United States District Court, D. Connecticut
EDWARD R. KARAZIN and IRENE M. KARAZIN, Plaintiffs,
WRIGHT MEDICAL TECHNOLOGY, INC., Defendant.
RULING ON PLAINTIFFS' MOTION TO AMEND AND/OR
Bond Arterton, U.S.D.J.
Edward R. Karazin and his wife Irene M. Karazin bring this
action against Defendant Wright Medical Technology, Inc.
("Wright") to recover damages allegedly suffered in
connection with the malfunction of a Profemur Z device
implanted in Mr. Karazin. On August 28, 2017, the parties and
the Court participated in a telephonic pre-filing conference.
(See Ex. 1 (Conf. Tr.) to Def.'s Opp. to
Pls.' Mot. to Amend [Doc. # 90-1].) Because Defendant
intended to file a motion to dismiss for failure to state a
claim under Fed.R.Civ.P. 12(b)(6), Plaintiffs agreed during
that conference to file an amended complaint which would
endeavor to resolve the pleading deficiencies identified in
Defendant's forthcoming motion. (Id. at
4:25-5:4.) Plaintiffs filed their Amended Complaint [Doc. #
35], and Defendant subsequently filed a motion to dismiss
that Amended Complaint for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), arguing that the amendment did not
resolve the complaint's pleading deficiencies. (Mot. to
Dismiss [Doc. # 39].)
Court granted Defendant's Motion to Dismiss in part,
dismissing Plaintiffs' design defect, malfunction theory,
and negligence claims for failure to state a claim. (Ruling
on Def.'s Mot. to Dismiss [Doc. # 68].) Plaintiffs now
move to further amend their Amended Complaint to remedy the
pleading deficiencies identified in that Ruling or, in the
alternative, for the Court to reconsider its Ruling.
(Pls.' Renewed Mot. to Amend and/or to Reconsider [Doc.
to amend pleadings should be "freely give[n] . . . when
justice so requires," Fed.R.Civ.P. 15(a)(2), and courts
may not decline leave to amend "[i]n the absence of any
apparent or declared reason" for such denial. Foman
v. Davis, 371 U.S. 178, 182 (1962). However, where a
Plaintiff has already "been given ample prior
opportunity to allege a claim," denial of leave to amend
again is appropriate. De Jesus v. Sears, Roebuck &
Co, Inc., 87 F.3d 65, 72 (2d Cir. 1996). See also
Levin v. Credit Suisse Inc., 577 Fed.Appx. 85, 86 (2d
Cir. 2014) (upholding denial of "leave to amend on the
grounds that [plaintiff] already had three opportunities to
adequately plead his case, that he received letters from
Defendants-Appellees explaining the deficiencies in his
[Second Amended Complaint] and nonetheless chose to stand on
his pleadings, and that [plaintiffs] delay in seeking to
replead until after Defendants had fully briefed their
motions and the district court had rendered its decision
prejudiced Defendants-Appellees."); Ganley v. New
York, 734 Fed.Appx. 784, 786 (2d Cir. 2018) (upholding
denial of leave to further amend complaint where plaintiff
had already amended once in response to "a detailed
explanation of the deficiencies he should address" and
sought a second opportunity to "address the same
support of their Motion, Plaintiffs argue the importance of
"liberality in amendment of pleadings" and claim
that there would "be no undue prejudice, etc., to the
defendant if Plaintiffs were permitted to amend their
complaint a second time, because little discovery has been
conducted and "this case is still relatively
'new'." (Pls.' Mem. Supp. Mot. to Amend
and/or Reconsider [Doc. # 78] at 2-4.) Plaintiffs also argue
that "the defendant has long been on notice as to the
nature of the plaintiffs' claims, i.e. that Wright's
modular design made Edward Karazin's implant
defective" and that there are "no special pleading
requirements" for products liability claims.
(Id. at 2-3.)
pre-filing conference with the parties on August 28, 2017,
the Court explained to the Plaintiffs that "the purpose
of a pre-filing conference, particularly with respect to a
Motion to Dismiss, is to give the plaintiff the opportunity,
having heard the basis for the forthcoming motion [to
dismiss], the opportunity to make a Final Amended
Complaint." (Conf. Tr. at 5:10-15.) The Court explicitly
warned the Plaintiffs that "there will not be another
chance to amend further if the Motion to Dismiss is
granted" because the point of the pre-filing conference
is to "mak[e] sure that when a Motion to Dismiss on this
kind of basis is filed, it is looking at a Final
Complaint." (Id. at 5:22-6:1.) When given the
opportunity during this conference to further discuss the
basis for the forthcoming motion to dismiss, Plaintiffs'
counsel declined, saying "I think we understand what
their motion will be. And we think we have satisfied any
questions they may have. And we will have when we file the
Amended Complaint." (Id. at 7:11-14.)
Plaintiffs argue that they are entitled, "because
justice so requires it," to further amend their
complaint to respond to the pleading deficiencies identified
in Defendant's Motion to Dismiss. (Pls.' Mem. at 4.)
Plaintiffs do not offer any argument which would explain why,
despite fully understanding the substance of Defendant's
anticipated Motion to Dismiss, already availing themselves of
the opportunity to amend the complaint, and the Court's
warning that "there will not be another chance to amend
further if the Motion to Dismiss is granted," they
should be given to another chance to amend to restore the
dismissed counts. They cite no new legal or factual
developments which would explain their decision not to
include in the Amended Complaint the facts which they now
seek to include in a further amended complaint. See
Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51,
62 (2d Cir. 2016) (upholding denial of leave to amend in
interest of judicial economy because, inter alia,
information plaintiffs sought to include in amended complaint
was available to them before motion to dismiss but brought to
court's attention only after court's ruling on motion
to dismiss). Moreover, contrary to Plaintiffs'
suggestion, the fact that little discovery has yet been
conducted does not indicate that no prejudice to Defendant
would result from further amendment. See Levin, 577
Fed.Appx. at 86 (finding the failure to seek to further amend
until after a motion to dismiss was fully briefed and decided
prejudicial to defendants).
absence of any explanation for their failure to include in
their Amended Complaint the information they now seek to
include in a further amended complaint, Plaintiffs'
Motion to Amend is denied. See McCabe v. ConAgra Foods,
Inc., 681 Fed.Appx. 82, 86 (2d Cir. 2017) (upholding
denial of leave to further amend where plaintiff already
amended once in response to specific information about the
nature of the complaint's deficiencies and where
plaintiffs counsel represented during a conference with the
court that he "'understood'... that his [first]
amended complaint would be his 'last pleading' based
on information available pre-discovery").
similarly fail to address the District of Connecticut Local
Rules' clear prescription that motions for
reconsideration "shall not be routinely filed,"
"shall satisfy the strict standard applicable to such
motions," and will "generally" be "denied
unless the movant can point to controlling decisions or data
that the court overlooked in the decision or order." D.
Conn. L. Civ. R. 7(c)(1). Moreover, motions for
reconsideration "seek[ing] solely to relitigate an issue
already decided" "should not be granted."
Shrader v. CSX Tramp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). Plaintiffs here make no attempt to identify
overlooked decisions or data. Instead, they repeat arguments
from their Opposition to Defendant's Motion to Dismiss
regarding the pleading requirements for product liability
claims, the adequate "notice" to Defendant of the
nature of Plaintiffs' claim, and the claimed basis of
their manufacturing theory claim. (See Pls.'
Mem. at 3; Pls.' Opp. to Def.'s Mot. to Dismiss [Doc.
# 40] at 2, 5, 8-9.) In the absence of any "controlling
decisions or data that the court overlooked" in its
Ruling on Defendant's Motion to Dismiss, Plaintiffs'
Motion to Reconsider is denied.
foregoing reasons, Plaintiffs Motion to Amend and/or