United States District Court, W.D. Kentucky, Owensboro Division
JOSEPH J. SIMS PLAINTIFF
ATRIUM MEDICAL CORP. DEFENDANT
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., United States District Court Chief Judge
matter is before the Court on Plaintiff's Motion for
Leave to File First Amended Complaint. [DN 16]. Fully
briefed, this matter is ripe for decision. For the following
reasons, the Plaintiff's motion is GRANTED IN PART and
DENIED IN PART.
early 2015, Plaintiff Joseph J. Sims suffered a bilateral
inguinal hernia in his lower abdomen. On or about May 27,
2015, Dr. Anthony Kaiser performed a bilateral laparoscopic
hernia repair on Sims at Deaconess Health System in
Evansville, Indiana. Dr. Kaiser used tacks and two identical
pieces of surgical mesh. The mesh was ProLite Mesh made by
Defendant Atrium Medical Corp. (“Atrium”).
Following the initial surgery, Sims suffered chronic pain.
After initial efforts failed to resolve Sims' chronic
pain and other symptoms, Dr. Kaiser performed a laparoscopic
removal of one of the pieces of mesh on or about February 24,
2017, at the same hospital in Evansville. Dr. Kaiser noted in
his operative report that Sims suffered significant adhesions
of the mesh, eventually requiring cauterization of the mesh
from Sims' bone. Later, on or about September 29, 2017,
Dr. Kaiser performed an additional repair surgery during
which he removed more mesh which had adhered to Sims'
intestines. Despite both reparative surgeries, Sims was
unable to continue working at his job due to chronic pain and
he remains unable to work today.
December 14, 2017, Sims filed a Complaint alleging six causes
of action against Atrium-Negligence (Count I), Strict
Products Liability (Count II), Negligence Per Se (Count III),
Breach of Implied Warranty (Count IV), Breach of Express
Warranty (Count V), and Negligent Misrepresentation (Count
V). [DN 1]. Thereafter, Atrium filed a Motion to Dismiss
stating that Sims' Complaint failed for three independent
reasons: “(1) the ProLite Mesh Instructions for Use,
cited and relied upon by Plaintiff in the Complaint, contain
the very warnings Plaintiff alleges were not provided; (2)
each of the claims asserted fails to satisfy the pleading
standards articulated in Twombly and Iqbal; and (3) Plaintiff
cannot adequately plead causation.” [DN 8 at 2]. In
response, Sims refuted Atrium's claims and requested that
the Motion to Dismiss be denied, or, in the alternative, that
he be given leave to amend his Complaint. [DN 13]. Atrium
replied, stating that Sims' failure to respond to
arguments in the Motion to Dismiss constituted admissions
and, as such, granting leave to amend would be futile. [DN
14]. On July 16, 2018, the Court issued an Order stating that
Sims' prior request for leave to amend was deficient and
that if he wished to amend his complaint “he must file
a proper motion to amend and tender the proposed amended
complaint within 15 days of the entry of this order.”
[DN 15 at 2]. The Order further stated that the Court would
not rule on Atrium's Motion to Dismiss until it decided
whether to allow the amended complaint. On July 31, 2018, 15
days after the Court's Order, Sims filed a Motion for
Leave to File First Amended Complaint and attached a Proposed
Amended Complaint asserting the same causes of action. [DN
16, 16-1]. Atrium responded on August 21, 2018, asserting
that Sims' motion should be denied because Sims waived
his arguments, amendment would cause undue delay, and
amendment would be futile. [DN 18].
Standard of Review
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), a court “must construe the
complaint in the light most favorable to plaintiffs, ”
League of United Latin Am. Citizens v. Bredesen, 500
F.3d 523, 527 (6th Cir. 2007) (citation omitted),
“accept all well-pled factual allegations as true,
” id., and determine whether the “complaint . . .
states a plausible claim for relief, ” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). Under this standard,
the plaintiff must provide the grounds for its entitlement to
relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). A plaintiff satisfies this standard
only when it “pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. A complaint falls short if it pleads facts “merely
consistent with a defendant's liability” or if the
alleged facts do not “permit the court to infer more
than the mere possibility of misconduct.” Id.
at 679. Instead, “a complaint must contain a
‘short and plain statement of the claim showing that
the pleader is entitled to relief.'” Id.
at 663 (quoting Fed.R.Civ.P. 8(a)(2)). “But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Id. at
679 (quoting Fed.R.Civ.P. 8(a)(2)).
“matters outside the pleadings are presented to and not
excluded by the court” when ruling upon a motion under
Rule 12(b)(6), the Federal Rules require that “the
motion must be treated as one for summary judgment under Rule
56.” Fed.R.Civ.P. 12(d). This Rule does not require the
Court to convert a motion to dismiss into a motion for
summary judgment every time the Court reviews documents that
are not attached to the complaint. Greenberg v. Life Ins.
Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999).
“[W]hen a document is referred to in the complaint and
is central to the plaintiff's claim . . . [, ] the
defendant may submit an authentic copy [of the document] to
the court to be considered on a motion to dismiss, and the
court's consideration of the document does not require
conversion of the motion to one for summary judgment.”
Id. (quotation omitted).
Motion to Dismiss for Failure to State a Claim
challenged Sims' Complaint and moved for dismissal under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. [DN 8].
According to Atrium, Sims' Complaint fails for the three
independent reasons stated above. [DN 8-1 at 2]. In response,
Sims states that his claims are sufficiently pled, and, in
the alternative, asks the Court for leave to file an amended
complaint. [DN 13]. Sims filed a Motion for Leave to File an
Amended Complaint, which if granted, would make Atriums'
argument of lack of factual allegations moot. [DN 16]. As
Sims filed a Motion for Leave to File an Amended Complaint to
cure any deficiencies in the original Complaint, the Court
must first address whether it will grant Sims' Motion for
Leave to File an Amended Complaint. [DN 16].
Motion to Amend
motion for leave to file an amended complaint is governed by
Fed.R.Civ.P. 15(a)(2) which states that “a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” A district court
should freely grant a plaintiff leave to amend a pleading
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). However, a district court may deny a motion to
amend where there is “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, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962).
Waiver of Arguments
Atrium's Response to Sims' Motion to Amend, Atrium
argues that the motion should be denied “because
amendment is futile where Plaintiff has waived opposition to
Atrium's dismissal arguments by failing to address them
in his response to Atrium's motion to dismiss.” [DN
18 at 2]. As per the Court's July 16, 2018 Order, if the
Court grants Sims' Motion to Amend, Atrium's Motion
to Dismiss will be moot. [DN 15]. As such, Sims' response
in his Opposition to the Motion to Dismiss is of no
consequence to his Motion to Amend. [DN 13].