WHITE v. ALLERGAN INC

Filing 12

ORDER granting 7 MOTION for Leave to File Amended Notice of Removal. Clerk directed to post from Doc. 7, Exhibit 4 w/Exhibit 2 as attachment. All deadlines in case are abated pending pending resolution of removal jurisdiction issue, other than Attorney Time Records. (Pla's Motion to Remand due by 11/16/2012.) Signed by SENIOR JUDGE MAURICE M PAUL on 10/19/2012. (jws)

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
LANDA WHITE,
Plaintiff,
v.

CASE NO. 1:12-cv-00206-MP-GRJ

TIMOTHY AARON HIPP, M.D.,
SURGICAL GROUP OF GAINESVILLE,
P.A., CENTER FOR OBESITY SURGERY
AND TREATMENT AT NORTH
FLORIDA REGIONAL MEDICAL
CENTER, NORTH FLORIDA
REGIONAL MEDICAL CENTER, INC.,
and ALLERGAN, INC.,
Defendant.
_____________________________/
ORDER
This matter is before the Court on the following motions: Docs. 5&6, defendant's motion
to dismiss and related motion for judicial notice; Doc. 7, defendant's Motion for Leave to File an
Amended Notice of Removal; Doc. 8, plaintiff's motion to remand; and Doc. 9, plaintiff's Motion
to Extend Time to File Response to the Motion to Dismiss.
This case began when the plaintiff filed a complaint in state court on July 12, 2012,
alleging medical malpractice claims against the healthcare defendants and various products
liability and consumer protection claims against Allergan. The claims involve the implantation
and management of a Lap-Band Adjustable Gastric Banding System device ("Lap-Band") which
was sold by Allergan and implanted and managed by the healthcare defendants. See attach. 2 to
Doc. 1. The plaintiff voluntarily dismissed the claims against the healthcare defendants on

Page 2 of 3

August 31, 2012, leaving only the non-Florida defendant, Allergan. Doc. 8, ¶ 3.1 Four days
later, September 4, 2012, the plaintiff filed an Amended Complaint in state court that was nearly
identical to the original complaint, which meant that it re-alleged the claims against the Florida
healthcare defendants. Doc. 8, ¶ 4.
In the meantime, however, defendant Allergan, unaware of the Amended Complaint,
filed a Notice of Removal on September 6, 2012, addressing only the original complaint from
which the Florida healthcare defendants had been voluntarily dismissed. The Notice noted that
once the Florida healthcare defendants were dismissed from the original complaint, complete
diversity appeared to exist between Allergan (the only remaining defendant as far as Allergan
knew at that time) and Ms. White, the plaintiff. Doc. 1. Allergan also moved to dismiss the
complaint and for judicial notice of certain items that supported its motion to dismiss. Docs. 5 &
6.
Eventually, Allergan became aware of the Amended Complaint, and on September 19,
2012, filed a Motion for Leave to File an Amended Notice of Removal. Doc. 7. A few days
later, and apparently unaware of defendant's motion to file an amended notice of removal, the
plaintiff moved to remand the case to state court. Doc. 8. The motion to remand only made
reference to the original Notice of Removal and did not specifically address the arguments
contained in the proposed Amended Notice of Removal. Plaintiff then moved for an extension
of time to respond to the motion to dismiss. Doc. 9. After that, Defendant responded to the
motion to remand, at Doc. 11.
As the above description reveals, there has been some confusion in the timing of the
1

The plaintiff does not explain exactly why the complaint against the healthcare
defendants was voluntarily dismissed, but does mention that the Complaint was "filed
prematurely during the pendency of the ninety (90) [day] pre-suit investigation" provided for by
Fla. Stat. § 766.104. Doc. 8, ¶2.
Case No: 1:12-cv-00206-MP-GRJ

Page 3 of 3

pleadings in this case. To ensure that the issues are fully addressed by the parties and considered
by the Court, and in the interests of justice, the Court will take the following housekeeping
measures. First, because the motions to dismiss and for judicial notice, Docs. 5 & 6, refer to an
original complaint which has now been amended, those motions are denied as moot, without
prejudice to the defendant raising those issues in a separate motion regarding the Amended
Complaint.2 The Amended Notice of Removal will be accepted, and so the motion to remand
currently pending will also be denied as moot without prejudice to plaintiff raising those issues
in a motion directed to the Amended Notice of Removal. Finally, as the Court has terminated
the currently pending motion to dismiss, the motion for extension of time to respond to it is
denied as moot. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Doc. 7, the Motion for Leave to File an Amended Notice of Removal, is granted,
and the Clerk is directed to enter the Amended Notice of Removal, found at
attach. 4 of Doc. 7, as its own docket entry. The Clerk is also directed to attach
Amended Complaint, attach. 2 of Doc. 7, to docket entry for the Amended Notice
of Removal.

2.

The plaintiff shall have until Friday, November 16, 2012, to file a motion to
remand.

3.

All deadlines in the case, including the deadline for filing a response to the
amended complaint, are abated pending the resolution of the removal jurisdiction
issue, other than the Summary of Attorney Time Records requirement from N.D.
Fla. Loc. R. 54.1.

DONE AND ORDERED this 19th day of October, 2012

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

2

In the interests of judicial economy, however, the defendant is free to simply incorporate
by reference the motions at Doc. 5 & 6 in a later pleading without fully restating the arguments
therein.
Case No: 1:12-cv-00206-MP-GRJ