Jimmie Mae Carter v. Amgen, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMIE MAE CARTER,
Plaintiff-Appellant,
v.
AMGEN, INC.,
Defendant-Appellee.
No. 15-56426
D.C. No.
2:15-cv-03329-PSG-AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted February 17, 2017
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges; and MURPHY III,**
District Judge.
Jimmie Mae Carter appeals the district court’s order dismissing her case against
Amgen, Inc. with prejudice. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6).
FILED
MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Stephen Joseph Murphy, III, United States District
Judge for the Eastern District of Michigan, sitting by designation.

-- 1 of 4 --

See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). We
review for abuse of discretion denials of leave to amend and for extensions of time.
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010); Manzarek
v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). We affirm
the district court’s dismissal of Carter’s First Amended Complaint.
1. Carter’s claims were time-barred. Carter’s husband last purchased Aranesp
in 2007, but Jimmie Carter did not file her suit until 2014. California’s and Texas’
statutes of limitations control her claims. See Bancorp Leasing & Fin. Corp. v.
Agusta Aviation Corp., 813 F.2d 272, 274 (9th Cir. 1987). Because the longest
applicable statute of limitations was four years, see Cal. Bus. & Prof. Code § 17208,
all of Carter’s claims were time-barred. The “discovery rule” did not toll the
limitation period because Carter did not show that her cause of action could not have
been discovered earlier despite reasonable diligence. See Fox v. Ethicon
Endo-Surgery, Inc., 110 P.3d 914, 920–21 (Cal. 2005); Bertrand v. Bertrand, 449
S.W.3d 856, 867–68 (Tex. App. 2014). Specifically, Carter did not allege that she or
her husband ever asked his doctors why they switched his medicine or why, if they
had asked, they would not have received that information. Carter also concedes that
her husband’s lawyer knew, in 2006, why his doctors switched him to Aranesp. And
because “an attorney’s knowledge is imputed to the client,” Bennett v. Shahhal, 89
2

-- 2 of 4 --

Cal. Rptr. 2d 272, 276 n.3 (Ct. App. 1999) (citation omitted), Carter could have asked
either her husband or his attorney why the medication was switched.
2. Even absent the time bar, Carter’s First Amended Complaint failed to satisfy
Rule 9(b)’s heightened pleading standard for claims alleging fraud because it did not
state with particularity the specific false or misleading statements that Amgen
allegedly made. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125–26 (9th Cir.
2009); Odom v. Microsoft Corp., 486 F.3d 541, 553 (9th Cir. 2007). Her references
to Amgen representatives’ alleged “oral and written statements” and instructions
failed to specify when and where those statements were made, the specific content of
the statements, and the identities of the individuals who made them. And Amgen’s
2012 plea agreement did not contain any specifically false or misleading statements
about Aranesp’s use in treating anemia of cancer. Thus, the district court properly
dismissed the complaint for failure to satisfy Rule 9(b).
3. The district court did not abuse its discretion in denying Carter’s motion for
an extension. Even though the district court allowed Carter almost a full month to
amend her First Amended Complaint and gave her specific instructions on which
allegations should be pled to remedy the deficiencies, Carter sought a 30-day
extension one week before the filing deadline. The district court considered that the
case had been pending for nine months and still had not proceeded to discovery, the
3

-- 3 of 4 --

prejudice to Amgen in incurring additional costs from the delay, and the fact that it
had already dismissed two of Carter’s previous complaints. See Zucco Partners, LLC
v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (a district court may dismiss
a case without leave to amend “due to undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, and futility of amendment” (alterations and citation omitted)).
Each party shall bear its own costs on appeal.
AFFIRMED.
4

-- 4 of 4 --