Deleon et al v. Depuy Spine, LLC

Filing 16

ORDER granting 3 motion to dismiss. The Complaint (Doc. 2) is DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to file an Amended Complaint on or before Monday, December 11, 2017. Signed by Judge Roy B. Dalton, Jr. on 11/29/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DANIEL B. DELEON, SR.; and ELENA
DELEON,
Plaintiffs,
v.

Case No. 6:17-cv-1801-Orl-37TBS

DEPUY SPINE, LLC,
Defendant.
ORDER
This cause is before the Court on consideration of Defendant’s Motion to Dismiss
Plaintiffs’ Complaint (Doc. 3 (“MTD”)). On October 21, 2016, Plaintiffs Daniel B. DeLeon,
Sr. (“DeLeon”) and Elena DeLeon (“Spouse”) initiated this action against Defendant
DePuy Spine, LLC in the Circuit Court of the Ninth Judicial Circuit in and for Orange
County, Florida (“State Court”). (Doc. 2.) Alleging that DeLeon suffered grievous
physical injury after “undergoing an anterior cervical laminectomy . . ., in which
[defective] cervical plating components designed and manufactured by [Defendant] were
implanted in his spine,” Plaintiffs assert seven claims against Defendant for design and
manufacturing defects, failure to warn, negligence, gross negligence, breach of implied
warranty, and loss of consortium. (See id.)
After Plaintiffs perfected service of process on May 3, 2017 (Doc. 1-5, pp. 22, 25),
the Defendant filed the MTD. (Doc. 3.) Several months later, Defendant removed the
action to this Court (Doc. 1), and then filed an Amended Memorandum of Law in Support
-1-

of its MTD. (Doc. 6 (“Memo”).) Just before the deadline to file a response to the Memo,
Plaintiff requested leave to file an Amended Complaint to “correct alleged deficiencies.” 1
(Doc. 12 (“MTA”).) U.S. Magistrate Judge Thomas B. Smith denied the MTA without
prejudice because Plaintiff failed to comply with the requirements of Local Rule 3.01(g).
(Doc. 13.) Upon review, the Court finds that the MTD is due to be granted as unopposed.
Although this action has been pending for more than a year, the Court also finds that
Plaintiffs should be accorded the opportunity to amend their initial Complaint.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendant’s Motion to Dismiss Plaintiffs’ Complaint (Doc. 3) is
GRANTED.

2.

The Complaint (Doc. 2) is DISMISSED WITHOUT PREJUDICE.

3.

Plaintiff is granted leave to file an Amended Complaint on or before
Monday, December 11, 2017.

DONE AND ORDERED in Orlando, Florida, this 29th day of November, 2017.

Copies to:

Plaintiff did not file a response to the Memo or the MTD in this Court, and no
response to the MTD appears in the State Court record. (See Docs. 1-5, 1-6.)
1

-2-

Counsel of Record

-3-