O'Brien et al v. New England Compounding Pharmacy, Inc. et al

MOTION for Extension of Time to File Responsive Pleadings

M.D. Tenn.January 18, 2013

N BTM 940216 v1 2924962-000013 01/18/2013 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION DENNIS O'BRIEN and wife, KAYE O'BRIEN, Plaintiffs, v. NEW ENGLAND COMPOUNDING PHARMACY, INC. d/b/a NEW ENGLAND COMPOUNDING CENTER ("NECC"); MEDICAL SALES MANAGEMENT, INC.; AMERIDOSE, LLC; GREGORY CONIGLIARO, individually and d/b/a the above named business organizations; BARRY CADDEN, individually and d/b/a the above named business organizations; LISA CONIGLIARO CADDEN, individually and d/b/a the above named business organizations; CARLA CONIGLIARO, individually and d/b/a the above named business organizations; DOUGLAS CONIGLIARO, individually and d/b/a the above named business organizations, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO: 2:12cv0117 JUDGE SHARP MOTION FOR ENLARGEMENT OF TIME IN WHICH TO FILE RESPONSIVE PLEADINGS Defendants Medical Sales Management, Inc.; Gregory Conigliaro; Barry Cadden; Lisa Conigliaro Cadden; Carla Conigliaro; and Douglas Conigliaro (“Defendants”), pursuant to Fed. R. Civ. P. 6(b)(1)(A), move this Court for an enlargement of time until February 18, 2013 in which to file responsive pleadings to the Complaint. As grounds for this motion, Defendants point out that Defendant New England Compounding Pharmacy, Inc. d/b/a New England Compounding Center (“NECC”) recently filed a voluntary petition under Chapter 11 of Title 11 Case 2:12-cv-00117 Document 14 Filed 01/18/13 Page 1 of 4 PageID #: 88 2 N BTM 940216 v1 2924962-000013 01/18/2013 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Massachusetts (Eastern Division), No. 12-19882-HJB. Pursuant to 11 U.S.C. §362(a), all actions against NECC are stayed. Furthermore, on January 31, 2013, the United States Judicial Panel on Multidistrict Litigation will hear argument regarding the establishment of multidistrict litigation (“MDL”) for all federal cases involving allegations related to the fungal meningitis outbreak, and this and other cases likely will be transferred to the MDL for pretrial proceedings. Additionally, Defendants have been named in numerous lawsuits in many jurisdictions and seek additional time to coordinate the drafting and filing of responsive pleadings in those jurisdictions. Counsel for Defendants has attempted to contact Plaintiffs’ counsel by telephone and e- mail several times to determine whether Plaintiffs would agree to the extension but has been unsuccessful in communicating with him. By filing this motion, Defendants do not intend to waive, and specifically reserve, all applicable defenses, including those to as jurisdiction. Based on the foregoing, Defendants respectfully request that this Court allow them until February 18, 2013 to file responsive pleadings to the Complaint. Should this Court deny this Motion for Enlargement of Time, Defendants respectfully request that this Court issue an Order allowing Defendants five business days from the receipt of the Court's Order to file responsive pleadings. Case 2:12-cv-00117 Document 14 Filed 01/18/13 Page 2 of 4 PageID #: 89 3 N BTM 940216 v1 2924962-000013 01/18/2013 Date: January 18, 2013. Respectfully submitted, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC By: s/ Carrie W. McCutcheon Brigid M. Carpenter (BPR #18134) Carrie W. McCutcheon (BPR #24805) Baker Donelson Center, Suite 800 211 Commerce Street Nashville, TN 37201 (615) 726-7341 (615) 744-7341 (facsimile) bcarpenter@bakerdonelson.com cmccutcheon@bakerdonelson.com Emily T. Landry (BPR #22157) Quinn N. Carlson (BPR #25603) First Tennessee Building, 20th Floor 165 Madison Avenue Memphis, TN 38103 (901) 526-2000 (901) 577-2303 (facsimile) elandry@bakerdonelson.com qcarlson@bakerdonelson.com Attorneys for Defendants Barry J. Cadden, Gregory A. Conigliaro, Douglas A. Conigliaro, Lisa Conigliaro Cadden, Carla Conigliaro, and Medical Sales Management, Inc. Case 2:12-cv-00117 Document 14 Filed 01/18/13 Page 3 of 4 PageID #: 90 4 N BTM 940216 v1 2924962-000013 01/18/2013 CERTIFICATE OF SERVICE The undersigned hereby certifies that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). Mike Walker, Esq. 5511 Edmondson Pike, Suite 203 Nashville, TN 37211 Attorney for Plaintiffs Jim A. Beakes, Esq. Butler, Snow, O'Mara, Stevens & Cannada, PLLC 1200 One Nashville Place 150 Fourth Avenue, North Nashville, TN 37219-3422 this 18th day of January, 2013. s/ Carrie W. McCutcheon Carrie W. McCutcheon Case 2:12-cv-00117 Document 14 Filed 01/18/13 Page 4 of 4 PageID #: 91