United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES JUDGE
matter comes before the Court on the Plaintiff, Michael
Murphy's, Objection to Report and Recommendation of the
Magistrate Judge (Doc. 32), filed in response to the
Magistrate Judge's Report and Recommendation
(Doc. 30) (“Recommendation”). Defendant
Boston Scientific Corporation opposes the objection (Doc.
35). Oral argument is not necessary. The Court has carefully
considered the law, the facts in the record, and the
arguments and submissions of the parties and is prepared to
following reasons, the Plaintiff's objection is overruled
in part and sustained in part. Preliminarily, the Court finds
that a motion to amend involving a potentially futile
amendment is a dispositive matter. (See
Recommendation, Doc. 30 at 2 n. 3 (citing HCC, Inc.
v. R H & M Mach. Co., 39 F.Supp.2d 317, 321
(S.D.N.Y. 1999)).) Accordingly, this Court conducts a de
novo review of the Recommendation. Fed.R.Civ.P.
72(b)(3). “The district judge may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
Court agrees with the Recommendation that
Plaintiff's proposed amended complaint fails to
adequately allege a non-preempted parallel claim. (Doc. 30 at
11-15.) Plaintiff's objection to this part of the ruling
is thus overruled, and the Recommendation is
affirmed on this ground.
with respect to the Recommendation's denial of
another opportunity to amend the operative complaint, this
Court will sustain the objection. The Court does so on two
while the Plaintiff previously amended his complaint in
response to a prior motion to dismiss (See Docs. 10,
18, 26), Plaintiff had no prior opportunity to amend in
response to a ruling by this Court on the sufficiency of
Plaintiff's claims. The Court believes that affording
Plaintiff one final opportunity to amend is the most
appropriate course of action under these circumstances.
See Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955)
(“[A] court ordinarily should not dismiss the complaint
except after affording every opportunity to the plaintiff to
state a claim upon which relief might be granted.”); 5B
Charles A. Wright, Arthur R. Miller, et al.,
Federal Practice & Procedure § 1357 (3d ed.
2016) (“Thus, the cases make it clear that leave to
amend the complaint should be refused only if it appears to a
certainty that the plaintiff cannot state a claim. . . . A
wise judicial practice (and one that is commonly followed)
would be to allow at least one amendment regardless of how
unpromising the initial pleading appears because except in
unusual circumstances it is unlikely that the district court
will be able to determine conclusively on the face of a
defective pleading whether the plaintiff actually can state a
claim for relief.”); JMCB, LLC v. Bd. of Commerce
& Indus., No. 17-77, 2018 WL 4039183, at *18 (M.D.
La. Aug. 23, 2018) (“While Plaintiff previously amended
its complaint, it did not do so in response to a ruling by
this Court assessing the sufficiency of Plaintiff's
claims. Thus, though [defendant] makes a compelling case for
denying leave to amend, the Court will act in accordance with
the ‘wise judicial practice' and general rule and
grant Plaintiff's request [to amend].”).
approach appears even more proper given the nature of
Plaintiff's objection here. Specifically, for the first
time in his objection, Plaintiff raises new arguments and
authority, including an FDA letter sent to a company
ultimately acquired by Defendant that advised of FDA
violations. While Defendant makes a compelling argument why
Plaintiff has still failed to state a claim, the Court finds
that these contentions are better assessed following a new
motion to dismiss. For this additional reason, Plaintiff will
be given leave to amend.
the Court advises Plaintiff of his obligations under Rule 11
of the Federal Rules of Civil Procedure. Plaintiff should
have a good faith basis in law and fact for any claims he
makes. Fed.R.Civ.P. 11(b)(2), (3). While the Court has no
reason to doubt Plaintiff's adherence to this rule, the
Court issues this reminder as a precaution.
IT IS ORDERED that the Plaintiff's
objection is OVERRULED IN PART and
SUSTAINED IN PART. Plaintiff's objection
is SUSTAINED in that Plaintiff shall have
twenty-eight (28) days in which to amend the operative
complaint to cure the deficiencies therein. Failure to do so
will result in the dismissal of his claims with prejudice. In
all other respect, Plaintiff's ...