Gutierrez v. Johnson & Johnson, 3:19-cv-01345

Background

Plaintiffs (Gutierrez and Luna) brought a putative class action alleging Johnson & Johnson Consumer Inc. and Bausch Health US sold talc-based Baby Powder and Shower-to-Shower products without warning of carcinogenic contaminants (e.g., asbestos) and engaged in deceptive marketing that represented the products as safe.
Case was filed in California Superior Court (May 20, 2019), removed to federal court (July 18, 2019), and underwent multiple amendments (up through a Fourth Amended Complaint after the Court granted dismissal of the Third Amended Complaint on April 27, 2020).
Plaintiffs filed a Fourth Amended Complaint, then moved for leave to file a Fifth Amended Complaint to add more particularized factual allegations (including advertising slogans and merchandising placements) to satisfy Rule 9(b) specificity requirements.
Defendants opposed the motion, arguing undue delay, lack of good cause under the scheduling order, prejudice from repeated amendments, and futility because the proposed pleading repeated defects previously dismissed.
The Court applied Rule 15(a) and the Foman factors (undue delay, bad faith/dilatory motive, prejudice, futility, repeated failure to cure) and concluded leave to amend should be granted, deferring detailed futility analysis to any future motion to dismiss.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Undue delay	Plaintiffs moved promptly after meeting and conferring and sought to add necessary specifics.	Repetitive amendments have delayed the case and left it at motion-to-dismiss stage.	No undue delay; granting leave won't change the procedural posture or impose unwarranted burdens.
Bad faith / Good-cause for schedule change	Request followed conferral and an agreed extension; meets good-cause standard.	Plaintiffs knew facts earlier and therefore lack good cause to amend schedule.	No evidence of bad faith; good cause satisfied given the joint extension and conferral.
Prejudice to defendants	Defendants agreed to additional time; no unfair surprise.	Another large amended pleading forces Defendants to analyze and re-litigate issues.	No undue prejudice; the burden is not sufficient to bar amendment.
Futility / Prior amendments	FiAC cures prior pleading deficiencies and adds specificity under Rule 9(b).	FiAC repeats the same defects and would be subject to dismissal under Rule 12(b)(6).	Court did not find futility established and deferred merits/futility to a future motion to dismiss despite multiple prior amendments.

Key Cases Cited

Foman v. Davis, 371 U.S. 178 (U.S. 1962) (sets Foman factors guiding leave to amend)
DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir. 1987) (liberality in permitting amendments)
In re Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716 (9th Cir. 2013) (application of Foman factors; scheduling-order good-cause discussion)
Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (U.S. 2015) (affirming Ninth Circuit guidance on amendments)
International Ass’n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386 (9th Cir. 1985) (trial court’s discretion on amendments)
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) (prejudice carries greatest weight among Foman factors)
Miller v. Rykoff-Sexton, Inc., 845 F.2d 209 (9th Cir. 1988) (futility test: whether any set of facts could support claim)
Nordyke v. King, 644 F.3d 776 (9th Cir. 2011) (proposed amendment futile if immediately subject to dismissal)
Gabrielson v. Montgomery Ward & Co., 785 F.2d 762 (9th Cir. 1986) (futility can justify denial of leave)
Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (futility doctrine discussion)
Griggs v. Pace Am. Grp., Inc., 170 F.3d 877 (9th Cir. 1999) (amendments permitted unless they merely prolong litigation)
Salameh v. Tarsadia Hotel, 726 F.3d 1124 (9th Cir. 2013) (district court’s broad discretion to deny leave after prior amendments)
Rich v. Shrader, 823 F.3d 1205 (9th Cir. 2016) (courts have wide discretion post-first amendment)
Jackson v. Bank of Hawaii, 902 F.2d 1385 (9th Cir. 1990) (leave to amend not automatic)
Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (standards for pleading sufficiency)