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Charo Orosa, An Individual v. Therakos Inc.

April 11, 2013

CHARO OROSA, AN INDIVIDUAL, PLAINTIFF,
v.
THERAKOS INC., A CORPORATION; JOHNSON & JOHNSON, INC., A CORPORATION,
DEFENDANT.



The opinion of the court was delivered by: Judge Jon S. Tigar

JOINT STATEMENT REGARDING INABILITY TO STIPULATE REGARDING LEAVE TO AMEND COMPLAINT AND [PROPOSED] ORDER SETTING LIMITED CASE MANAGEMENT SCHEDULE

Plaintiff Charo Orosa ("Plaintiff") and Defendants Therakos, Inc. and Johnson & Johnson (together, "Defendants")(Plaintiff and Defendants will be collectively referred to as the "Parties") 3 hereby submit the following joint statement, by and through their respective counsel, as follows: 4

Whereas, at the March 19, 2013 case management conference ("CMC"), the Court 5 directed the parties to meet and confer to determine if Defendants would stipulate that Plaintiff be 6 granted leave to file an amended complaint; 7

Whereas, at the CMC, the Court directed the Parties to notify the Court, by April 9, 2013, 8 whether the Parties stipulated that Plaintiff be granted leave to file an amended complaint; 9

Whereas, at the CMC, the Court directed the Parties to provide the Court, by April 9, 2013, a proposed case management schedule; 11

Whereas, on March 26, 2013, Plaintiff provided Defendants with a copy of her proposed 12 third amended complaint; 13

Whereas, on April 2, 2013, Defendants notified Plaintiff that Defendants would stipulate 14 that Plaintiff be granted leave to file her third amended complaint except as to the portion of 15 Plaintiff's new causes of action which are predicated upon Plaintiff's alleged subjection to 16 retaliation for purportedly "raising concerns" regarding newly-specified acts of off-label 17 promotion. Defendants explained that Plaintiff's knowledge of what she purportedly opposed 18 during her employment, which ended in 2010, necessarily pre-dates the filing of her initial 19 complaint in 2011 and thus any effort to rely on such allegations now as a basis to amend her 20 complaint two years later constitutes undue delay and suggests a bad faith or dilatory motive; 21

Whereas, on April 2, 2013, Defendants also notified Plaintiff that any stipulation to file an 22 amended complaint would remain subject to Defendants' reservation of their right to move to 23 dismiss or strike Plaintiff's newly added causes of action. Defendants explained that, based upon 24 their initial review, Plaintiff's new causes of action would be subject to dismissal (or portions 25 being struck) on the grounds of, inter alia, lack of standing, preemption, constitutionally 26 protected activity, mootness and privilege; 27

Whereas, on April 8, 2013, Plaintiff notified Defendants that she accepted defendants' reservation of rights and defenses as to any new claims, but disputed their assertion that any 2 allegation that she "raised concerns" of off-label use and suffered retaliation as a result were "new 3 allegations", and pointed out that the same or very similar allegations already existed in par. 19 of 4 the current complaint, and on that basis asked defendants to reconsider their stated position to 5 limit the new causes of action because the basis for the desired limitation was not accurate.; 6

Whereas, based upon the above-described meet and confer discussions, the Parties were 7 unable to stipulate that Plaintiff be granted leave to file her amended complaint; 8

Whereas, based upon the above-described meet and confer discussions, Defendants intend 9 to oppose Plaintiff's motion for leave to file an amended complaint; 10

Whereas, the Court's February 11, 2013 Reassignment Order vacated all law and motion 11 hearing dates, pretrial conferences and the trial date in this matter; and 12 Therefore, the Parties, by and through their counsel, hereby stipulate and agree to the 13 following limited case management schedule: 14

a. Last day to file Plaintiff's motion for leave to file her amended complaint: April 24, 2013; 16

b. Last day for Defendants to file their opposition to Plaintiff's motion for leave to ...


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