Moreover, the Court can impute knowledge of all of the claims in the instant suit to Advisors through their attorney, as the same attorney represented those parties who were named as Defendants in the original Class Action Complaint. Case 1:09-cv-06935-JGK Document 187 Filed 08/29/11 Page 22 of 24 17 See Berry v. Village of Millbrook, No. 09-CV-4234 (KMK), 2010 WL 3932289, at *4 n.6 (S.D.N.Y. 2010) (see cases gathered therein). This element is clearly satisfied because, as shown above, Advisors knew of the facts, claims and parties to this action since the original Class Action Complaint was filed in August 2009. Based upon all the facts here, Plaintiffs respectfully submit that this Court should, in its discretion, permit relation back of the Complaints and the “control person” claim against Defendant Advisors under both Fed. R. Civ. P. 15(c)(1)(B) and Fed. R. Civ. P. 15(c)(1)(C). CONCLUSION For all of the foregoing reasons, this Court should grant leave to file the Third Amended Complaint in the form of the proposed Third Amended Consolidated Class Action Complaint submitted herewith.

James H. Freeman, Esq. JH FREEMAN LAW 3 Columbus Circle – 15 Fl. New York, New York 10019 Attorney for Plaintiffs and Third Party Jermaine Jones contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of … mere technicalities. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’”)

Requiring Defendants to respond to such immaterial allegations that total more than 131 pages is unduly burdensome and is exactly what Rule 12(f) seeks to prevent. Based on the foregoing, should Plaintiff’s Second Amended Complaint be held to be the operative complaint, it should be struck and Plaintiff should be required to file a complaint in accordance with Rule 8 that contains “a short and plain statement” of Plaintiff’s surviving Section 11 and 15 claims. CONCLUSION

In addition to 21 CRF 310.200 (Prescription-exemption procedure), the Agency's position on switch products and the associated switch process is made clear by correspondence with a Sponsor and/or as matter of general public record. This occurs via Citizens Petition, NDA action packages, the Advisory Committee process, presentations by CDER Management and staff at public meetings and Part 15 Public Hearings (e.g. June 28, 2000). There are many good examples of why active ingredients should be available both as prescription and OTC drugs.

. In addition to futility, “undue prejudice to the opposing party by virtue of allowance of [an] amendment” is a proper basis for the Court to deny leave to amend under Rule 15(a)(2).41 Courts consider prejudice to be one of “the most important factor[s]” and “the most frequent reason for” denying leave to amend.42

Fed.R.Civ.P. 15(a). However, leave to amend may be denied when ‘‘the court determines that the alle- gation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’’ Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000).

13 of her complaint to name Schindler as one of the unnamed “Corporations 1 - 5” does not relate back under Rule 15(c). IV. Plaintiff’s Cause of Action Accrued in October 2009 and Expired in October 2012.

Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.45 Page 8 of 9 8 16-cv-1259-JM (JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In sum, unless Plaintiff affirmatively demonstrates that she satisfied either the general or government notice provision in Rule 15(c), the FAC does not relate back to Plaintiff’s original Complaint and Plaintiff’s FTCA claims against the United States are time-barred. V. CONCLUSION

”); In re Crazy Eddie Sec. Litig., 747 F. Supp. 850, 856 (E.D.N.Y. 1990) (same). 5. Plaintiffs Cannot Rely on Relation Back to Circumvent the Statute of Limitations Plaintiffs also cannot salvage their untimely Complaint through the “relation back” doctrine under Rule 15 of the Federal Rules of Civil Procedure. As discussed above, Plaintiffs’ Complaint cannot relate back to: (i) OLERS and Laborers I because they were voluntarily dismissed, supra Argument Part II.A at 19; or (ii) Laborers I and II because Laborers did not purchase shares in or traceable to any of the four Offerings and therefore lacked standing to bring the Securities Act claims, supra id. at 19-20.

Federal courts favor joinder so that all parties’ claims arising out of the same set of facts and involving the same issues of law can be consolidated for efficiency and judicial economy. Fed. R. Civ. P. 15, 2009 Committee Notes (“A responsive amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim.”).