Morris v. AngioDynamics, Inc. et al

Filing 36

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1. Defendants' Partial Motion to Dismiss (Doc. 30 ) is GRANTED. 2. Counts Three, Four, Five, Six, Seven, and Eight of Plaintiff's First Amended Complaint are DISMISSED. Counts One and Two shall proceed, as further set out in the Order. Signed by Honorable Judge R. Austin Huffaker, Jr. on 02/07/2024. (GGN)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES MORRIS,
Plaintiff,
v.
ANGIODYNAMICS, INC., et al.,
Defendants.

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) CASE NO. 1:23-cv-00294-RAH
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[WO]
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)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Pending before the Court is the Defendants’ Partial Motion to Dismiss. (Doc.
30.) With the motion having been fully briefed and thus ripe for decision, the motion
is due to be GRANTED.
II. FACTS AND PROCEDURAL HISTORY
Construing the factual allegations in the First Amended Complaint as true, as
the Court must at this procedural stage, the facts giving rise to this lawsuit are as
follows:
On or about December 30, 2020, Plaintiff James Morris was implanted with
Defendant AngioDynamics’s SmartPort CT Titanium Port (SmartPort), a vascular
access device used during chemotherapy. (Doc. 26 at ¶ 37.) The device was
manufactured, sold, and/or distributed by the Defendants to Morris, “through his
doctors.” (Id. at ¶ 40.) The device was cleared by the Food and Drug Administration
for marketing and sale in 2007. (Id. at ¶ 9.)
On May 3, 2021, Morris was diagnosed with a bilateral pulmonary embolism
and a “left internal jugular and subclavian deep venous thrombosis with indwelling
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Infuse-A-Port.” (Id. at ¶¶ 42–44.) Morris’s SmartPort was then surgically removed
where it was noted that the port was clotted. (Id. at ¶¶ 46–47.)
Morris’s experience with the SmartPort device was not unique to him because,
after the SmartPort device was brought to market, Defendants received large
numbers of adverse event reports from healthcare providers reporting that the
SmartPort, once implanted, “was facilitating and otherwise substantially increasing
risks of the development of SmartPort-related thrombus or thrombi.” (Id. at ¶ 29.)
In this suit, Morris brings eight causes of action against the Defendants
concerning his SmartPort: (1) a violation of the Alabama Extended Manufacturer’s
Liability Doctrine (AEMLD); (2) Negligence and Wantonness; (3) Breach of
Express Warranty; (4) Breach of the Implied Warranty of Merchantability; (5)
Breach of the Implied Warranty of Fitness for a Particular Purpose; (6) Negligent
Misrepresentation; (7) Fraudulent Misrepresentation; and (8) Fraudulent
Concealment/Suppression. Defendants seek dismissal of Counts Three through
Eight for failure to state a claim upon which relief can be granted. They do not seek
dismissal of the counts for negligence, wantonness, or a violation of the AEMLD.
III. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint
against the legal standard set forth in Rule 8: “a short plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679 (citation omitted). The plausibility
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standard requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678. Conclusory allegations that are merely “conceivable” and
fail to rise “above the speculative level” are insufficient to meet the plausibility
standard. Twombly, 550 U.S. at 555, 570. This pleading standard “does not require
‘detailed factual allegation,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Indeed, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
causation of action will not do.’” Id.
“To decide whether a complaint survives a motion to dismiss, [district courts]
use a two-step framework.” McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir.
2018). “A district court considering a motion to dismiss shall begin by identifying
conclusory allegation that are not entitled to an assumption of the truth—legal
conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d
701, 709–10 (11th Cir. 2010). “Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. Here, Morris
“bear[s] the burden of setting forth facts that entitle [him] to relief.” Worthy v. City
of Phenix City, 930 F.3d 1206, 1222 (11th Cir. 2019).
IV. DISCUSSION
A. Warranty Claims
Counts Three, Four, and Five of the First Amended Complaint are founded
upon alleged breaches of warranty—an express warranty, the implied warranty of
merchantability, and the implied warranty of fitness for a particular purpose.
Defendants argue that these three claims are due to be dismissed because pre-suit
notice is required under Alabama law and Morris has failed to adequately plead such
notice. Defendants also argue that the implied warranty claims are not viable under
Alabama law and that Morris did not adequately plead his express warranty claim.
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1. Pre-Suit Notice
Under Alabama law, pre-suit notice to a seller is a necessary precondition to
filing a warranty claim, express or implied. See Ala. Code § 7-2-607(3)(a) (“Where
a tender has been accepted: (a) [t]he buyer must within a reasonable time after he
discovers or should have discovered any breach[,] notify the seller of breach or be
barred from any remedy[.]”); Parker v. Bell Ford, Inc., 425 So. 2d 1101, 1102 (Ala.
1983) (“This court, on several occasions, has characterized notice, such as required
by § 7-2-607, as a condition precedent to recovery.”). Morris concedes in his
responsive briefing that this pre-suit notice is “necessary for a claim of breach of
warranty.” (Doc. 34 at 11.) This notice “must be affirmatively pleaded in the
complaint” and “with some degree of specificity.” Lindsey v. Int’l Shoe Co., 233
So. 2d 507, 508–09 (Ala. Civ. App. 1970); Hart v. Yamaha-Parts Distribs., Inc., 787
F.2d 1468, 1474 (11th Cir. 1986). Pre-suit notice is required to pursue both express
and implied warranty breach claims. Harman v. Taurus Int’l Mfg., Inc., 586 F. Supp.
3d 1155, 1163 (M.D. Ala. 2022); Smith v. Apple, Inc., No. 08-AR-1498-S, 2009 WL
3958096, at *1 (N.D. Ala. Nov. 4, 2009) (“There is no distinction between implied
warranties and express warranties insofar as this precondition is concerned.”).
Here, Morris addresses notice in his First Amended Complaint as follows:
“[u]pon information and belief, Plaintiff or Plaintiff’s health care providers, i.e.,
Plaintiff’s purchasing agents as it concerned the process of buying the SmartPort in
question, provided a pre-suit notice to Defendants concerning the breach of implied
warranty.” (Doc. 26 at ¶ 89.) This broad, conclusory statement is insufficient, as
Morris does not state who gave pre-suit notice, let alone when, how, and to whom
exactly notice was given. Simply put, Morris’s notice allegation lacks any factual
basis in fact or specificity to avoid dismissal. While specificity to the level of Rule
9(b) is not necessary, “some degree of specificity” is required. Lindsey, 233 So. 2d
at 509. And Morris has not provided it. See Smith, 2009 WL 3958096 at *1
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(dismissing a warranty claim where no notice was alleged); Harman, 586 F. Supp.
at 1163 (dismissing a warranty claim where no notice was alleged); Lowery v.
Sanofi-Aventis, 535 F. Supp. 3d 1157, 1175 (N.D. Ala. 2021) (dismissing an implied
warranty claim where no notice was alleged).
And that is probably so because Morris has no knowledge, personally or
otherwise, that any pre-suit notice was ever provided to any of the Defendants or
anyone else for that matter. Morris’s response underscores that observation. In his
response, Morris states that “[t]he discovery process will provide information on this
issue in due course.” (Doc. 34 at 11.) While it is true that discovery could shed
more light on whether pre-suit notice was given by others, discovery certainly is not
necessary as to Morris himself, who already would be armed with that information.
Regardless, discovery follows “the filing of a well-pleaded complaint. It is not a
device to enable the plaintiff to make a case when his complaint has failed to state a
claim.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997)
(citation omitted). As the Supreme Court has noted, “the doors of discovery” do not
unlock “for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S.
at 678–79.
Since the First Amended Complaint lacks “some degree” of specificity or
factual basis concerning pre-suit notice and since Morris all but admits that he lacks
any factual basis that such notice was actually provided, Counts Three, Four, and
Five are due to be dismissed for failure to state a claim.
2. Express Warranty Claim
But even if Morris did adequately plead notice, he also did not adequately
plead his express warranty claim. Under Alabama law, express warranties are
created by “[a]ny affirmation of fact or promises made by the seller to the buyer
which relates to the goods and becomes part of the basis of the bargain,” or “[a]ny
description of the goods which is made part of the basis of the bargain.” Ala. Code
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§ 7-2-313. Morris alleges that “Defendants . . . expressly warranted that the
SmartPort at issue was safe and fit for use by consumers, was of merchantable
quality, did not produce dangerous and life-threatening adverse events, and was
adequately tested and fit for its intended use.” (Doc. 26 at ¶ 75.) These allegations
read more like assertions of the pleading requirements for implied warranty claims
than they do for an actual express warranty made by a seller or manufacturer.
Regardless, Morris does not plead where or how he received these alleged
affirmations, merely that he did.

He alleges no facts that the Defendants

communicated these affirmations to Morris directly. See Emody v. Medtronic, Inc.,
238 F. Supp. 2d 1291, 1296 (N.D. Ala. 2003).
But even if the Court construed the Defendants’ Indications for Use (IFU) as
a “description of goods” which creates an express warranty, that description cannot
be construed as an express warranty of safeness. See Blackburn v. Shire US, Inc.,
No. 2:16-cv-963-RDP, 2017 WL 1833524, at *9 (N.D. Ala. May 8, 2017), rev’d on
other grounds, No. 20-12258, 2022 WL 16729466 (11th Cir. Nov. 7, 2022).
Nowhere in its IFU does Defendant AngioDynamics warrant that the SmartPort is
“safe,” as it merely provides warnings and possible complications.1 To the contrary,
AngioDynamics’ IFU represents that the device is intended to be used to deliver
medication, imaging contrast, and other fluids, through repeated vascular access, and
that its use may cause a number of potential risks, including clot formation.

1

Despite the defunct link provided in Morris’s First Amended Complaint (doc. 26 at ¶ 13), the
Court has located the Indications for Use quoted in Morris’s FAC at
https://www.angiodynamics.com/about-us/risk-information/ along with warnings and possible
complications associated with Defendants’ SmartPort device. The Court may use this document,
at this proceeding, without converting this motion to dismiss into a motion for summary judgment
because the document was “referred to in the complaint, central to the plaintiff’s claim, and of
undisputed authenticity.” Hi-Tech Pharm., Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1189 (11th Cir.
2018).
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Moreover, Morris cannot claim, and does not do so in his First Amended
Complaint, that his physician expressly warranted the SmartPort’s safety to him.
Under Alabama law, a physician acts “as a learned intermediary between a drug [or
device] manufacturer and a patient” because the physician “stands in the best
position to evaluate a patient’s needs and to assess the risks and benefits of a
particular course of treatment for the patient.” Tutwiler v. Sandoz, Inc., 726 F. App’x
753, 756 (11th Cir. 2018) (per curiam). Therefore, a drug or medical device
manufacturer’s duty to warn—through its product’s label or IFU—“is limited to the
obligation to advise the prescribing physician of any potential dangers that may
result from the use of the drug [or device].” Bodie v. Purdue Pharma Co., 236 F.
App’x 511, 519 (11th Cir. 2007) (emphasis omitted); see also Tutwiler, 726 F. App’x
at 756; Grubbs v. Medtronic, Inc., No. 2:18-cv-1468-AKK, 2019 WL 3288263, at
*3 n.3 (N.D. Ala. July 22, 2019) (“Alabama has adopted the learned-intermediary
doctrine, meaning that a prescription medical device manufacturer’s duty to warn
extends to physicians.”). In short, any affirmation in the IFU was made to the
implanting physician, not Morris. And his express warranty claim is due to be
dismissed for the reasons listed above.
3. Implied Warranty Claims
Counts Four and Five are claims for breaches of the implied warranties of
merchantability and fitness for a particular purpose, respectively. Defendants argue
that these claims are not viable under Alabama law and are due to be dismissed for
this additional reason.
These two implied warranties are governed by specific provisions in
Alabama’s Commercial Code. See Ala. Code § 7-2-314 (merchantability); id. § 72-315 (fitness for particular purpose). “In general, Alabama law does not recognize
a cause of action for breach of implied warranty of merchantability for inherently
dangerous products.” Barnhill v. Teva Pharm. USA, Inc., 819 F. Supp. 2d 1254,
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1263–64 (S.D. Ala. 2011) (holding that a prescription drug was presumed to be
merchantable and fit for its intended use and dismissing implied-warranty claims
because plaintiff provided no evidence to support her claim that the prescription drug
was not fit). Courts have applied this rule in medical device cases. See Houston v.
Bayer Healthcare Pharm., Inc., 16 F. Supp. 3d 1341, 1346–47 (N.D. Ala. 2014)
(holding that plaintiff failed to state a claim for breach of implied warranty of
merchantability when she alleged that an intrauterine birth control device caused
unreasonable danger, not that the device failed to achieve its intended function).
Here, Morris alleges mental and physical pain and suffering, permanent
injury, permanent and substantial physical deformity, and that he underwent
corrective surgeries, which are all related to an alleged clinical risk of the medical
device, not whether it achieved its intended function. (Doc. 26 at ¶ 54.) Morris
attempts to allege that the device did not function as intended because it prevented
him from repeatedly receiving chemotherapy (see doc. 26 at ¶¶ 87, 96), but
underlying this is Morris’s belief that the SmartPort was dangerous and caused him
harm. The fact that these alleged harmful consequences required the removal of the
device, which incidentally prevented his doctors from administering chemotherapy
through the device, does not mean the device is not fit for its intended use. See West
v. Janssen Pharm., Inc., No. 2:15-cv-553, 2018 WL 1977258, at *13 (M.D. Ala.
Apr. 4, 2018) (“The mere presence of harmful consequences which may result from
appropriate use will not render a product unfit for purposes of a claim for breach of
implied warranty of merchantability.”); Collins v. Novartis Pharm. Corp., No. 2:08cv-438-MHT-PWG, 2015 WL 178157, at *7 (M.D. Ala. Jan. 14, 2015), report and
recommendation adopted in part, 2015 WL 2183700 (M.D. Ala. May 11, 2015)
(“[I]f the product does what it is supposed to, that product is presumed merchantable
even if there are also substantial risks connected with the use of that product.”); Shell
v. Union Oil Co., 489 So. 2d 569, 572 (Ala. 1986) (“[T]he U.C.C. does not impose
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upon the seller the broader obligation to warrant against health hazards in the use of
the product when the warranty of commercial fitness has been complied with.”). In
fact, the First Amended Complaint provides that the device functioned as intended
from implantation in December 2020 until May 5, 2021, following its removal.
(Doc. 26 at ¶¶ 37, 44.) And Morris has not alleged that the SmartPort, prior to the
development of a known side effect, was not functioning as intended.
The product at issue in this case, the SmartPort device, has a clear function
other than consumption. It is used for “repeated access of the vascular system for
delivery of medication, nutritional supplementation, fluid, blood, blood products,
sampling of blood and power injection of contrast media for imaging.” (Doc. 26 at
¶ 13.) The implied warranty is therefore not breached unless the SmartPort device
failed to achieve this function, regardless of what other harms it caused. That does
not mean, of course, that a catheter device manufacturer can produce a device with
unlimited danger so long as the device actually administers drugs vascularly, which
it did here for five months. It simply means that these dangers must be addressed by
claims under tort theories such as the AEMLD, rather than under the Commercial
Code. Because the only SmartPort defect that Morris alleges in this case is that it
caused complications with venous thrombosis and pulmonary embolism, Morris has
not stated a claim for breach of implied warranty, and those counts are due to be
dismissed.
B. Fraud-based Claims
Counts Six, Seven, and Eight are fraud-based claims for misrepresentation
and suppression. Defendants argue these claims do not meet the heightened pleading
requirements of Federal Rule of Civil Procedure 9(b) and should therefore be
dismissed.
Fraud-based claims, including misrepresentation and suppression, are subject
to a heightened pleading standard under Rule 9. See Fed. R. Civ. P. 9(b) (“a party
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must state with particularity the circumstances constituting fraud”); Ziemba v.
Cascade Int’l, Inc., 256 F. 3d 1194, 1202 (11th Cir. 2001). When a fraud-based
claim is alleged, Rule 9(b) “requires a complaint to set forth: (1) precisely what
statements or omissions were made in which documents or oral representations; (2)
the time and place of each such statement and the person responsible for making (or,
in the case of omissions, not making) them; (3) the content of such statements and
the manner in which they mislead the plaintiff, and; (4) what the defendant obtained
as a consequence of fraud.” In re Galectin Therapeutics, Inc. Sec. Litig., 843 F.3d
1257, 1269 (11th Cir. 2016) (citing Garfield v. NDC Health Corp., 466 F.3d 1255,
1262 (11th Cir. 2006)); Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d
1364, 1371 (11th Cir. 1997) (per curiam).
Both of Morris’s misrepresentation claims contain similar allegations—that
the Defendants (1) represented through labeling, advertising, marketing materials,
and other similar documents, that the SmartPort had been tested and was safe to
administer chemotherapy medication; and that (2) the SmartPort “was safer and/or
more effective than other port/catheter systems.” (Doc. 26 at ¶ 101; see id. at ¶ 106.)
And as to his fraudulent suppression claim, that the Defendants (1) “fraudulently,
intentionally and/or negligently concealed or failed to disclose material facts about
the SmartPort at issue as it related to the SmartPort-associated serious and lifethreatening adverse events,” (2) concealed or failed to disclose adverse information
that Defendants knew or should have known regarding SmartPort defects and
dangers, and (3) purposely concealed this information so Morris would agree to be
implanted with the device. (Id. at ¶¶ 114–16.) None of these allegations contain the
requisite information required by Rule 9(b). See In re Galectin Therapeutics, Inc.,
843 F.3d at 1269.
Morris claims that he has adequately pleaded the “who, what, where, when,
and how” of the alleged fraud and further argues that his First Amended Complaint
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is sufficient due to the “complexity” of the allegations. (Doc. 34 at 12–14, citing
Payne v. United States, 247 F.2d 481, 486 (8th Cir. 1957).) In doing so, Morris also
attempts to distinguish the factual circumstances present in In re Galectin
Therapeutic, 843 F.3d 1257, and Am. Dental Ass’n v. Cigna Corp, 605 F.3d 1283
(11th Cir. 2010), cited as supporting precedent for the Defendants’ position, from
Morris’s own fraud-based allegations.
It is true, as Morris argues, that In re Galectin Therapeutics and Am. Dental
Ass’n dealt with S.E.C. Rule 10b-5(b) and RICO charges, respectively. However,
nothing in these opinions relieves Morris of his obligation under Rule 9(b) to plead
the time and place of the fraudulent statements, the content of the statements, or what
documents he relied on to induce him to agree to implantation of the device. See
Garfield, 466 F.3d at 1262. As a result, Count Six, negligent misrepresentation, and
Count Seven, fraudulent misrepresentation, are due to be dismissed for Morris’s
failure to meet the heightened pleading standards of Rule 9(b).
Fraudulent suppression is a different type of fraud claim. Under Alabama
law, the “[s]uppression of a material fact which the party is under an obligation to
communicate constitutes fraud. The obligation to communicate may arise from the
confidential relation of the parties or from the particular circumstances of the case.”
Ala. Code § 6-5-102. To state a claim, Morris must establish, “(1) that [Defendants]
had a duty to disclose [the] material existing fact; (2) that [Defendants] suppressed
this material fact; (3) that [Defendants’] suppression of this fact induced [them] to
act or to refrain from acting; and (4) that [they] suffered actual damage as a
proximate result.” Pearson’s Pharmacy, Inc v. Express Scripts, Inc., 505 F. Supp.
2d 1272, 1277–78 (M.D. Ala. 2007) (quoting State Farm Fire & Cas. Co. v. Owen,
729 So. 2d 834, 837 (Ala. 1998)). “A duty to speak depends on the relation of the
parties, the value of the particular fact, the relative knowledge of the parties, and
other circumstances.” Id. at 1278 (quoting Deupree v. Butner, 522 So. 2d 242, 245
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(Ala. 1988)). “When the parties to a transaction deal with each other at arm’s length,
with no confidential relationship, no obligation to disclose information arises when
the information is not requested.” Id. (quoting Mason v. Chrysler Corp., 653 So. 2d
951, 954–55 (Ala. 1995)).
Here, Morris alleges that “Defendants had a duty to disclose to healthcare
providers . . . material facts about the SmartPort at issue as it related to the SmartPortassociated serious and life-threatening adverse events.” (Doc. 25 at ¶ 113.) Notably
absent from Morris’s First Amended Complaint are allegations that he made a direct
inquiry to the Defendants or factual allegations suggesting the existence of a
confidential or special relationship with the Defendants that would give rise to a duty
by the Defendants to affirmatively disclose certain facts to him absent an inquiry.
Pearson’s Pharmacy, 505 F. Supp. 3d at 1278. As such, his fraudulent suppression
claim is due to be dismissed.
Morris’s fraud-based claims are not novel issues, as courts within this Circuit
routinely dismiss fraud-based claims involving medical devices when the complaint
does not plead the claims with sufficient particularity. See Holland v. Ethicon, Inc.,
No. 2:19-cv-787-WKW, 2021 WL 3432833, at *2 (M.D. Ala. Aug. 5, 2021)
(dismissing misrepresentation claims in a medical device case for failure to meet the
pleading standard where plaintiff did not allege the precise misrepresentations made,
nor the time, place and person responsible for those misrepresentations); Am. Dental
Ass’n, 605 F.3d at 1291; Grubbs, 2019 WL 3288263, at *5 (dismissing
misrepresentation claim in a medical device case where plaintiff included only
general allegations and failed to identify which documents contained those
misrepresentations, finding the complaint “falls shorts of stating the precise
statements made, or the time and place of the alleged misrepresentations”); Cline v.
Advanced Neuromodulation Sys., Inc., 17 F. Supp. 3d 1275, 1287–88 (N.D. Ga.
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2014) (dismissing fraud and misrepresentation claims that did not plausibly
demonstrate justifiable reliance under Rule 9(b)).
And here, Morris’s fraud-based claims are rife with “the-defendantunlawfully-harmed-me accusation[s],” Iqbal, 556 U.S. at 678, and only conclusory
statements. (Doc. 26 at ¶¶ 100–22.) These allegations do not even pass the standard
under Rule 8, much less the heightened pleading standard of Rule 9. Therefore,
Counts Six, Seven, and Eight are due to be dismissed for failure to state a claim.
C. Morris’s Request To File An Amended Complaint
Morris argues in his response that he should be given leave to file a Second
Amended Complaint if the Court finds his current operative complaint deficient. It
is true that Federal Rule of Civil Procedure 15(a) states that leave to amend “shall
be freely given when justice so requires” and that trial courts have broad discretion
in permitting or refusing to grant leave to amend. Forman v. Davis, 371 U.S. 178,
182 (1962). Leave should be “freely given” when:
In the absence of any apparent or declared reason—such
as 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.—the leave sought should, as
the rules require, be ‘freely given.’
Id.

Defendants counter by pointing out that Morris previously amended his

complaint after Defendants filed a motion to dismiss and that this First Amended
Complaint only contains minor changes, none of which cured the deficiencies of the
original Complaint.
The Court is under no obligation to allow Morris to amend his complaint for
a second time to “cure deficiencies by amendments previously allowed[,]” especially
through an embedded request not made by formal motion, and the Court will not
allow it now. Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 F. App’x
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925, 930 (11th Cir. 2016) (per curiam) (holding that the district court did not abuse
its discretion when it dismissed a complaint with prejudice after the plaintiff already
had a chance to amend its complaint).
V. CONCLUSION
Accordingly, it is ORDERED as follows:
1.

Defendants’ Partial Motion to Dismiss (Doc. 30) is GRANTED.

2.

Counts Three, Four, Five, Six, Seven, and Eight of Plaintiff’s First

Amended Complaint are DISMISSED. Counts One and Two shall proceed.
DONE on this the 7th day of February 2024.

R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE

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