Hayes v. Wright Medical Technology, Inc. et al

Filing 27

ORDER Granting 25 Plaintiff's Motion For Leave to File A First Amended Complaint. Signed by Judge Cathy Ann Bencivengo on 12/28/2016. (dxj).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LESTER HAYES,

Case No.: 16-CV-1072-CAB-(WVC)
Plaintiff,

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v.

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ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
FIRST AMENDED COMPLAINT
[Doc. No. 25]

WRIGHT MEDICAL TECHNOLOGY,
INC., a Delaware corporation; and
WRIGHT MEDICAL GROUP, INC., a
Delaware corporation,

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Defendants.

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This matter is before the Court on Plaintiff’s motion for leave to file a first

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amended complaint. [Doc. No. 25.] For the reasons discussed below, the motion is

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GRANTED.

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I.

Background

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On May 3, 2016, Plaintiff filed this action alleging a variety of common law tort

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claims arising out of the failure of Defendants’ hip replacement device. [Doc. No. 1.]

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On October 7, 2016, this Court dismissed without prejudice the manufacturing

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defect, breach of implied warranty, fraudulent misrepresentation, fraudulent concealment,

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and negligent misrepresentation claims. [Doc. No. 15.] In that order, Plaintiff was given

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until October 21, 2016 to file an amended complaint consistent with the Court’s

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instructions. [Id.]
On October 21, 2016, Defendant Wright Medical Technology (“Wright”) filed its

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answer. [Doc. No. 19.]

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On November 19, 2016, Plaintiff sought leave to amend his complaint to add

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MicroPort as an additional defendant in this matter. [Doc. No. 25.] Defendant Wright

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has not opposed the motion.

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No scheduling order has been issued.
II.

Discussion
Plaintiff seeks leave to amend under Federal Rule of Civil Procedure 15(a), which

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states “[t]he court shall freely give when justice so requires.” Fed. R. Civ. P. 15(a)(2).

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Courts commonly use four factors to determine the propriety of a motion for leave to

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amend: bad faith, undue delay, prejudice to the opposing party, and futility of

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amendment. Ditto v. McCurdy, 510 F.3d 1070, 1078-79 (9th Cir. 2007); Loehr v.

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Ventura Cnty. Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984); Howey v. United

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States, 481 F.2d 1187, 1190 (9th Cir. 1973). “When weighing these factors . . . all

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inferences should be made in favor of granting the motion to amend.” Hofstetter v.

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Chase Home Fin., LLC, 751 F. Supp. 2d 1116, 1122 (N.D. Cal 2010) (citing Griggs v.

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Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999)).

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The Ninth Circuit has held that “it is the consideration of prejudice to the opposing

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party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003). “Absent prejudice, or a strong showing of any of the

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remaining Foman factors, there exists a presumption under Rule 15(a) in favor of

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granting leave to amend.” Id. The fact that Defendant did not oppose this motion

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supports the conclusion that there is no prejudice. Therefore, this factor weighs in favor

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of granting leave to amend.

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“[A] proposed amendment is futile only if no set of facts can be proved under the
amendment to the pleadings that would constitute a valid and sufficient claim or
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defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Futile

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amendments to a complaint should not be permitted. DCD Programs, Ltd. v. Leighton,

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833 F.2d 183, 188 (9th Cir. 1987) (citations omitted.). Here, the amended complaint

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alleges that when MicroPort acquired the OrthoRecon Division of Wright in 2014, it

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engaged in the manufacture, labeling, marketing, promotion, and distribution of the

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PROFEMUR® Total Hip System implanted in Plaintiff. [Doc. No. 25-2 ¶¶ 54, 57.]

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Further, it alleges that following the acquisition and prior to the failure of Plaintiff’s hip

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device, MicroPort became aware of issues surrounding the PROFEMUR® modular neck

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component.1 [Id. ¶¶ 56, 99, 104.] Additionally, it is alleged that despite knowing about

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the likelihood of failure, MicroPort did not warn of the potential danger for fracture until

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it issued a limited voluntary recall in August 2016, two months after the device implanted

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in Plaintiff failed. [Id. ¶¶ 55, 57.] At this early stage in the litigation, the Court cannot

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conclude that amendment of Plaintiff’s complaint to add MicroPort as a Defendant would

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be futile.

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Plaintiff has filed his motion approximately 6½ months after filing the original

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complaint, which weights in favor of granting the leave to amend. There is nothing in the

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record to suggest that the leave to amend is being sought in bad faith, therefore there is no

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cause to deny the leave to amend on this basis.

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III.

Conclusion

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Plaintiff’s motion for leave to file a first amended complaint is GRANTED. The

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Clerk SHALL DOCKET Exhibit A attached to Plaintiff’s motion for leave to file amended

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complaint [Doc. No. 25-2] as Plaintiff’s First Amended Complaint. Defendants

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//

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//

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//

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The PROFEMUR® Total Hip System is compromised of the PROFEMUR® modular neck component
and the PROFEMUR® stem component.
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shall respond to Plaintiff’s amended complaint within the limits established by the Federal

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Rules of Civil Procedure.

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IT IS SO ORDERED.
Dated: December 28, 2016

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