United States District Court, S.D. New York
May 18, 2004.
In re OMEPRAZOLE PATENT LITIGATION
The opinion of the court was delivered by: BARBARA JONES, District Judge
On April 22, 2004, Special Master Peterson issued a Report and
Recommendation ("Report") suggesting that the Court grant Lek's request
to file its summary judgment motion earlier than the date set in Case
Management Plan of December 16, 2003 ("Plan") for the filing dispositive
motions. For the reasons below, the Court adopts the Report and
Recommendation in its entirety.
According to the Plan entered in this case, dispositive motions are due
to be served on October 19, 2004. The Plan includes a provision, however,
that allows parties to depart from this schedule:
The parties may . . . request that the Court
hear a dispositive motion earlier upon a showing
that all reasonably requested discovery relating
to such motion has been completed. In such event,
a briefing schedule will be set by the Court.
In a letter to the Special Master, dated February 27, 2004, Lek
requested leave to file a dispositive motion in advance of the date set
by the Plan. The Special Master issued a well-reasoned Report finding that Lek made "the requisite
showing that all reasonably requested discovery relating to" its motion
had occurred, and recommending that the Court allow Lek to file its
dispositive motion early. Report at 4-8.
In reaching this conclusion, the Special Master rejected Astra's claim
that there were significant areas of discovery that needed to be
completed prior to Lek's filing. Rather, the Special Master observed that
fact discovery vis-á-vis Lek has been closed for four
months, that significant amounts of discovery of Lek's experts had
occurred, and that Lek conceded that it would not address in its motion
areas that were not a matter of previously made discovery. Report at 6-7.
In addition, he stated that Astra would be free to move, pursuant to
Rule 56(f), for additional time to oppose Lek's motion if it needed to
conduct additional discovery. Report at 7.
Although the Special Master acknowledged that it would likely be more
orderly for dispositive motions to be filed upon the close of expert
discovery, he noted that Astra did not previously object to the provision
in the Order that allowed earlier filing of dispositive motions, and in
fact relied on it during pervious arguments before him. Moreover, he
found that "Astra has also not made a persuasive showing . . . that addressing such a motion earlier than
scheduled . . . would be unduly disruptive on the balance of the
schedule." Report at 2, 9.
Lastly, in support of his recommendation, the Special Master cited that
the purpose of summary judgment, "to move "from allegations and denials
to more searching fact-based analysis,'" would be served by allowing Lek
to file its motion early, especially in light of the "substantial
discovery" exchanged in this case to date. Report at 7, 9 (quoting
Moore's Federal Practice-Civil § 56.02(2004)).
a. Standard of Review
The Court reviews de novo those portions of the Report that Astra has
objected to, and "may adopt or affirm; modify; wholly or partly reject or
reverse" the Report pursuant to Federal Rule of Civil Procedure 53.
See F.R.C.P. 53(g)(3) (4).
b. Astra's Objections
Astra objects to the Report on several grounds. See Ltr. from
Astra to the Hon. Barbara S. Jones, dated April 26, 2004 (4/26/04 Ltr.).
First, Astra argues that Let did not show a compelling reason why the
consolidated schedule set in this case should not be adhered to." 4/26/04
Ltr. at 1-2. As stated above, however, the language in the Plan requires
only a "showing that all reasonably requested discovery relating to such motion has been completed," and not a
"compelling reason." The Special Master found, after an in-depth review
of the discovery made to date and of Lek's representations regarding the
content of its summary judgment motion, that Lek has met its burden. The
Court agrees that Lek has made a showing that all reasonably requested
discovery was completed in order for it to submit its own summary
judgment papers. As Astra points out, however, there is substantial
expert discovery that has not been completed. If, after receiving Lek's
motion, Astra believes it requires more discovery to properly and fully
respond, Astra may, of course, file a motion pursuant to Fed.R.Civ.P.
56(f)*fn1 in lieu of opposition papers.
Second, Astra contends that allowing Lek to file a motion earlier than
the other Defendants contravenes the MDL Panel's principles behind
consolidation, such as efficiency and coordination. 4/26/04 Ltr. at 2.
But, as the Special Master noted, this argument would have been properly
asserted as an objection to the Plan that contained this provision, not
when one of the parties attempts to take advantage of the provision. Third, Astra asks the Court to reject the Report because of the
hardship Astra would suffer in drafting an opposition to Lek's summary
judgment motion while conducting extensive expert discovery. Astra has
not shown, however, that it would suffer such extreme hardship that it
would justify departure from the standards explicit in the Plan for
granting a motion to file a dispositive motion early.
For the reasons stated above, the Court adopts the Special Master's
Report and Recommendation. Lek may file a dispositive motion in advance
of the October 19 date set by the Plan.