF'S MOTIO TO MODIFY THE SCHEDULING ORDER AND FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT (Doc. No. 118)
This matter is before the court on plaintiff Raul Pizana's motion to modify the scheduling order and for leave to file a third amended complaint filed on December 23 2020.[1] (Doc. No. 118.) Pursuant to General Order No. 617 addressing the public health emergency posed by the COVID-19 pandemic, plaintiff's motion was taken under submission on the papers. (Doc. No. 128.)
For the reasons explained below, the court will grant plaintiff's pending motion.
Plaintiff filed this putative class action on May 9, 2018, challenging the advertising and efficacy of SeroVital-hgh (“SeroVital”), a purported human growth hormone supplement produced by defendant SanMedica International LLC (“SanMedica”). (Doc. No. 1 at ¶¶ 1-3.) On June 30, 2018, plaintiff filed a first amended complaint as a matter of course (Doc. No. 13), and defendant responded by filing a motion to dismiss. (Doc. No. 25.) The court denied defendant's motion to dismiss, except with regard to one of plaintiff's claims that was dismissed with leave to amend. (Doc. No. 50.) On November 13, 2019 plaintiff filed the operative second amended complaint (“SAC”), alleging three causes of action under state law for violations of: (1) the California Consumer Legal Remedies Act (“CLRA”) (Cal. Civ. Code § 1750, et seq.); (2) the California False Advertising Law (“FAL”) (Cal. Bus. Prof. Code § 17500, et seq.); and (3) the California Unfair Competition Law (“UCL”) (Cal. Bus. Prof. Code § 17200, et seq.). (Doc. No. 53 at 20-24.) On December 13, 2019, defendant answered the SAC. (Doc. No. 60.)
On March 5, 2020, a scheduling conference was held, and the assigned magistrate judge thereafter issued a scheduling order for class certification deadlines, including that “[a]ny motions or stipulations requesting leave to amend the pleadings . . . be filed by no later than June 15, 2020.” (Doc. Nos. 73; 74 at 1.) The scheduling order also provided that class certification discovery was to be completed by no later than December 18, 2020, and that any motion for class certification was to be filed by January 21, 2021. (Id. at 2.) That scheduling order did not set any other discovery or motion filing deadlines.
Discovery commenced with plaintiff serving discovery requests on defendant on April 13, 2020, to which defendant responded by producing “a few thousand pages of documents” on July 13, 2020 and turning over “nearly one million pages in records” on August 13, 2020. (Doc. No. 118 at 11.) Depositions of the eight witnesses designated by defendant under Rule 30(b)(6) were taken on September 8, 9, 10, and 14, 2020; November 12, 17, 18, and 19, 2020; and December 8, 2020.2 (Id. at 12-13.)[2] The court observes that the discovery phase of this litigation has apparently been somewhat contentious with both sides filing several discovery-related motions.[3]
In light of the information plaintiff learned during discovery, on December 23, 2020, plaintiff filed the pending motion to modify the scheduling order and for leave to file a third amended complaint. (Doc. No. 118.) Defendant filed an opposition to the pending motion on January 15, 2021, and plaintiff filed his reply thereto on January 29, 2021. (Doc. Nos. 139, 144.)
In his pending motion, plaintiff contends that during the Rule 30(b)(6) depositions taken in September and November 2020, new facts arose that warrant an amendment to the pleadings in order to seek to add fifteen new defendants, new claims, new products, and eight new plaintiffs who allegedly purchased some of the new products. (Doc. Nos. 118 at 12-13; 118-9 at 1.) Specifically, plaintiff claims these new facts reveal that defendant is part of a web of affiliated entities and individuals operating a single enterprise (referred to by plaintiff as the “Basic Research Enterprise”) with a unified aim to manufacture, market, and sell the same product under different brand names based on the same purportedly faulty science and false representations.[4] (Doc. Nos. 118 at 7-9; 144 at 6 n.1.)
In opposing the pending motion, defendant argues, among other things, that “much of the information” in question was available to plaintiff and his counsel before this case was filed and plaintiff could have learned of these purportedly “new” facts earlier from three other similar lawsuits that plaintiff's counsel either knew about or were involved in. (Doc. No. 139 at 5.)
In reply, plaintiff counters that it was not possible to infer the complicated web of entities associated with defendant that was uncovered during the September and November 2020 depositions from the other lawsuits. (Doc. No. 144 at 6.)
The new information that plaintiff claims he learned from the depositions of defendant's Rule 30(b)(6) witnesses falls into two categories: (i) facts about the alleged Basic Research Enterprise's sprawling corporate structure; and (ii) facts about new products that are substantially similar, if not identical to, SeroVital. (Doc. No. 118 at 13-17.) Plaintiff purportedly first learned of this information during the depositions of defendant's corporate representatives: Gina Daines, Amy Heaton, Brokk Mowrey, Matthew Draper, Bradley Skinner, Jim Kreeck, Evan Strassberg, and Alexis Timpson. (Id. at 13.)
In regard to the first category of new information, plaintiff claims that he began to unravel the corporate structure during the depositions when each of defendant's Rule 30(b)(6) witnesses were asked which company they worked for, and their responses varied. (Id. at 14-15.) For example, plaintiff maintains that several of the witnesses testified that they worked for affiliates of defendant or merely, “Basic Research”: (i) Alexis Thomson (September 8, 2020) testified that she worked for Basic Research; (ii) Jim Kreeck (September 14, 2020) testified that he worked for Bydex Management, which was described as the “employee leasing company” that is located in the same building as Basic Research; (iii) Brokk Mowrey (November 18, 2020) testified that he worked for Bydex Management but was also director of operations at Basic Research; (iv) Amy Heaton (November 17, 2020) testified that she worked for Bydex Management, which is “part of the Basic Research family of companies, ” but was also the chief scientific officer of Basic Research and its “R&D arm” (which is another entity called Sierra Research) and that she was also the former director of scientific affairs at Limitless Worldwide, “another brand, similar to the other Basic Research family of brands for which Sierra [Research] develops products”; and (v) Brad Skinner (September 10, 2020) testified that he worked for Basic Research but was employed by Majestic Media. (Id. at 14-15.) These various different answers from the Rule 30(b)(6) witnesses indicated to plaintiff's counsel that the alleged Basic Research Enterprise had a complex corporate structure. (Id. at 15.) But it was not until the deposition of Gina Daines on November 19, 2020 that the scope of the alleged Basic Research Enterprise became fully known to plaintiff. (Id.)
In her deposition, Daines testified that the alleged Basic Research Enterprise is closely held by family members, including Daines and her siblings Bodee Gay, Haley Blackett, and Kimm Humphries, who acquired ownership in companies “affiliated with ‘Basic Research'” after their father passed away in 2018. (Id.) Daines also testified that Mitchell K. Friedlander-one of the individuals that plaintiff now seeks to add as a named defendant in this action and the purported inventor of SeroVital-was involved in SeroVital's marketing, and that he too holds an ownership interest in the alleged Basic Research Enterprise. (Id.) Daines further testified as to the general corporate structure of the alleged Basic Research Enterprise, confirming that it is made up of one or more holding companies with numerous wholly-owned subsidiary affiliates, and that these entities are engaged in a unified business of developing, manufacturing, distributing, and selling dietary supplements. (Id. at 16.) Based on Daines' testimony, coupled with the information regarding other entities that plaintiff learned from the other depositions, plaintiff alleges that each of those entities are wholly-owned affiliates and subsidiaries of different holding companies that, like defendant SanMedica, perform a particular function within the alleged Basic Research Enterprise, and that all employees working for the affiliate entities perform work on behalf of the alleged Basic Research Enterprise. (Id. at 16-17.)
In regard to the second category of information revealed during depositions, plaintiff contends that he learned that two other products-GF-9 and Thrive-used the same science, substantiation, formulation, and manufacturing specifications as defendant's SeroVital, but were merely “branded under different names.”[5] (Id. at 15-16.) Plaintiff further alleges that SeroVital and all its related products are not only identical, but also are manufactured by different entities within the alleged Basic Research Enterprise that operate out of the same principal place of business in Salt Lake City, Utah. (Id. at 15-17.)
Based on this allegedly new information obtained during the September and November 2020 depositions, plaintiff seeks leave to file a third amended complaint...
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