CHATOM PRIMARY CARE, P.C. v. MERCK & CO., INC., 2:12-cv-03555

This is a consolidated antitrust/consumer-protection putative class action by direct purchasers against Merck alleging monopolization of the mumps vaccine market; original complaint filed June 25, 2012 and a consolidated amended complaint filed September 20, 2012.
Extensive discovery occurred: Merck produced ~144,000 documents (over 2 million pages) from dozens of custodians and plaintiffs took numerous depositions; fact discovery closed June 1, 2017 after multiple extensions.
In August 2017 plaintiffs moved for leave to file a Second Consolidated Amended Complaint to add an attempted monopolization claim under Section 2 of the Sherman Act, asserting new evidence unearthed in discovery supported intent and dangerous probability of monopolization.
Merck opposed, arguing plaintiffs unduly delayed (many key documents were produced in 2015) and that adding a new claim after fact discovery would prejudice Merck by foreclosing discovery on new elements (intent, dangerous probability).
The magistrate judge denied leave to amend on October 30, 2017 based on undue delay and prejudice; Judge Jones remanded for further analysis limited to prejudice and undue delay, leading to this memorandum affirming those grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Undue delay in seeking leave to amend	New evidence was uncovered in discovery justifying late amendment; a "holistic" review produced the theory	Key documents were produced in 2015; plaintiffs waited ~2 years to move to amend after obtaining them	Denied: two-year lag after receiving documents constitutes undue delay and is unjustified
Prejudice from permitting amendment after close of fact discovery	Merck already holds much of the evidence of intent; any additional discovery should be manageable	Adding a new claim now would require substantial additional discovery, depositions, re-depositions, and review of voluminous productions, unfairly prejudicing Merck	Denied: permitting amendment would substantially prejudice Merck because fact discovery is closed
Proposed remedy of reopening discovery	Plaintiffs offered to allow "relevant and reasonable" additional discovery if amendment allowed	Reopening would further prolong case, impose substantial additional costs, and likely require re-depositions and renewed review of massive productions	Rejected as insufficient to cure prejudice given case maturity and multiple prior extensions
Futility of amendment	(Plaintiffs urged amendment to assert attempted monopolization)	Merck argued amendment would be futile for failure to plead specific intent; court did not resolve futility on remand	Not decided on remand; denial rests on undue delay and prejudice rather than futility

Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267 (3d Cir. 2001) (lists factors permitting denial of leave to amend, including undue delay and prejudice)
Foman v. Davis, 371 U.S. 178 (U.S. 1962) (familiar Rule 15 standards for leave to amend)
Adams v. Gould Inc., 739 F.2d 858 (3d Cir. 1984) (delay may become undue or prejudicial and justify denial)
Berger v. Edgewater Steel Co., 911 F.2d 911 (3d Cir. 1990) (short delays after acquiring information can establish undue delay)
Mylan Pharmaceuticals, Inc. v. Warner Chilcott Public Ltd. Co., 838 F.3d 421 (3d Cir. 2016) (explains elements of attempted monopolization)
Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (U.S. 1993) (sets elements for attempted monopolization)
Luciani v. City of Philadelphia, [citation="643 F. App'x 109"] (3d Cir. 2016) (prejudice to non-moving party is central to denial of amendment)