UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: David E. Stanley (SBN ) dstanley@reedsmith.com Karen Wan (SBN ) kwan@reedsmith.com REED SMITH LLP South Grand Avenue, Suite 00 Los Angeles, CA 00- Telephone: () -000 Facsimile: () -00 Mark H. Lynch (admitted pro hac vice) mlynch@cov.com Michael X. Imbroscio (admitted pro hac vice) mimbroscio@cov.com Phyllis A. Jones (admitted pro hac vice) pajones@cov.com Michael M. Maya (admitted pro hac vice) mmaya@cov.com COVINGTON & BURLING LLP One CityCenter 0 Tenth Street, N.W. Washington, D.C. 00- Telephone: () -000 Facsimile: () - Attorneys for Defendant ELI LILLY AND COMPANY UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA DR. MELISSA STRAFFORD, CAROL JACQUEZ, and DAVID MATTHEWS, JR., on behalf of themselves and all other persons similarly situated, Plaintiffs, v. ELI LILLY AND COMPANY, an Indiana corporation, Defendant. No. :-cv-0-svw-man DEFENDANT ELI LILLY AND COMPANY S OPPOSITION TO PLAINTIFFS MOTION TO SET ASIDE DISMISSALS AND REOPEN THE CASE No. :-cv-0-svw

2 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... BACKGROUND... A. District Court Proceedings... B. Ninth Circuit Proceedings... ARGUMENT... I. The Supreme Court s Decision in Microsoft Does Not Warrant Reopening This Case.... II. A. Plaintiffs Cannot Use Rule 0(B) To Avoid The Foreseeable Consequences Of Their Strategic Decision To Dismiss Their Claims With Prejudice.... B. The Supreme Court s Resolution of a Circuit Split in Microsoft Does Not Constitute An Extraordinary Change In The Law.... C. Plaintiffs Were Not Diligent In Seeking To Reopen The Case.... D. Reopening The Case Would Upset Lilly s Reliance Interest In The Finality Of The Case.... E. The Delay Between The Final Judgment and the Rule 0(b) Motion Favors Denial of the Motion.... F. The Relationship Between Microsoft and This Court s Dismissal Does Not Justify Reopening The Case.... G. Plaintiffs New-Found Desire To Litigate Their Individual Claims Does Not Warrant Reopening The Case.... The Ninth Circuit s Decision In Davidson Does Not Warrant Reopening The Case.... CONCLUSION... Page No. :-cv-0-svw i

3 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: Cases TABLE OF AUTHORITIES Page(s) Ackermann v. United States, 0 U.S. (0)..., Ali v. Eli Lilly & Co., No. - (E.D. Va. Sept., )... Camasta v. Jos. A. Bank Clothiers, Inc., F.d (th Cir. )... Camesi v. Univ. of Pittsburgh Med. Ctr., F.d (d Cir. )... Chavez v. Illinois State Police, F.d (th Cir. 0)... City of Los Angeles v. Lyons, U.S. ()... Connelly v. Hilton Grand Vacations Co., LLC, WL (S.D. Cal. Nov., )... passim Dannenberg v. Software Toolworks, Inc., F.d (th Cir. )... Davidson v. Kimberly-Clark Corp., F.d 0 ()...,,, DeWeerth v. Baldinger, F.d (d Cir. )... Gest v. Bradbury, F.d (th Cir. 0)... Gonzalez v. Crosby, U.S. (0)...,, Herrera v. Eli Lilly & Co., No. -0 (C.D. Cal. Aug., )... No. :-cv-0-svw ii

4 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: Hexum v. Eli Lilly & Co., No. -00 (C.D. Cal. Aug., )... Kramer v. Gates, F.d (D.C. Cir. 0)..., Latshaw v. Trainer Wortham & Co., F.d (th Cir. 0)... Liberty Mutual Ins. Co. v. Wetzel, U.S. ()... Lopez v. Ryan, F.d (th Cir. )..., Mackey v. Hoffman, F.d (th Cir. )... McDowell v. Eli Lilly & Co., F. Supp. d (S.D.N.Y. )... McNair v. Synapse Grp. Inc., F.d (d Cir. )... Microsoft v. Baker, S. Ct. 0 ()... passim Moses v. Joyner, F.d (th Cir. )... Nicosia v. Amazon.com, Inc., F.d (d Cir. )... Paul Revere Variable Annuity Ins. Co. v. Zang, F.d (st Cir. 0)... Phelps v. Alameida, F.d (th Cir. 0)...,,, Plotkin v. Pacific Tel. & Tel. Co., F.d (th Cir. )... Rhodes v. E.I. DuPont de Nemours & Co., F.d (th Cir.) ()... No. :-cv-0-svw iii

5 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: Rhodes v. Raytheon Co., F. App'x (th Cir. )... Satterfield v. District Attorney Philadelphia, F.d (rd Cir. )..., U.S. ex. rel. Technica, LLC v. Carolina Cas. Ins. Co., WL (S.D. Cal. Apr., )... United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., F.d (th Cir. 0)... United States v. Alexander, F.d (th Cir. )... Williams v. Woodford, F.d (th Cir. 0)..., Wolff v. California, F. Supp. d (C.D. Cal. )..., Statutes and Rules U.S.C....,, Federal Rule of Civil Procedure...,, Federal Rule of Civil Procedure 0... passim No. :-cv-0-svw iv

6 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 INTRODUCTION Plaintiffs voluntarily dismissed their claims with prejudice based on a calculated and deliberate decision that seeking immediate appellate review of this Court s classcertification orders was more important than litigating their individual claims on the merits. When Plaintiffs chose this strategy, they knew that Defendant Eli Lilly & Co. ( Lilly ) considered the voluntary-dismissal tactic improper and would challenge the Ninth Circuit s jurisdiction. Plaintiffs also knew (or certainly should have known) that the circuits were split on whether a putative class-action plaintiff could use the voluntarydismissal tactic to manufacture appellate jurisdiction, and that Microsoft had filed a petition for certiorari urging the Supreme Court to resolve the circuit split. Plaintiffs seek to reopen this case under Federal Rule of Civil Procedure 0(b)(), because the Supreme Court s decision in Microsoft v. Baker, S. Ct. 0 (), has caused them to regret the strategic choice they made. But given the strong interest in finality of judgments, relief under Rule 0(b)() is reserved for extraordinary circumstances, and courts have consistently held that a plaintiff cannot be relieved of the consequences of a considered choice even when hindsight seems to indicate to him that his decision was probably wrong. Wolff v. California, F. Supp. d, (C.D. Cal. ) (quotations marks and citations omitted). As the Supreme Court explained, [t]here must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from. Ackermann v. United States, 0 U.S., (0). The D.C. Circuit recently surveyed the Ackerman line of cases and concluded: The case law makes clear that Rule 0(b)() is not an opportunity for unsuccessful litigants to take a mulligan. Kramer v. Gates, F.d, (D.C. Cir. 0) (quotation marks and citations omitted). These decisions preclude Plaintiffs from obtaining relief based on the Supreme Court s decision in Microsoft. Plaintiffs voluntarily assumed the risk that they would lose their individual claims forever if the Supreme Court held that the voluntary-dismissal No. :-cv-0-svw

7 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: tactic did not create appellate jurisdiction. Plaintiffs cannot be saved from their strategic choice simply because a known and foreseeable risk actually materialized. Even putting aside the fact that the Court s judgment resulted from Plaintiffs deliberate trial strategy, Plaintiffs are not entitled to the extraordinary relief of reopening a final judgment because they have not met the other considerations for Rule 0(b) relief. Plaintiffs rely heavily on the unpublished decision in Connelly v. Hilton Grand Vacations Co., LLC, WL (S.D. Cal. Nov., ), but that decision does not support relief in this case for numerous reasons. Importantly, the defendant in Connelly did not oppose appellate review of the class-certification orders; it stipulated to dismissal of the plaintiff s claims and expressly agreed that the voluntary-dismissal tactic created appellate jurisdiction. Thus, the Supreme Court s decision in Microsoft upset both parties expectations, unlike here, where the parties disagreement was clear and Plaintiffs understood that Microsoft would decide the fate of their claims. Finally, Plaintiffs also suggest that the Court should reopen the case based on the Ninth Circuit s decision in Davidson v. Kimberly-Clark Corp., F.d 0 (). But that decision does not conflict with this Court s dismissal of Plaintiffs requests for injunctive and declaratory relief. This Court held that Plaintiffs lacked standing to seek such relief because they had not alleged any intent to purchase Cymbalta in the future. That holding follows directly from Supreme Court precedent, and thus cannot be undermined by a recent Ninth Circuit decision. In Davidson, the Ninth Circuit held that the plaintiff had sufficiently alleged an injury to support standing because she wanted to keep purchasing the product and would do so if the purportedly misleading label were changed. F.d at. Because Plaintiffs have never made this sort of allegation, Davidson does not help them. Plaintiffs motion for the extraordinary relief of reopening this case should be denied. No. :-cv-0-svw

8 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: A. District Court Proceedings BACKGROUND In October, Plaintiffs filed this putative class action contending that they and other persons similarly situated were harmed by alleged misrepresentations made by Lilly regarding Cymbalta s potential discontinuation symptoms. (Dkt..) As amended, the complaint asserted claims under the consumer protection statutes of California, Massachusetts, Missouri, and New York on behalf of Plaintiffs and all similarly situated individuals in those states. Plaintiffs sought injunctive, declaratory, and monetary relief related to their purchases of Cymbalta. (Dkt., at,.) Plaintiffs principal allegation was that Lilly misrepresented the frequency, severity, and/or duration of potential symptoms when discontinuing treatment with Cymbalta. (Id..) Even though Lilly included a detailed, three-paragraph warning concerning these symptoms in Cymbalta s package insert, Plaintiffs take issue with Lilly s listing of the symptoms seen in Cymbalta s clinical trials that occurred at a rate greater than or equal to % and at a significantly higher rate in [Cymbalta]-treated patients compared to those discontinuing from placebo. (Id..) Rather than list all of the individual symptoms that occurred above a minimal threshold, Plaintiffs assert that Lilly should have included the total percentage of patients who experienced at least one symptom, which in some Cymbalta trials was or percent of patients. (Id..) In January, Lilly moved to dismiss Plaintiffs claims on the grounds that they were barred by the learned intermediary doctrine and that Plaintiffs lacked standing to Plaintiffs continued to rely on this theory even after a federal court and a jury both found that Cymbalta s discontinuation warning was adequate. See McDowell v. Eli Lilly & Co., F. Supp. d, 0-0 (S.D.N.Y. ) (finding Cymbalta label adequate as matter of law); Ali v. Eli Lilly & Co., No. - (E.D. Va. Sept., ) (jury verdict finding label to be adequate). Plaintiffs have not prevailed on failure-to-warn tort claims in any case, including those in this Court. Herrera v. Eli Lilly & Co., No. -0 (C.D. Cal. Aug., ) (jury verdict rendered for Lilly); Hexum v. Eli Lilly & Co., No. -00 (C.D. Cal. Aug., ) (directed verdict for Lilly). No. :-cv-0-svw

9 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: seek injunctive and declaratory relief. The Court dismissed Plaintiffs requests for injunctive and declaratory relief because Plaintiffs ha[d] failed to allege that they intend to purchase Cymbalta in the future and were also now aware of the alleged risks of Cymbalta discontinuation. (Dkt., at.) The District Court held that the learned intermediary doctrine did not bar Plaintiffs from stating a claim under state consumer protection statutes, but emphasized that the doctrine still could apply at a later stage of the proceedings to preclude Plaintiffs from recovering. (Id. at -.) The court invited Lilly to move for summary judgment on this question. (Hr g Tr. at (Feb., ).) Rather than permitting the parties to blindly begin discovery in connection with Lilly s summary judgment motion, the court directed Lilly to file its motion for summary judgment and indicated that Plaintiffs could respond by filing a motion under Rule (d) to explain what discovery they would need to respond to Lilly s motion. (Id. at -.) Plaintiffs did as the court suggested, and on May,, the Court issued an order in response to Plaintiffs motion. The court explained that its evaluation of Lilly s motion for summary judgment would involve two determinations: ) whether the learned intermediary doctrine applies to Plaintiffs claims; and ) if so, whether there is a genuine issue of fact that would bar Defendant s motion of summary judgment. (Dkt., at.) Although resolution of the second question would require discovery on the adequacy of Lilly s warnings to physicians and issues of causation, the first question was a purely legal question for which no discovery [was] required. (Id.) Accordingly, the Court ordered Plaintiffs to file their opposition to Lilly s motion for summary judgment addressing this legal issue, after which the Court would consider what discovery might be required. (Id.) In June, the Court ruled, based on the great weight of authority, that the learned intermediary doctrine applied to the consumer protection claims in this case. (Dkt., at.) Under this doctrine, Lilly would prevail if it establish[ed] that it adequately warned prescribing physicians not consumers of the effects of Cymbalta withdrawal. (Id.) The Court further recognized that [a]lthough the question of whether No. :-cv-0-svw

10 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: or not the warnings... were inadequate or misleading may be capable of resolution on class-wide basis, the question of whether or not, had the warnings been adequate, each plaintiff would not have taken Cymbalta are not. (Id. at.) Continuing its careful management of the case, the Court directed that in the interests of judicial economy, the appropriate next step [was] for the parties to brief the issue of class certification on the assumption that that the warnings given to physicians were inadequate as alleged. (Id. at.) This sensible framing eliminated the need for extensive discovery on the issue of the adequacy of the warnings and enabled the parties and the Court to focus on the dispositive issue of whether the case could be maintained as a class action if Pplaintiffs allegations were correct. Pursuant to the Court s direction, in August, Plaintiffs moved for certification of classes of consumers in four states. This Court denied Plaintiffs motions on December,. (Dkt..) The Court first concluded that the conjoint-analysis methodology proposed by Plaintiffs expert, Dr. Hay, was highly flawed. (Id. at.) The Court explained that Dr. Hay s plan to conduct a subjective inquiry of what an average consumer wants was unsupported by the case law and, given the inefficiency of the market for prescription pharmaceuticals, would not be capable of demonstrating that any individual overpaid for Cymbalta. (Id. at -.) The Court also held that the motions failed for the independent reason that Plaintiffs could not prove causation or injury on a classwide basis. The Court noted that, unlike in the typical consumer protection case, Plaintiffs claimed they could demonstrate these elements of their claims irrespective of price. (Id. at.) They attempted to do this by focusing on class members subjective disappointment with the product received. (Id. at -.) Assuming this was a cognizable harm, the Court held that the existence and degree of Plaintiffs claimed injury will differ based on each individual s (or the individual s physician s) consideration of Cymbalta s withdrawal symptom risk relative to Cymbalta s other attributes. (Id. at.) No. :-cv-0-svw

11 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: Plaintiffs thereafter petitioned for interlocutory review of the order under Rule (f), which the Ninth Circuit denied in March. Plaintiffs then moved again for class certification. This time, they sought certification of classes of Cymbalta purchasers only in Massachusetts and New York, and they requested statutory damages of $ or $0 for each consumer. Although Plaintiffs limited the amount of their claimed recovery to these token amounts, they maintained that their theory of injury was unchanged that Lilly overcharg[ed] consumers by maintaining a price premium for Cymbalta, thereby causing consumers to spend additional money on the medication. (Dkt., at,.) In July, the Court denied Plaintiffs second motion for class certification. (Dkt..) The Court concluded that Plaintiffs failed to show that they could prove causation and injury on a classwide basis, because the same obstacles to proving these elements of Plaintiffs claims were present regardless of the amounts that Plaintiffs sought in damages. (Id. at -.) Plaintiffs did not petition the Ninth Circuit for interlocutory review of the second class-certification denial. Instead, they moved to dismiss their individual claims with prejudice in an attempt to manufacture an appealable final judgment. Plaintiffs made clear that the purpose of their motion was to expedite appellate review of the district court s interlocutory orders without requiring Plaintiffs to submit to discovery or to litigate their claims to a judgment on the merits. (Dkt., at ( Plaintiffs request that the Court grant their motion to dismiss with prejudice so that it is an appealable final decision that can be reviewed by the Ninth Circuit. ).) Lilly opposed Plaintiffs motion to dismiss, arguing that their attempt to use the voluntary-dismissal tactic to manufacture appellate jurisdiction was improper. (Dkt., at.) As Lilly explained, [a] motion to dismiss with prejudice should bring a case to an end. But here, Plaintiffs move to dismiss with prejudice in order to attempt to keep their case alive. (Id.) Lilly made clear its position that the Ninth Circuit would lack appellate jurisdiction, while acknowledging that this issue was for the Ninth Circuit to No. :-cv-0-svw

12 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: decide. (Id. at n. ( Lilly does not agree with Plaintiffs assertion that the Ninth Circuit would have appellate jurisdiction here, [but] that issue is not before this Court. ).) In their reply, Plaintiffs acknowledged that Lilly intended to challenge the Ninth Circuit s jurisdiction if they used the voluntary-dismissal tactic. (Dkt., at.) In deciding to continue with their request for dismissal with prejudice, Plaintiffs also made clear that they understood the risk that using this tactic posed: If the Ninth Circuit held that it lacked jurisdiction, this case would be over. (Id.) Plaintiffs explained: [T]he court of appeals must consider sua sponte whether an order is final and appealable under U.S.C.. If the Ninth Circuit does not consider the voluntary dismissal of Plaintiffs claims with prejudice to be a final, appealable judgment, it will dismiss the appeal and the case will be over. (Id. (citation omitted, emphasis added).) Plaintiffs also relied on the Ninth Circuit s decision in Microsoft in their reply. (Id. at.) But twelve days before Plaintiffs filed that reply, Microsoft had filed its petition for certiorari, which pointed out that the Ninth Circuit was in a - minority among the circuits in allowing plaintiffs who had lost a class certification motion to manufacture appellate jurisdiction through a voluntary dismissal with prejudice. See Petition for Writ of Certiorari, Microsoft, S. Ct. 0 (No. -), WL (Oct., ). On October,, this Court granted Plaintiffs motion to dismiss their claims with prejudice. (Dkt..) B. Ninth Circuit Proceedings In January before Plaintiffs filed their opening appellate brief the Supreme Court granted certiorari in Microsoft to decide the question whether a court of appeals has jurisdiction to review an order denying class certification, where the named plaintiffs voluntarily dismissed their individual claims with prejudice. (Misc. Orders List (S. Ct. Jan., ).) In February, Lilly moved to stay appellate proceedings ending the decision in Microsoft. (th Cir. Dkt..) The Ninth Circuit denied the motion, No. :-cv-0-svw

13 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: but stated that Lilly may request leave of court to file a supplemental brief after a decision in Microsoft. (th Cir. Dkt..) Plaintiffs filed their opening brief in July. (th Cir. Dkt..) In appealing the dismissal of their requests for injunctive relief, Plaintiffs did not challenge this Court s holding that Plaintiffs failed to allege that they intend to purchase Cymbalta in the future. (Dkt., at.) Instead, Plaintiffs argued that this Court abused its discretion by not allowing them to amend the complaint to add a plaintiff who has standing. (th Cir. Dkt., at -.) Lilly filed its answering brief in August. (th Cir. Dkt..) Lilly argued that Plaintiffs appeal should be dismissed for lack of jurisdiction for two reasons. (Id. at.) First, Lilly argued that [b]ecause [Plaintiffs ] individual claims have been irrevocably forfeited, Plaintiffs have no personal stake in this case sufficient to satisfy Article III. (Id.) Second, Lilly argued that, if Plaintiffs contend that they may revive their claims if [the Ninth Circuit] vacates or reverses the District Court s class certification decisions, their claims were not truly dismissed with prejudice and the judgment was not sufficiently final to permit an appeal as of right under U.S.C.. (Id.) Lilly also defended this Court s dismissal of Plaintiffs requests for injunctive relief. Lilly noted that Plaintiffs failed to challenge this Court s application of the well-settled rule that plaintiffs lack standing to seek injunctive or declaratory relief if they cannot demonstrate a real or immediate threat that they will be wronged again. (Id. at (quoting City of Los Angeles v. Lyons, U.S., ().) In their reply brief, Plaintiffs failed again to dispute this Court s finding that they did not intend to purchase Cymbalta in the future. (th Cir. Dkt., at -.) Indeed, their reply brief presented virtually no argument on why this Court s standing analysis was incorrect, and instead focused on their argument that they should have been given leave to amend their complaint to address the Court s standing concerns. (Id.) On January,, the Ninth Circuit informed the parties that it was considering the case for oral argument in May. (th Cir. Dkt..) Upon receiving this notice, Lilly No. :-cv-0-svw

14 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: moved to stay oral argument pending the Supreme Court s decision in Microsoft. (th Cir. Dkt..) On February,, the Court granted the motion to stay and instructed Lilly to file a status report and a motion for appropriate relief within days after the Supreme Court decides Microsoft. (th Cir. Dkt. 0.) On June,, the Supreme Court issued its decision in Microsoft, holding that a federal court of appeals lacks jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice. See S. Ct. at 0. Emphasizing that federal courts of appeals are empowered to review only final decisions of the district courts, the Supreme Court concluded that the plaintiff s voluntary-dismissal tactic did not create a final appealable order. Id. The Court explained that voluntary dismissal of claims does not qualify as a final decision within the compass of [ U.S.C.], because such tactic would undermine s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule (f) put in place for immediate review of class-action orders. Id. The concurring opinion in Microsoft provided a second basis for rejecting the voluntary-dismissal tactic: even if the voluntary dismissal led to a final judgment, the court of appeals lacked jurisdiction under Article III of the Constitution. Id. at (Thomas, J. concurring). Article III requires that an actual controversy be extant at all stages of review, not merely at the time the complaint is filed, and because plaintiffs dismissed their claims and consented to the judgment against them, there was no longer a case or controversy. Id. Indeed, the court of appeals lacked jurisdiction because [w]hen the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and disavowed any right to relief from Microsoft. The parties thus were no longer adverse to each other on any claims, and the Court of Appeals could The Microsoft majority did not disagree with this analysis. It did not reach the constitutional question because it held that there was no statutory basis for appellate jurisdiction. Microsoft, S. Ct. at. No. :-cv-0-svw

15 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: not affect their rights in any legally cognizable manner. Id. at (internal quotations omitted). On June,, Lilly moved to dismiss Plaintiffs appeal for lack of jurisdiction under Microsoft. (th Cir. Dkt..) In opposing the motion, Plaintiffs conceded that Microsoft required dismissal of their appeal of the class-certification orders, but they argued that the Ninth Circuit had jurisdiction over their claims for injunctive and declaratory relief. (th Cir. Dkt., at.) In reply, Lilly pointed out that requests for injunctive and declaratory relief are not separate claims; they are forms of relief that Plaintiffs sought for their consumer-protection claims, which were all dismissed with prejudice. (th Cir. Dkt., at ). On October,, the Ninth Circuit dismissed Plaintiffs appeal in its entirety. (th Cir. Dkt..) Citing Microsoft, the Ninth Circuit explained: A review of the record indicates that appellants voluntarily dismissed all of their claims with prejudice after the district court denied class certification. This court therefore lacks jurisdiction over this appeal. (Id. at.) On November,, the Ninth Circuit issued the mandate. (th Cir. Dkt..) ARGUMENT A motion to reopen a case under Rule 0(b)() should be granted sparingly and only in extraordinary circumstances. Latshaw v. Trainer Wortham & Co., F.d, 0 (th Cir. 0); see also Gonzalez v. Crosby, U.S., (0) (Rule 0(b)() motion is only available in extraordinary circumstances ). A change in the law is rarely sufficient to justify Rule 0(b) relief. See Satterfield v. District Attorney Philadelphia, F.d, 0 (rd Cir. ). Although the Ninth Circuit has identified numerous factors for courts to consider in determining whether a change in law warrants Rule 0(b)() relief, those factors are not exhaustive and may not apply in all cases. Phelps v. Alameida, F.d, (th Cir. 0). The ultimate touchstone is whether the movant has demonstrated the such extraordinary circumstances, id., that denying relief would work a manifest injustice. Latshaw, No. :-cv-0-svw

16 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:00 F.d at 0 (internal quotation omitted). Plaintiffs have fallen far short of making that showing. I. The Supreme Court s Decision in Microsoft Does Not Warrant Reopening This Case. A. Plaintiffs Cannot Use Rule 0(B) To Avoid The Foreseeable Consequences Of Their Strategic Decision To Dismiss Their Claims With Prejudice. Rule 0(b) provides relief from judgment only in extraordinary circumstances. Because Plaintiffs deliberately chose to voluntarily dismiss their claims when they knew Lilly would challenge the Ninth Circuit s jurisdiction, they freely accepted the risk that their appeal might be dismissed and this case over. It is too late for Plaintiffs to change their strategy.. The law is clear that a plaintiff s desire to avoid the negative consequences of his strategic choices does not constitute the type of extraordinary circumstances that warrant relief under Rule 0(b)(). In Ackermann, the Supreme Court affirmed the denial of a Rule 0(b) motion, explaining that [t]here must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from. 0 U.S. at. As the Supreme Court explained, the plaintiff s choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision... was probably wrong. Id. The Supreme Court reiterated this view in Gonzalez, U.S. at, where it stated that a free and voluntary litigation decision, although mistaken in hindsight, did not justify Rule 0(b) relief. Id. at (citing Ackerman, 0 U.S. at ). Courts, including the Ninth Circuit and this Court, routinely apply Ackerman to deny Rule 0(b)() relief where a litigant seeks to avoid the consequences of a strategic No. :-cv-0-svw

17 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 choice that he later regrets. Plaintiffs clearly made a free, calculated, deliberate choice in deciding to dismiss their claims with prejudice. Lilly opposed Plaintiffs motion to dismiss because it objected to their plan to use the voluntary-dismissal tactic to manufacture appellate jurisdiction. Lilly made clear that it viewed the tactic as improper and that it would argue on appeal that the Ninth Circuit lacked jurisdiction. In their reply brief, Plaintiffs fully acknowledged that the Ninth Circuit would need to decide whether it had jurisdiction and that a ruling for Lilly on that issue would end the case: [T]he court of appeals must consider sua sponte whether an order is final and appealable under U.S.C.. If the Ninth Circuit does not consider the voluntary dismissal of Plaintiffs claims with prejudice to be a final, appealable judgment, it will dismiss the appeal and the case will be over. Reply at (citation omitted) (emphasis added). Plaintiffs made their strategic choice based on then-existing Ninth Circuit precedent, but they knew (or should have known) that their choice carried risk because other circuits disagreed with the Ninth Circuit on this issue. Nearly two weeks before Plaintiffs submitted their reply brief in support of their motion to dismiss, Microsoft filed See, e.g., Mackey v. Hoffman, F.d, (th Cir. ) (Rule 0(b) does not provide relief for a free, calculated, deliberate choice (quoting Ackerman, 0 U.S. at ); Plotkin v. Pacific Tel. & Tel. Co., F.d, (th Cir. ) ( calculated, deliberate choices are not to be relieved from under Fed. R. Civ. P. 0(b) ); Wolff v. California, F. Supp. d, (C.D. Cal. ) (a plaintiff cannot be relieved of the consequences of a considered choice even when hindsight seems to indicate to him that his decision was probably wrong ); Paul Revere Variable Annuity Ins. Co. v. Zang, F.d, (st Cir. 0) ( the discretionary power granted by Rule 0(b)() is not for the purpose of relieving a party from such free, calculated, and deliberate choices made as part of a strategy of litigation ); Kramer, F.d at ( Rule 0(b)() should be only sparingly used and may not be employed simply to rescue a litigant from strategic choices that later turn out to be improvident. ) (quotation marks and citations omitted)); U.S. ex. rel. Technica, LLC v. Carolina Cas. Ins. Co., WL, at * (S.D. Cal. Apr., ) ( There is usually no basis for relief under Federal Rule of Civil Procedure 0(b)() when adverse consequences are the result of a party s free, calculated, and deliberate trial strategy. (internal citation omitted)). No. :-cv-0-svw

18 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 a petition for a writ of certiorari seeking Supreme Court review of the voluntarydismissal tactic. See Petition for Writ of Certiorari, Microsoft, S. Ct. 0 (No. - ), WL (Oct., ). As Microsoft s petition discussed, the circuits were split on whether a plaintiff could create appellate jurisdiction for review of a classcertification denial by voluntarily dismissing his claims with prejudice, and the Ninth Circuit was in a distinct - minority on this issue. Id. at **-. Unlike the Ninth Circuit, most courts of appeals had rejected the tactic and held that a voluntary dismissal with prejudice did not create appellate jurisdiction. Plaintiffs therefore were or should have been on notice that their reliance on the voluntary dismissal tactic was in jeopardy. Plaintiffs may have expected that the Supreme Court would deny review or would affirm the Ninth Circuit s decision in Microsoft, but they surely understood that they were taking a risk that the Supreme Court would side with the majority of circuits and put an end to the voluntary-dismissal tactic. And, as discussed above, Plaintiffs understood what an adverse Supreme Court decision would mean: This case would be over.. Plaintiffs only response is to argue that not all of their claims were dismissed as a result of their trial strategy. Mot.. According to Plaintiffs, this Court dismissed their claims for declaratory and injunctive relief. Id. That argument is foreclosed by law of the case and is incorrect in any event. After the Supreme Court decided Microsoft, Plaintiffs urged the Ninth Circuit to retain jurisdiction over their claims for declaratory and injunctive relief because, in Plaintiffs view, Microsoft only precluded review of class-certification denials. (th Cir. See, e.g., Camesi v. Univ. of Pittsburgh Med. Ctr., F.d, - (d Cir. ) (holding that, where plaintiffs voluntarily dismiss[ed] all of their claims to manufacture finality, such a procedural sleight-of-hand does not create appellate jurisdiction); Rhodes v. E.I. DuPont de Nemours & Co., F.d, 0 (th Cir.) () (holding that when a putative class plaintiff voluntarily dismisses the individual claims underlying a request for class certification, a court of appeals lacks jurisdiction to review the class-certification denial); Chavez v. Illinois State Police, F.d, (th Cir. 0) (holding that the court will... not review the district court s refusal to certify a class when the plaintiffs requested and were granted a voluntary dismissal of their [] claims ). No. :-cv-0-svw

19 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 Dkt., at.) Plaintiffs argued that they did not voluntarily dismiss their claims for declaratory and injunctive relief, and thus the Ninth Circuit had jurisdiction over those claims. (Id.) In response, Lilly argued that requests for declaratory and injunctive relief are not separate claims ; they are additional remedies for the consumer-protection claims, all of which were voluntarily dismissed. (th Cir. Dkt., at.) The Ninth Circuit agreed with Lilly and dismissed Plaintiffs appeal in its entirety. The court of appeals expressly held that appellants voluntarily dismissed all of their claims with prejudice after the district court denied class certification. (th Cir. Dkt., at (emphasis added).) That holding precludes Plaintiffs from continuing to argue that they voluntarily dismissed only some of their claims. See United States v. Alexander, F.d, (th Cir. ) ( Under the law of the case doctrine, a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case. (quotation marks and citation omitted)). Even if the issue were not controlled by law of the case, this Court should reach the same result. Plaintiffs complaint makes clear that they did not attempt to assert separate claims for injunctive and declaratory relief. Plaintiffs asserted claims under the consumer protection statutes of California, New York, Massachusetts, and Missouri. (Dkt.,,,.) Based on these claims, Plaintiffs sought declaratory relief, injunctive relief, and monetary damages. (Id.) Indeed, in pleading the putative classes for seeking declaratory and injunctive relief under Rule (b)(), Plaintiffs expressly stated that the classes would show that they were entitled to injunctive and declarative relief by proving a violation of the California, New York, Massachusetts, and Missouri consumer protection statutes. (Id. -.) To accept Plaintiffs theory that that they brought separate claims for injunctive and declarative relief, this Court would have to hold that each request for a different remedy gives rise to a distinct claim. Plaintiffs cite no authority to support this view, and the Supreme Court has expressly rejected it. Liberty Mutual Ins. Co. v. Wetzel, U.S. No. :-cv-0-svw

20 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0, n. () ( [A] complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief. ). In short, when Plaintiffs used the voluntary-dismissal tactic in an attempt to manufacture an appealable order, they knew (i) that Lilly would challenge the Ninth Circuit s jurisdiction, (ii) the Supreme Court was considering whether to resolve the circuit split on the issue, (iii) their case would be over if the Ninth Circuit lacked jurisdiction. Plaintiffs must bear the consequences of their strategic choice. Rule 0(b) will not treat Plaintiffs desire to change strategy after the fact as the sort of extraordinary circumstances warranting relief. B. The Supreme Court s Resolution of a Circuit Split in Microsoft Does Not Constitute An Extraordinary Change In The Law. Plaintiffs seek to reopen this case because Microsoft changed the law of the Ninth Circuit. Mot. -. But not every change in law warrants reopening a case. To the contrary, a change in the law is rarely sufficient to justify Rule 0(b) relief, Satterfield v. District Attorney Philadelphia, F.d, 0 (rd Cir. ), and something more than a mere change in the law is necessary. Phelps v. Alameida, F.d, (th Cir. 0) (quoting Ritter v. Smith, F.d, (th Cir. )). To determine whether to grant Rule 0(b) relief based on a change in law, courts consider the nature of the intervening change in the law. Lopez v. Ryan, F.d, (th Cir. ). When, as here, the nature of the change is the resolution of a circuit split, the change in law is not sufficiently extraordinary to warrant relief under Rule 0(b)(). The Supreme Court routinely resolves circuit splits, and every time that it does, there is change in the law in those circuits on the wrong side of split. The Supreme Court has made clear that, when this happens, the change in law is not sufficiently extraordinary to support Rule 0(b) relief. See Gonzalez, U.S. at - (change in law resulting from the Supreme Court resolving a circuit split is hardly extraordinary ). The Ninth Circuit and other courts of appeals have similarly concluded that the Supreme Court s resolution of a circuit split does not constitute an extraordinary change in the law. See No. :-cv-0-svw

21 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 Lopez v. Ryan, F.d, (th Cir. ) (citing Gonzalez, U.S. at ); United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., F.d, (th Cir. 0); DeWeerth v. Baldinger, F.d, (d Cir. ). This factor weighs against granting relief because there was nothing extraordinary about the Supreme Court s decision in Microsoft. As discussed above, the circuits were split on whether a putative class action plaintiff could create appellate jurisdiction by voluntarily dismissing her claims with prejudice, and the Ninth Circuit was in the clear minority by allowing plaintiffs to use this voluntary-dismissal tactic. And although the justices split on the reasoning for why the tactic cannot create appellate jurisdiction, every justice concluded that appellate jurisdiction did not exist. Microsoft, S. Ct. at,. Plaintiffs attempt to argue otherwise by relying on Connelly, but that decision is readily distinguishable and also is contrary to their position on this factor. There, the parties filed a joint motion to dismiss, and the defendant expressly agree[d] that there is appellate jurisdiction to appeal the denial of class certification. Connelly, Mot. to Dismiss at (ECF No. ) (Mar., ). The defendant further agreed to continue litigating this action from the same procedural stand point and factual record in place at the time of the appeal, if the Ninth Circuit reversed the district court s decision. Id. at. Moreover, in Connelly, the district court ruled that Microsoft s resolution of a circuit split was not so extraordinary a change in the law as to merit Rule 0(b) relief. Accordingly, this factor favors denial of Plaintiffs motion. The Connelly court stated that this factor only slightly favored denying the motion because little time had elapsed since the change in law and the Rule 0 motion. Connelly, WL, at *. This Court should not follow this portion of the Connelly court s analysis because it conflates the nature of the change in law with the separate diligence and delay factors. No. :-cv-0-svw

22 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 C. Plaintiffs Were Not Diligent In Seeking To Reopen The Case. Plaintiffs are also not entitled to relief under Rule 0(b)() because they have not shown that they were diligent in seeking to reopen the case after the Supreme Court s decision in Microsoft. Plaintiffs did not need to wait until the Ninth Circuit dismissed their appeal; they could have filed a Rule 0(b) motion in this Court immediately after the Supreme Court s decision on June,. See Williams v. Woodford, F.d, (th Cir. 0) ( To seek Rule 0(b) relief during the pendency of an appeal, the proper procedure is to ask the district court whether it wishes to entertain the motion, or to grant it, and then move this court, if appropriate, for remand of the case. (quotation marks and citations omitted)). Rather than doing so, Plaintiffs waited more than seven months to file their Rule 0(b) motion the last three-and-a-half months of delay coming after the Ninth Circuit dismissed the appeal on October,. Plaintiffs contend that [t]here is no indication of a lack of diligence by Plaintiffs. Mot.. But the months of inactivity is itself an indication of a lack of diligence. Plaintiffs bear[] the burden of showing timeliness, Moses v. Joyner, F.d, (th Cir. ), and they have offered no reason why it took them so long to file the motion. In Connelly, the plaintiffs filed their Rule 0(b) motion only six days after the Ninth Circuit s decision.... WL, at *. Plaintiffs do not explain why they could not file just as quickly, much less why they waited more than seven months after the Supreme Court decided Microsoft and more than three months after their appeal was dismissed to file their motion. Particularly given their prior statements that the case would be over if the appeal were dismissed, this lack of diligence in seeking to reopen the case weighs against Plaintiffs. Plaintiffs note that, in Jones, the Ninth Circuit concluded that a -month delay between the intervening change in law and the Rule 0(b) motion was entitled to little weight in either direction. F.d at. But Plaintiffs ignore the Ninth Circuit s explanation for why it reached this conclusion. The court of appeals did not simply consider the length of time, but rather it determined the plaintiff s diligence by No. :-cv-0-svw

23 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 considering his explanation for the delay. Id. Given the proffered explanation that the delay was attributable to [plaintiff s] prior, allegedly conflicted counsel, the Ninth Circuit gave this factor no weight. In contrast, when, as here, the plaintiff offers no explanation for his delay, the Ninth Circuit has held that a delay of six months was sufficient to make a Rule 0(b) motion untimely. See Rhodes v. Raytheon Co., F. App'x, (th Cir. ) (affirming dismissal of Rule 0(b) motion where plaintiff offer[red] no explanation for six-month delay). In short, Plaintiffs offer no reason why the Connelly plaintiffs could file their motion in less than a week, and yet it took them more than seven months after the Microsoft decision to file a similar motion. This factor weighs against Plaintiffs. D. Reopening The Case Would Upset Lilly s Reliance Interest In The Finality Of The Case. Courts also consider whether reopening the case would upset the parties reliance interest in the finality of the case. This factor strongly favors Lilly and denial of Plaintiffs motion. Lilly has a strong reliance interest in the finality of the case. Lilly consistently maintained that a dismissal with prejudice ends the case and no appeal could be taken. Lilly s reliance interest is reasonable given the general rule that dismissals with prejudice end a case. See, e.g., Dannenberg v. Software Toolworks, Inc., F.d, - (th Cir. ) (voluntary dismissal with prejudice precludes the possibility of later pursuing the dismissed claims). Plaintiffs never disputed this general rule; they argued only that the rule did not apply when the voluntary dismissal with prejudice was sought for the purpose of seeking appellate review of a class certification order. And Plaintiffs even agreed that if they were wrong on this point, then the case would be over. Thus, from the time that this Court entered final judgment, the parties were in agreement that the judgment would remain final if the Ninth Circuit held that it lacked jurisdiction, which the court of appeals did. Given that Lilly has spent more than two years litigating this case with the understanding that the final judgment would remain final once the No. :-cv-0-svw

24 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 Ninth Circuit dismissed the appeal for lack of jurisdiction, Lilly has a strong reliance interest in holding Plaintiffs to their concession that the case should be over if appellate jurisdiction was lacking. Plaintiffs contend that there is no question that the dismissal with prejudice was never meant to end the litigation. Mot. at. Plaintiffs argue that Lilly conceded that the litigation would continue because, in its opposition to Plaintiffs motion to dismiss, Lilly made clear that it knew Plaintiffs intended to appeal the final judgment. Id. But Lilly s statements do not undermine its interests in finality. Lilly did not agree that Plaintiffs had a right to appeal. To the contrary, Lilly made clear that the anticipated appeal would be improper and it urged this Court to deny the motion to dismiss so that Plaintiffs could not seek an improper appeal. Lilly also made its position clear that, if the claims were dismissed with prejudice, the case should be over. Those statements demonstrate Lilly s reliance on the finality of a dismissal with prejudice, and its intent to oppose any attempt to continue litigating those dismissed claims. Lilly s actions are considerably different from the defendant s actions in Connelly, as discussed above. Even though the defendant in Connelly agreed that there was appellate jurisdiction, the Connelly court concluded that this factor was neutral because of the strong interest that a defendant generally has in the finality of a dismissal with prejudice. Connelly, WL, at *. If the factor was neutral in Connelly, then it clearly favors Lilly here, where Lilly consistently refused to accept Plaintiffs view that the voluntary-dismissal tactic was proper. E. The Delay Between The Final Judgment and the Rule 0(b) Motion Favors Denial of the Motion. Courts also consider the length of time between when the final judgment was entered and when the Rule 0(b) motion is filed. Phelps, F.d at. Even when there has been an intervening change in law, this factor is important because a change in the law should not indefinitely render preexisting judgments subject to potential No. :-cv-0-svw

25 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #:0 challenge. Id. The analysis of this factor largely tracks the analysis of plaintiffs diligence and, like that factor, favors defendant in this case. Plaintiffs acknowledge that the relevant time period is the period between final judgment in this Court (October, ) and when they filed their Rule 0(b) motion (January, ). Mot.. Plaintiffs attempt to downplay this lengthy passage of time by noting that the appeal was stayed over Plaintiffs objection. Id. But the Ninth Circuit denied Lilly s initial motion to stay the appeal, and the parties proceeded to full briefing. To be sure, the Ninth Circuit ultimately agreed to stay oral argument, but absent a stay, the Ninth Circuit would have heard oral argument in this case no earlier than May. Given that Microsoft was decided on June,, this short stay did not delay the ultimate dismissal of the appeal. Lilly filed its motion to dismiss the appeal in June, just as it would have done if they appeal was argued in May. In any event, the short stay of oral argument pales in comparison to the unexplained seven month delay between Microsoft and the Rule 0(b) motion. This factor favors denying Plaintiffs motion. F. The Relationship Between Microsoft and This Court s Dismissal Does Not Justify Reopening The Case. Courts also consider the degree of connection between the two cases at issue in deciding whether to grant Rule 0(b)() relief. Lopez, F.d at. This factor is relevant because it demonstrates how much impact the change of law would have on the outcome of the final judgment. Id. The relevant date is the entry of the final judgment, even when the case is on appeal, because a plaintiff may seek Rule 0(b) relief in the district court even during the pendency of an appeal. See Williams, F.d at. In reaching a different result, the Connelly court conflated this factor with the diligence requirement, holding that this factor favored the plaintiff because he filed his Rule 0(b) motion just days after the Ninth Circuit dismissed his appeal. WL, at *. In any event, this reasoning does not help Plaintiffs because they were not similarly diligent. No. :-cv-0-svw

26 Case :-cv-0-svw-man Document Filed 0// Page of Page ID #: This case is connected to Microsoft in the sense that the plaintiffs in both cases unsuccessfully attempted to manufacture appellate jurisdiction by using the voluntarydismissal tactic. But that connection is not enough to justify Rule 0(b) relief in this case. This factor typically provides support for reopening a case where the validity of the judgment in that case is called into question by the change in law. That is not the case here. This Court dismissed Plaintiffs claims with prejudice because Plaintiffs requested that relief. Nothing in Microsoft undermines this Court s decision to allow Plaintiffs to dismiss their own claims. Moreover, Plaintiffs moved to dismiss their claims because they were dissatisfied with the Court s class-certification rulings. But Microsoft does not undermine those decisions. Plaintiffs do not seek to reopen their case on the ground that this Court s substantive rulings are incorrect under Microsoft. Instead, they seek to reopen their case because they would have changed their strategy had they accurately predicted how the Supreme Court would rule in Microsoft. As a result, even if this factor supports Plaintiffs, it does not outweigh the many factors favoring dismissal. G. Plaintiffs New-Found Desire To Litigate Their Individual Claims Does Not Warrant Reopening The Case. Finally, Plaintiffs contend that the comity factor applied in Phelps supports their motion because, absent relief, they will be barred from litigating their claims on the merits. Mot. -. In Phelps, a habeas proceeding, the Ninth Circuit addressed the comity concerns between a federal court sitting in review of a state court s criminal proceedings. F.d at -0. A comity analysis makes no sense in this context of this civil litigation, where no state-court judgment is subject to being second guessed. In any event, any Rule 0(b) interest in correcting erroneous legal judgments that would prevent the true merits of a petitioner s... claims from ever being heard does not support Plaintiffs. Id. at 0. Had Plaintiffs wanted to litigate their claims on the merits, they simply needed to continue litigating those claims. Plaintiffs did not obtain a ruling on the merits for only one reason: they voluntarily dismissed their claims to avoid No. :-cv-0-svw