UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 17, 2012
ROBERT REID, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED,
JOHNSON & JOHNSON AND MCNEIL
NUTRITIONALS, LLC, DEFENDANTS.
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING DEFENDANTS' EX PARTE
MOTION TO FILE SUPPLEMENTAL AUTHORITY IN SUPPORT OF
DEFENDANTS' MOTION TO DISMISS [doc. #46]
Defendants seek to file supplemental authority in support of their motion to dismiss. (Doc. 46.) In the alternative, Defendants move to strike portions of the complaint. (Id.) Specifically, Defendants wish to supplement the record with: (1) a recent Ninth Circuit decision, Carrea v. Dreyer's Grand Ice Cream, Inc., 2012 WL 1131526 (9th Cir. 2012) and (2) the February 21, 2012 Federal Register, 77 Fed. Reg. 9842.
The Court finds that Defendants show good cause here for supplementing the record. The Ninth Circuit's Carrea decision, although unpublished, directly concerns Defendants' express preemption argument in their motion to dismiss. (MTD at 10--14.)
The February 21, 2012 Federal Register states that the FDA intends to extend the period of time it exercises "enforcement discretion concerning the health claim for phytosterols and risk of coronary heart disease[.]" 77 Fed. Reg. 9842 (2012). The FDA's position, as stated in the Federal Register, directly concerns Defendants' argument that Plaintiff's claims are barred by the primary jurisdiction doctrine. (MTD at 15--18.) Because the Federal Register was published after the briefing closed on the motion to dismiss, Defendants are not at fault for bringing this matter to the Court's attention at this time. In addition, Defendants would be prejudiced if the Court does not consider this recent federal administrative record in its order for claims surrounding plant stanol esters. Accordingly, the Court will grant Defendants' application to file supplemental authority.
Based on the foregoing, the Court hereby GRANTS Defendants' ex parte application to file supplemental authority in support of Defendants' motion to dismiss with the decision from Carrea v. Dreyer's Grand Ice Cream, Inc., 2012 WL 1131526 (9th Cir. 2012) and to file supplemental authority in support of Defendants' motion to dismiss with the February 21, 2012 Federal Register, 77 Fed. Reg. 9842 (2012).
IT IS SO ORDERED.
COPY TO: HON. BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL
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