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Amylin Pharmaceuticals, Inc. v. Eli Lilly and Co.

August 31, 2011

AMYLIN PHARMACEUTICALS, INC.
PLAINTIFF,
v.
ELI LILLY AND CO. DEFENDANT.



The opinion of the court was delivered by: Hon. Nita L. StormesU.S. Magistrate Judge

ORDER DENYING RENEWED REQUEST FOR EARLY NEUTRAL EVALUATION, DISCOVERY CONFERENCE, AND STATUS/CASE MANAGEMENT CONFERENCE

[Docket No. 79.]

Presently before the Court is a Renewed Request for Early Neutral Evaluation by Plaintiff Amylin Pharmaceutical, Inc. ("Amylin"). [Docket No. 79.]

PROCEDURAL BACKGROUND

On May 15, 2011, Amylin filed a Complaint alleging claims for breach of contract and anticompetitive conduct against Defendant Eli Lilly and Co. ("Lilly"). Amylin accuses Lilly of agreeing to market Amylin's diabetes drug and then agreeing with Boehringer Ingelhiem BmbH ("BI") to market its diabetes drug in a preferred position over Amylin's product. On the same day, Amylin also filed a Motion for a Temporary Restraining Order ("TRO"). [Docket Nos. 1, 2.] The Motion for a TRO was granted on May 23, 2011. [Docket No. 14.] On June 8, 2011, the Court vacated the TRO and denied a Motion for Preliminary Injunction. [Docket No. 44.] On June 9, 2011, the Court Granted a Joint Motion to extend the time for Lilly to respond to the complaint to July 11, 2011. [Docket No. 48.] On the same day, Amylin filed a Motion for an Injunction Pending an Appeal of the Order Denying a Preliminary Injunction. The Court denied that motion. [Docket Nos. 50, 51.] On June 10, 2011, Amylin filed an appeal of the Order denying the Motion for Preliminary Injunction. [Docket No. 52.] The Ninth Circuit denied Amylin's request for immediate interim injunctive relief and Amylin's emergency motion for injunctive relief pending appeal. [Docket Nos. 56, 57.]

On June 30, 2011, Amylin filed the Request for Early Neutral Evaluation, Discovery Conference, and Status/Case Management Conference. [Docket No. 67.] On July 1, 2011, Lilly filed a Motion to Stay this action pending Mediation, claiming that the parties are contractually obligated to submit the dispute to certain agreed-upon mediation procedures prior to litigation. [Docket No. 70.] On July 5, 2011, Lilly filed an Opposition to the Request for Early Neutral Evaluation, Discovery Conference, and Status/Case Management Conference. [Docket No. 71.]

On July 6, 2011, this Court denied the Request for Early Neutral Evaluation, Discovery Conference, and Status/Case Management Conference. [Docket No. 72.] The Court reasoned that Local Rule 16.1(c)(1) only provides for an Early Neutral Evaluation after an Answer has been filed and no Answer was on file at the time. The Court also looked at the provision of Local Rule 16.1(c)(1) providing that any party may request the court to hold an early neutral evaluation conference, discovery conference or status/case management conference. . . . Upon receiving such request, the judicial officer will examine the circumstances of the case and the reasons for the request and determine whether any such conference would assist in the reduction of expense and delay [in] the case.

The Court rejected Amylin's argument that discovery must commence in order to have meaningful settlement discussions because the Local Rules do not contemplate discovery prior to the Early Neutral Evaluation. The Court also declined to circumvent the private mediation procedures previously agreed to by the parties. Finally, the Court rejected Amylin's argument that its ongoing harm required immediate discovery, reasoning that the presiding trial Judge and the Ninth Circuit have both declined to issue a preliminary injunction.*fn1

The parties agreed to private mediation and filed a joint motion to withdraw the Motion to Stay. [Docket No. 76.] On August 26, 2011, the parties filed a notice that the mediation had taken place on

August 11-12, 2011, but was unsuccessful. [Docket No. 78.] Also on August 26, 2011, Amylin filed the Renewed Request for Early Neutral Evaluation currently before the Court. [Docket No. 79.]

DISCUSSION

A. The Federal Rules of Civil Procedure and the Local Rules

Amylin argues that Rule 16 requires a scheduling Order to issue within 120 days after service of the complaint. Rule 16 provides:

(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge--or a magistrate judge when authorized by ...


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