Amerisourcebergen Corporation v. Dialysist West, Inc.

AMENDED OPINION

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

On August 2, 2002, AmerisourceBergen Corporation 1 brought suit against Dialy-sist West, Inc. alleging that Dialysist West breached a sales agreement concerning the sale of the drug Epogen S40. Following its determination that 50% to 100% of the Epogen it purchased from Dialysist West was counterfeit, AmerisourceBergen withheld payments due Dialysist West on non-Epogen drug sales. On March 18, 2003, Dialysist West filed a counterclaim demanding that AmerisourceBergen pay the approximately $2.2 million it owed for the non-Epogen products Dialysist West had shipped to AmerisourceBergen. On the same day, Dialysist West also filed an Epogen-related, third-party complaint against pharmaceutical distributors Am-eRx Inc., CSG Distributors, and Optia Medical. On April 21, 2003, CSG Distributors filed a third-party complaint against Premier Medical Distributors Inc., and on July 14, 2003, AmeRx filed a third-party complaint against three more Epogen distributors.

On May 30, 2003, AmerisourceBergen filed a reply to Dialysist West’s counterclaim conceding that it had not paid for the non-Epogen products (including Procrit) and…

dissenting.

While I agree with most of the majority’s disposition of the issues raised by this appeal, I part company on two issues. I believe that the district court abused its discretion in denying AmerisourceBergen’s motion for leave to amend because the motion was made well before the deadline set by the court for the making of such motions and because Dialysist West has shown absolutely no prejudice. I further believe that the district court abused its *957 discretion in refusing to stay the judgment pursuant to Federal Rule of Civil Procedure 62(h) because it failed to perform an analysis separate from its Rule 54(b) analysis and failed to give adequate consideration to Dialysist West’s insolvency. For these reasons, I respectfully dissent from Parts III.B. and III.D. of the majority opinion, and from the judgment of affir-mance.

1. Leave to Amend.

Federal Rule of Civil Procedure 15 provides that “leave to amend shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Absent prejudice, or a “strong showing” of the other factors, such as undue delay, bad faith, or dilatory motive, “there exists a presumption under Rule 15(a) in favor of granting leave to…

I. FACTUAL AND PROCEDURAL HISTORY

On August 2, 2002, AmerisourceBergen Corporation1 brought suit against Dialysist West, Inc. alleging that Dialy- sist West breached a sales agreement concerning the sale of the drug Epogen S40. Following its determination that 50% to 100% of the Epogen it purchased from Dialysist West was counterfeit, AmerisourceBergen withheld payments due Dia- lysist West on non-Epogen drug sales. On March 18, 2003, Dialysist West filed a counterclaim demanding that Ameri- sourceBergen pay the approximately $2.2 million it owed for the non-Epogen products Dialysist West had shipped to AmerisourceBergen. On the same day, Dialysist West also filed an Epogen-related, third-party complaint against phar- maceutical distributors AmeRx Inc., CSG Distributors, and Optia Medical. On April 21, 2003, CSG Distributors filed a third-party complaint against Premier Medical Distributors Inc., and on July 14, 2003, AmeRx filed a third-party com- plaint against three more Epogen distributors. 1 AmerisourceBergen Corp. succeeded Bergen Brunswig Corporation as the plaintiff-appellant in this case. AMERISOURCEBERGEN v. DIALYSIST WEST 17317 On May 30, 2003,…