Apotex Inc. v. Schering Corporation et al.

[Indexed as: Apotex Inc. v. Schering Corp.]

Ontario Reports Court of Appeal for Ontario

Strathy C.J.O., Nordheimer J.A., McKinnon J. (ad hoc)

November 8, 2018

143 O.R. (3d) 321 | 2018 ONCA 890

Case Summary

Judgments and orders — Issue estoppel — Motion judge dismissing defendants' motion to amend statement of defence to plead that Federal Court decision declaring defendants' drug patent to be invalid was based on legal principle which had since been struck down by Supreme Court of Canada — Motion judge finding that there had been no change in law which could justify exercising discretion not to apply issue estoppel — Defendants' appeal allowed — Motion judge erring in equating "change in law" with change in statutory provisions — Strict application of issue estoppel working injustice to defendants as Federal Court invalidity decision was central to plaintiff's claim — Proposed amendment also not barred by doctrine of collateral attack.

The plaintiff wished to market the generic version of a drug for which the defendants held the patent. One of the defendants brought an application in the Federal Court of Canada for an order prohibiting the Minister of Health from allowing the plaintiff to market its version of the drug until the patent expired. The claim for a prohibition order was dismissed on the basis that the patent was invalid. However, that decision was one of narrow application and did not result in an in rem declaration of invalidity. Consequently, the plaintiff entered the market with its generic version of the drug. The defendants sued for patent infringement in the Federal Court. The trial judge found that the patent was invalid. That decision (the "invalidity decision") entailed two findings: a finding of inutility based on the "promise doctrine", and an alternative finding of "obviousness". The invalidity decision resulted in an in rem declaration that the patent was invalid. The Federal Court of Appeal upheld the invalidity decision insofar as it invalidated the patent for inutility, but expressly declined to endorse the trial judge's conclusions regarding obviousness, labeling her analysis on that point as obiter. The Supreme Court of Canada refused leave to appeal. The plaintiff brought an action in the Federal Court to recover damages on the basis that it was delayed entry into the market for the generic drug by the defendant's unsuccessful prohibition application. That action was successful. In 2011, the plaintiff commenced an action in the Superior Court in which it sought treble damages under the Ontario or U.K. Statute of Monopolies or, alternatively, under the Trade-marks Act. In 2017, the Supreme Court of Canada released its decision in an unrelated case in which it struck down the law on the promise doctrine, which was the foundation of the invalidity decision. The defendants brought a motion to amend the statement of defence to plead that the invalidity decision was based on wrong legal principles. The motion judge dismissed the motion on the basis that the proposed amendments would run afoul of issue estoppel as they would inevitably require the entire relitigation of an issue that had been finally decided by a court of competent jurisdiction, that is, the validity of the patent. He found that there had been no change in the law which would justify exercising discretion not to apply issue estoppel, noting that no provisions of the Patent Act relevant to the validity of the patent had been amended. The defendants appealed.

Held, the appeal should be allowed.

The motion judge erred in adopting too narrow a view of what constitutes a change in the law for the purpose of determining whether the court has discretion not to apply issue estoppel, as he appeared to have equated a "change in the law" with a change in a statutory provision. The Supreme Court of Canada's decision on the promise doctrine amounted to a change in the law. The plaintiff's submission that the invalidity decision was still supportable as the trial judge also invalidated the patent on the basis of obviousness could not succeed in light of the Federal Court of Appeal's conclusion that the obviousness finding was obiter. The application of issue estoppel would work an injustice to the defendants in the circumstances of this case. Given the centrality of the invalidity decision to the plaintiff's claim in this action, it seemed fundamentally unfair to preclude the defendants from arguing that that central element was suspect. If the plaintiff wished to pursue a further claim for damages arising out of what it contended was an invalid patent, it was obliged to prove the constituent elements of its claim viewed against the law as it existed at the time it was called upon to make that proof.

For the same reasons, the proposed amendments were not barred by the doctrine of collateral attack. As the application of collateral attack in this case would work the same injustice as issue estoppel, it should not be applied to block the proposed pleadings.

APPEAL

Appeal by the defendants from the judgment of Dunphy J., [2018] O.J. No. 641, 2018 ONSC 903 (S.C.J.) dismissing the motion to amend a statement of defence.

Counsel:

Gunars Gaikis and Lynn Ing, for appellants Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH and Sanofi-Aventis Canada Inc.

Marc Richard, for appellant Schering Corporation.

Nando De Luca and Daniel Cappe, for respondent.

The judgment of the court was delivered by

NORDHEIMER J.A.

[1] The appellants appeal from the judgment of the motion judge dated February 6, 2018 that dismissed their motions to amend their statements of defence. Specifically, the motion judge refused to permit the appellants to plead that a June 29, 2009 decision of the Federal Court of Canada invalidating a patent was decided based on wrong legal principles. The following reasons explain why I have determined that the motion judge erred in his conclusion. The proposed amendments ought to have been permitted.

I: BACKGROUND

[2] I will attempt to explain the background to this proceeding as briefly as I can. The underlying action involves a claim by the respondent for damages pursuant to three statutes: An Act concerning Monopolies, and Dispensation with penal laws, etc., R.S.O. 1897, c. 323 ("Ontario Statute of Monopolies"); An Act concerning Monopolies and Dispensations with Penal Laws, and the Forfeitures thereof, 1624, 21 Jac. I, c. 3 ("U.K. Statute of Monopolies"); and the Trade-marks Act, R.S.C. 1985, c. T-13.

[3] The claim involves a drug called "Ramipril" that was the subject of a number of patents which the Sanofi appellants either held or licensed. The present appeal relates to Canadian Patent No. 1,341,206 (the "206 Patent"), that was held by Schering and licensed by Sanofi.

[4] Pursuant to the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (the "Regulations"), the respondent sought to market its own Ramipril product. The respondent is well known for its production and marketing of generic drugs and this was another example of that practice. To do so, the respondent had to first address the 206 Patent. It did this by serving a "notice of allegations" on Sanofi, in accordance with s. 5 of the Regulations, alleging that the 206 Patent was invalid.

[5] In response, Sanofi brought an application in the Federal Court of Canada under s. 6 of the Regulations, for an order prohibiting the Minister of Health from allowing the respondent to sell its version of Ramipril until the 206 Patent expired. The respondent countered that the prohibition order should not be granted because the 206 Patent was invalid.

[6] On September 20, 2005, Mactavish J. of the Federal Court of Canada dismissed the claim for a prohibition order on the basis that the 206 Patent was invalid. Relying upon the "promise doctrine" (which I describe below), Mactavish J. held that the patent failed to soundly predict that the compounds in claim #12 of the 206 Patent would be useful as claimed. The respondent was unsuccessful on various other grounds of alleged invalidity. The decision was upheld on appeal and leave to appeal to the Supreme Court of Canada was refused: Aventis Pharma Inc. v. Apotex Inc., [2005] F.C.J. No. 1559, 2005 FC 1283, at paras. 158, 279-280, affd [2006] F.C.J. No. 208, 2006 FCA 64, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 136.

[7] The decision of Mactavish J. was one of narrow application relating only to the Regulations that permit the Minister of Health to grant a notice of compliance to permit someone to sell a new drug, including a drug that might infringe a current patent for an existing drug. The decision did not result in an in rem declaration that the 206 Patent was invalid. Consequently, after the respondent received regulatory approval and entered the market with its generic version of Ramipril, Sanofi, together with Schering, sued the respondent for infringement of the 206 Patent. The respondent counterclaimed, asserting that the 206 Patent was invalid.

[8] On June 29, 2009, after many days of trial, Snider J. of the Federal Court of Canada rendered her decision finding that the 206 Patent was invalid (the "invalidity decision"): Sanofi-Aventis Canada v. Apotex Inc., [2009] F.C.J. No. 986, 2009 FC 676. The invalidity decision entailed two findings -- a finding of inutility based on the "promise doctrine" and an alternative finding of "obviousness". First, as Mactavish J. had, Snider J. concluded that the inventors could not soundly predict that the claimed compounds would have the utility promised by the patent. Snider J. also found the 206 Patent was invalid as being uninventive or obvious, in the sense that its claims were not new and would have been apparent to a person of requisite skill. As had been the situation before Mactavish J., various other grounds of invalidity advanced by the respondent were not successful. In contrast to the decision of Mactavish J., the invalidity decision resulted in an in rem declaration that the 206 Patent was invalid.

[9] The Federal Court of Appeal upheld the invalidity decision insofar as it invalidated the 206 Patent for inutility: Sanofi-Aventis Canada Inc. v. Apotex Inc., [2011] F.C.J. No. 1532, 2011 FCA 300. The Federal Court of Appeal expressly declined to endorse Snider J.'s conclusions regarding obviousness, labelling her analysis on that point as "obiter". The Federal Court of Appeal added, at para. 13:

These reasons should not be taken as an endorsement of the judge's conclusions regarding the issue of obviousness and do not constitute such an endorsement.

The Supreme Court of Canada refused leave to appeal: Sanofi-Aventis Canada v. Apotex Inc., [2011] 3 S.C.R. xi.

[10] Shortly after the release of the invalidity decision in 2009, the respondent brought an action in the Federal Court of Canada to recover damages available under s. 8 of the Regulations on the basis that it was delayed entry into the Ramipril market by the unsuccessful prohibition application brought by Sanofi (the "s. 8 proceeding"). The respondent succeeded in this claim and was awarded $215 million in compensation: Apotex Inc. v. Sanofi-Aventis, [2012] F.C.J. No. 620, 2012 FC 553 (F.C.), vard [2014] F.C.J. No. 295, 2014 FCA 68, affd [2015] 2 S.C.R. 136, [2015] S.C.J. No. 20, 2015 SCC 20. None of the appellants are seeking to obtain a return of this compensation.

[11] It should be noted that, in the s. 8 proceeding, the respondent included the same claims that they currently advance in this action. However, when the appellants brought a motion to strike out those claims on jurisdictional grounds, the respondent voluntarily withdrew the claims.

[12] On June 27, 2011, the respondent commenced this action in which it seeks treble damages under the Ontario Statute of Monopolies or, alternatively, under the U.K. Statute of Monopolies. The respondent also claims additional or alternative damages under the Trade-marks Act. The action progressed slowly, at least until the motion judge began to case manage the proceeding. Just prior to the release of a decision of the Supreme Court of Canada, that I am about to describe, this action was to be set down for trial by mid-February 2018.

II: THE ASTRAZENECA DECISION

[13] On June 30, 2017, the Supreme Court of Canada released its decision in AstraZeneca Canada Inc. v. Apotex Inc., [2017] 1 S.C.R. 943, [2017] S.C.J. No. 36, 2017 SCC 36. In its decision, the Supreme Court struck down the law on the promise doctrine, which had been the foundation for the invalidity decision. The Supreme Court found, at para. 2, that the promise doctrine was "not the correct approach to determine whether a patent has sufficient utility". The promise doctrine, as applied by the Federal Courts, required a review of the entire specifications, including the patent's claims and disclosure, to identify all promises of utility. If any identified promise of utility was not fulfilled, then the utility requirement was not met and the patent was declared to be invalid in its entirety. The Supreme Court rejected this approach. It held that a single use related to the nature of the subject matter was sufficient to demonstrate utility and, in proving utility, even a scintilla of utility will suffice: AstraZeneca, at para. 55.

[14] As a result of this decision, the appellants say that the invalidity decision is fundamentally flawed. Indeed, they contend that had the decision in AstraZeneca been available to Snider J., she would not have invalidated the 206 Patent. To give effect to this contention, the appellants sought to amend their statements of defence in this action, as I explained earlier.

III: THE DECISION BELOW

[15] There was no real issue between the parties before the motion judge regarding the legal principles that apply to a proposed amendment to a pleading under rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The motion judge correctly set out those principles, including the mandatory language of rule 26.01, which requires that leave to amend be granted in the absence of non-compensable prejudice. The motion judge also correctly set out the exceptions to that mandatory language, including that the proposed amendment had to advance a reasonable cause of action or defence.

[16] The respondent resisted the proposed amendments to the appellants' statements of defence on the basis that the proposed amendments did not allege tenable defences. More specifically, the respondent contended that the proposed defences were subject to the application of the issue estoppel branch of the doctrine of res judicata, and also that the proposed defences represented a collateral attack on the invalidity decision.

[17] The motion judge found that the respondent would suffer no non-compensable prejudice as a result of the proposed amendments. However, he dismissed the appellants' motions on the basis that the proposed amendments would run afoul of issue estoppel, as they "would inevitably require the entire re-litigation of an issue that has been finally decided by a court of competent jurisdiction" (para. 11), that is, the validity of the 206 Patent. The motion judge also found that the invalidity decision remained "valid and binding" and could not be the subject of a collateral attack in another proceeding. The motion judge stressed that there had to be finality to litigation.

[18] While I will come to discuss the legal requirements of issue estoppel in a moment, it is sufficient at this stage to note that the motion judge found that the "special circumstances" exception to issue estoppel did not apply in this case, as there was no change in the law. More specifically, the motion judge said, at para. 64:

Where, as here, the special circumstance pleaded to avoid the application of the doctrine of res judicata would effectively require the re-litigation of the entire question that was already decided after a lengthy trial, there are no special circumstances. That is precisely the public policy outcome that res judicata seeks to avoid.

IV: ANALYSIS

[19] I would note, at the outset, that the scope of the "special circumstances" exception to issue estoppel constitutes a question of law. The standard of review is thus one of correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 8.

[20] The requirements of, and purpose behind, the doctrine of res judicata were thoroughly canvassed in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, 2001 SCC 44. In that decision, Binnie J. reviewed the historical development of the doctrine and its component parts: cause of action estoppel and issue estoppel. He also reviewed the development of the doctrine of collateral attack.

[21] As set out in Danyluk, at para. 25, the preconditions to the operation of issue estoppel are (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. It is clear that those three preconditions are met in this case.

[22] However, Binnie J. went on in Danyluk to point out that the court retained a discretion not to apply the doctrine where to do so would work an injustice. More specifically, Binnie J. adopted the observation in British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc., [1998] B.C.J. No. 1043, 159 D.L.R. (4th) 50 (C.A.), where Finch J.A. said, at para. 32:

It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.

[23] Binnie J. added, at para. 67:

The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.

[24] Finally, Binnie J. concluded with a statement of what he said was the most important factor in deciding whether issue estoppel ought to be applied in any given case. He said, at para. 80:

As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice.

[25] The exercise of the discretion to apply issue estoppel was also the subject of the decision of this court in Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321, [1999] O.J. No. 5 (C.A.). Of particular importance, for the purposes of this case, is the observation of Laskin J.A., at para. 51, where he said:

If the decision of a court on a point of law in an earlier proceeding is shown to be wrong by a later judicial decision, issue estoppel will not prevent relitigating that issue in subsequent proceedings. It would be unfair to do otherwise.

[26] The motion judge sought to avoid this point by finding that there was no change in the law involved in this case. In doing so, the motion judge appears to have equated a change in the law with a change in a statutory provision, since he said, on this point, at para. 59:

There has been [no] change in the law. No provisions of the Patent Act relevant to the validity of the 206 Patent have been amended.

[27] In my view, the motion judge erred in adopting this narrow view of what constitutes a change in the law for the purpose of determining whether the court has discretion not to apply issue estoppel. The motion judge does not cite any authority for this narrow view and it appears to directly conflict with the observation made by Laskin J.A. in Minott in which he refers to a decision of a court "on a point of law". That said, a change in the law only provides the opportunity to argue that issue estoppel ought not to be applied. It does not dictate that that should be the result.

[28] It is clear, in this case, that there was a decision of a court on a point of law. Indeed, it was a decision of the Supreme Court of Canada on the applicability of the promise doctrine, the legal principle that was central to the conclusion reached by the Federal Court of Canada on the validity of the 206 Patent. In that regard, it is similar to the result reached in Hockin v. Bank of British Columbia, [1995] B.C.J. No. 688, 123 D.L.R. (4th) 538 (C.A.), another case where an intervening decision of the Supreme Court of Canada led to a reconsideration of an earlier decision of the British Columbia Court of Appeal. The motion judge sought to distinguish Hockin but he did so on grounds that I find unpersuasive.

[29] In response, the respondent submits that, even if the invalidity decision is called into question insofar as it is founded on the promise doctrine, the Federal Court of Canada also invalidated the 206 Patent on the basis of obviousness so the invalidity decision still stands on that alternative ground. That submission cannot succeed in light of the Federal Court of Appeal's conclusion that the obviousness conclusion was "obiter". Additionally, the Federal Court of Appeal expressly refused to rule on the correctness of that conclusion. Consequently, the invalidity decision cannot be considered to be binding on the basis of obviousness nor would it be fair to hold the appellants to it, given that their appeal on that point was never determined.

[30] I return to the final factor enunciated by Binnie J. in Danyluk that requires the court to [at para. 80] "stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice". In my view, the result of the motion judge's decision would work an injustice in this case.

[31] Counsel for the respondent acknowledged, in the course of his submissions, that the invalidity decision is central to the respondent's claim. Even absent that acknowledgement, at least that much would be clear in this case. The respondent's claim is a novel one, as the motion judge himself characterized it. It is evident, however, that in order to have any prospect of success, the respondent will have to establish that the monopoly that the appellants enjoyed in the market for Ramipril was an unlawful one. If the monopoly was the result of a valid patent, and thus was a monopoly authorized by law, there does not appear to be any way for the respondent to succeed in its claim. Thus, it would appear to be beyond debate that the invalidity of the 206 Patent is an essential element of the claims advanced here. Indeed, it is arguable that an invalid patent is an essential element of any claim of this type: see Actavis Pharma Co. v. Alcon Canada Inc., [2016] O.J. No. 5965, 2016 ONSC 7151 (S.C.J.) and the cases referred to therein.

[32] Given the centrality of the invalidity decision to this action, in considering whether the elements of the claim will be made out by the respondent, it seems fundamentally unfair to preclude the appellants from arguing that this central element is suspect. While it will be up to the trial judge to determine whether the respondent, as plaintiff, can establish that element of its cause of action -- that is, the invalidity of the 206 Patent and the consequent unlawful monopoly -- the appellants, as defendants, ought fairly to be able to raise defences to the proof of that element.

[33] I appreciate that this conclusion may result in the relitigation of the validity of the patent. While the appellants suggested that that result would not necessarily follow from their proposed defence, their suggestion in that regard is itself a suspect one. I note that, in its draft amended reply, the respondent goes out of its way to raise that very issue.

[34] I am well aware that, if that is the result of allowing the proposed amendments to the statements of defence, the trial of this action will be both delayed and possibly significantly expanded. That, however, is the direct result of the respondent's effort to advance a novel claim, one that seeks an extraordinary level of damages, over and above the compensation that it has already received out of this matter. In that respect, it is the respondent who is effectively raising the central issue, regarding the validity of the patent, for a second time. If the respondent wishes to make that choice, in these circumstances, then it does not lie with it to complain that the appellants ought not to be able to have an equal opportunity to defend. I note, in passing on this point, that the damages being claimed were roughly estimated, during the course of the hearing, at between $1 billion and $3 billion. The costs of relitigating the validity of the patent pale in comparison to the amounts sought.

[35] I also realize that, in reaching my conclusion, I am differing with the conclusion that the Federal Court of Appeal reached in Eli Lilly Canada Inc. v. Teva Canada Ltd., [2018] F.C.J. No. 312, 2018 FCA 53, on a similar point. Indeed, the Federal Court of Appeal cited the motion judge's reasoning in this case in support of its decision to apply issue estoppel in that case.

[36] In explaining the differing result, I make the following observations. First, by definition when one is exercising a discretion, different courts will exercise that discretion differently in different cases. That is the very nature of a discretion. Second, the issue in Eli Lilly was the appeal of a damages award of the same type as the $215 million compensation in this case, which is not the subject of any challenge by the appellants. Third, this case does not involve an appeal of a trial decision but rather the right to make amendments to a pleading in defence of a new cause of action, all in the context of a presumption that amendments will be permitted. It will be up to the trial judge to determine if that defence succeeds. Fourth, I do not accept the distinction drawn by the Federal Court of Appeal between litigation involving commercial interests, and other types of litigation, and the suggestion that issue estoppel is a more applicable doctrine in the former. I am unaware of any jurisprudence that establishes that res judicata and collateral attack have different impacts depending on the type of litigation that is involved. Fifth, I do not agree with the concern expressed by the Federal Court of Appeal that permitting a change in the law, such as the one here involving a decision of the Supreme Court of Canada on a fundamental legal point, to constitute a special circumstance will effectively weaken the desired objective of finality. This was a rare instance that resulted in a foundational change to the law in this particular area. In my view, it is precisely the type of special circumstance where the principle of finality should yield to the justice of the case. And, in any event, each such circumstance still falls for an independent and contextual application of the discretion.

[37] In the end result, in my view, the strict application of issue estoppel in this case would work an injustice on the appellants. If the respondent wishes to pursue a further claim for damages arising out of what they contend is an invalid patent, they will be obliged to prove the constituent elements of their claim viewed against the law as it exists at the time that they are called upon to make that proof. Justice requires that the appellants be able to argue that a prior conclusion regarding the patent is no longer a valid conclusion in light of changes in the law.

[38] For the reasons set out above, the appellants' proposed amendments are also not barred by the doctrine of collateral attack. In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, the Supreme Court of Canada described issue estoppel and collateral attack as "particular applications of a broader doctrine of abuse of process" (at para. 22). Though not entirely interchangeable, the Supreme Court went on to hold the following, at para. 53:

The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result.

As the application of collateral attack in this case would work the same injustice as issue estoppel, it should not be applied to block the proposed pleadings.

[39] Finally, I will briefly address the motion judge's conclusion that s. 62 of the Patent Act, R.S.C. 1985, c. P-4 supported his conclusion regarding the special circumstances application of issue estoppel. In my view, there is nothing in s. 62 that overrides the proper application of the special circumstances exception or that could fairly be seen as altering its constituent elements. Given the historical application of the principle of res judicata, much clearer language would be required in that section in order to accomplish such a result.

V: CONCLUSION

[40] I would allow the appeal and set aside the order below. The appellants shall have the right to seek to amend their statements of defence along the lines originally proposed, subject only to any further issues regarding any pleading irregularities that may exist in the proposed amendments. Those issues, if they exist, can be dealt with by the case management judge.

[41] I would order that the respondent pay costs in the agreed amount of $40,000--$20,000 to Schering and $20,000 to Sanofi.

Appeal allowed.

Notes

1 Ramipril belongs to a class of drugs used to treat high blood pressure and related heart ailments.

2 The expression "special circumstances" can be found in the decision of the House of Lords in Arnold v. National Westminster Bank PLC, [1991] 2 A.C. 93, [1991] 3 All E.R. 41 (H.L.).

3 In an unfortunate typographical error in the reasons, the word "no" appears as "on".

4 Obiter dictum - A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive): Black's Law Dictionary, 10th ed., Thomson Reuters, 2014.

5 In making that observation, I do not reach any conclusion on whether the contents of the proposed amended reply comply with the requirements for a reply under the Rules of Civil Procedure.

End of Document