Harden Manufacturing Corporation v. Pfizer, Inc. et al

MOTION for Leave to File RESPONSE TO SUR-REPLY OF ASSURANT PLANTIFFS

D. Mass.October 13, 2006

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x In re: NEURONTIN MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: ASSURANT HEALTH, INC., et al. v. PFIZER INC., et al., Docket No. 05-10535-PBS : : : : : : : : : : : : MDL Docket No. 1629 Master File No. 04-10981 Judge Patti B. Saris Mag. Judge Leo T. Sorokin - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DEFENDANTS’ MOTION FOR LEAVE TO FILE RESPONSE TO SUR-REPLY OF ASSURANT PLAINTIFFS Defendants Pfizer Inc. and Warner-Lambert Company (“defendants”) respectfully move, pursuant to Local Rule 7.1(B)(3), for leave to file the attached, very short Response of Defendants Pfizer Inc. and Warner-Lambert Company to Sur-reply of Assurant Plaintiffs (the “Response”). The grounds for this motion are: 1. On September 27, 2006, the Court heard argument on defendants’ objections to the Memorandum and Order of Magistrate Judge Leo T. Sorokin, dated August 4, 2006 (the “Order”), which recommended that plaintiffs’ motion to remand be allowed. 2. During the argument, the Court expressed certain issues with respect to the Order. The Court also granted plaintiffs’ request for leave to file a post-hearing memorandum. 3. Plaintiffs filed their post-hearing, sur-reply memorandum (the “Post-hearing Memorandum”) on October 4, 2006. 4. The Post-hearing Memorandum, presumably in response to an issue raised by the Court during oral argument, raises an argument that plaintiffs had never raised before. Case 1:04-cv-10981-PBS Document 512 Filed 10/13/2006 Page 1 of 3 2 5. Defendants would like an opportunity to respond to Plaintiffs’ new argument, which is erroneous. 6. The Response addresses the new, erroneous argument as well as other errors in the Post-hearing Memorandum. 7. Defendants believe the Response will assist the Court in its consideration of defendants’ objections to the Order. WHEREFORE, defendants respectfully request leave to file the attached Response. Dated: October 13, 2006 DAVIS POLK & WARDWELL By: /s/ James P. Rouhandeh James P. Rouhandeh Carter H. Burwell 450 Lexington Avenue New York, New York 10017 (212) 450-4000 - and - HARE & CHAFFIN By: /s/ David B. Chaffin David B. Chaffin 160 Federal Street Boston, Massachusetts 02110 (617) 330-5000 Attorneys for Defendants Pfizer Inc. and Warner-Lambert Company Case 1:04-cv-10981-PBS Document 512 Filed 10/13/2006 Page 2 of 3 3 CERTIFICATE OF CONSULTATION I certify that I attempted to confer with plaintiffs’ counsel in advance of the filing of this motion but was unable to do so. I called lead counsel for plaintiffs. Her voicemail message indicated that she was unavailable. I spoke with co-counsel for plaintiffs. He indicated that the decision was not his and that he would attempt to reach lead counsel and get back to me. He has not called me back. /s/David B. Chaffin CERTIFICATE OF SERVICE I hereby certify that this document has been served pursuant to Case Management Order No. 3. /s/David B. Chaffin Case 1:04-cv-10981-PBS Document 512 Filed 10/13/2006 Page 3 of 3