2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-25-2014

In re: Avandia Marketing

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3463

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Recommended Citation

"In re: Avandia Marketing" (2014). 2014 Decisions. Paper 432.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/432
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3463

_____________

IN RE: AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS 

LIABILITY LITIGATION

PAUL DUMPSON,

Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-07-md-1871 & No. 2-10-cv-02476)

District Judge: Honorable Cynthia M. Rufe

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 27, 2014

Before: FUENTES, SHWARTZ, Circuit Judges, and ROSENTHAL, District Judge.

1

(Filed: April 25, 2014)

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OPINION

____________

 

1

The Honorable Lee H. Rosenthal, United States District Judge for the Southern District 

of Texas, sitting by designation.
2

FUENTES, Circuit Judge:

Paul Dumpson is a former user of Avandia, an oral medicine that is manufactured 

by GlaxoSmithKline and approved by the FDA to treat Type 2 diabetes. On behalf of 

himself and a class of similarly situated people, 2 Dumpson seeks a refund of payments 

for Avandia, including insurance co-payments. The District Court dismissed Dumpson’s 

complaint for failure to state a claim upon which relief can be granted. For the reasons 

that follow, we affirm the District Court’s dismissal of Dumpson’s claims with prejudice. 

I.

Dumpson, a California resident, took Avandia to treat his Type 2 diabetes 

between 2000 and 2007. Pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. 

§ 1332(d)(2), Dumpson subsequently filed a putative class action against 

GlaxoSmithKline in the Eastern District of Pennsylvania. The District Court dismissed 

his original complaint for failure to state a claim pursuant to Federal Rule of Civil 

Procedure 12(b)(6), but granted him leave to amend the complaint. 

As in the original complaint, the Amended Complaint alleges that

GlaxoSmithKline violated three California consumer protection statutes: the Consumers

Legal Remedies Act, the Unfair Competition Law, and the False Advertising Law.3See 

Cal. Civ. Code § 1750; Cal. Bus. & Prof. Code §§ 17200, 17500. In particular, Dumpson 

alleges that GlaxoSmithKline “had longstanding knowledge of the dangers associated 

 

2 No class has been certified, since the District Court did not rule on a motion for class 

certification prior to dismissing Dumpson’s complaint.

3 Dumpson also asserted a claim for unjust enrichment. He has not appealed the District 

Court’s dismissal of this claim. 
3

with Avandia, including significant heart attack or heart-disease related risks,” but 

“concealed these dangers in order to promote its drug.” J.A. 21. He claims that 

GlaxoSmithKline’s warnings for Avandia “may not have been sufficient enough for [his] 

endocrinologist to prescribe Avandia to” him and that his doctor “might have considered 

prescribing [him] an alternative medication” had different warnings been provided. J.A. 

22.

The District Court dismissed the Amended Complaint with prejudice, holding that 

Dumpson “has not alleged any harm to him: he does not allege that his health was 

impaired by the use of Avandia, nor does he identify what he would have paid for some 

other drug had he not taken Avandia, or anything beyond that his physician ‘might have 

considered prescribing’” another medication. J.A. 5. In dismissing the Amended 

Complaint, the District Court also pointed out that Dumpson “fails to allege what 

advertising materials or information he or his (unidentified) prescribing physician read or 

relied upon.” J.A. 5. Additionally, the court denied Dumpson leave to amend the 

complaint, reasoning that “further amendment would be inequitable and likely futile” 

because the “complaint still fails to state a cause of action.” J.A. 6. 

Dumpson appeals from the District Court’s dismissal of his complaint and its

denial of leave to amend the complaint.4

 

4 We have jurisdiction over this action pursuant to 28 U.S.C. § 1291. We are also 

satisfied that Dumpson’s allegations are sufficient to establish Article III standing even 

though, as set forth herein, they are legally insufficient to provide a basis for relief. See 

Kulick v. Pocono Downs Racing Ass’n., 816 F.2d 895, 899 (3d Cir. 1987) (dismissal for 

lack of jurisdiction is not appropriate simply because the legal theory is foreclosed or 

lacks merit). We exercise plenary review over a district court’s dismissal for failure to 
4

II.

A.

We have carefully reviewed the record and the parties’ arguments. For

substantially the same reasons set forth by the District Court, we conclude that Dumpson 

failed to state a claim upon which relief can be granted. Therefore, we affirm the District 

Court’s dismissal of the Amended Complaint.

B.

We next consider whether the District Court abused its discretion in denying 

Dumpson leave to amend his complaint. A district court has “substantial leeway in 

deciding whether to grant leave to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 

2000). Denial of leave to amend a complaint is especially appropriate where a party has 

already been given the opportunity to amend the complaint. See id. at 374 (“[W]e are 

inclined to give the District Court even broader discretion when, as here, the court has 

already granted the requesting party an opportunity to amend its complaint.”). 

Here, the District Court granted Dumpson an opportunity to amend his original 

complaint, but Dumpson failed to cure the complaint’s pleading deficiencies. We agree 

with the District Court that “further amendment would be inequitable and likely futile,” 

J.A. 6, and therefore affirm the denial of leave to amend the complaint.

III.

 

state a claim. Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010). We review a district 

court’s denial of leave to amend a complaint for abuse of discretion. In re Burlington 

Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
5

For the foregoing reasons, we affirm the District Court’s dismissal of Dumpson’s 

complaint with prejudice.