Lewis v. Ethicon Endo-Surgery, Inc. et al

Filing 8

ORDER Denying #6 Motion for Leave to File Amended Complaint. This case shall remain CLOSED. Signed by Judge Beth Bloom on 4/28/2021. See attached document for full details. (jbs)

Case 1:21-cv-21420-BB Document 8 Entered on FLSD Docket 04/28/2021 Page 1 of 3

§UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-21420-BLOOM/Otazo-Reyes
DALE LEWIS,
Plaintiff,
v.
ETHICON ENDO-SURGERY, INC.;
ETHICON ENDO-SURGERY, LLC;
JOHNSON & JOHNSON HEALTH
CARE SYSTEMS, INC.; and
JOHNSON & JOHNSON CONSUMER, INC.,
Defendant.
_______________________________________/
ORDER
THIS CAUSE is before the Court upon Plaintiff Dale Lewis’s (“Plaintiff”) Motion for
Leave to File Amended Complaint, ECF No. [6] (“Motion”), filed on April 27, 2021. The Court
has carefully reviewed the Motion, the proposed Amended Complaint, ECF No. [6-1] (“Amended
Complaint”), the record in this case, and the applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motion is denied.
Plaintiff initiated this action on April 14, 2021. See ECF No. [1]. On April 15, 2021, this
Court dismissed the above-styled case without prejudice because Plaintiff failed to sufficiently
allege diversity jurisdiction, and it permitted Plaintiff to file an amended complaint that properly
alleged jurisdiction by no later than April 22, 2021. ECF No. [4] at 3 (“Order of Dismissal”).
Specifically, the Court detailed why Plaintiff’s jurisdictional allegations were deficient, explaining
that in order to properly allege the citizenship of an unincorporated entity, such as Defendant
Ethicon Endo-Surgery, LLC, Plaintiff must specifically identify the members of the limited

Case 1:21-cv-21420-BB Document 8 Entered on FLSD Docket 04/28/2021 Page 2 of 3
Case No. 21-cv-21420-BLOOM/Otazo-Reyes
liability company and their respective citizenships. Id. (citing First Home Bank v. Net Zero LLC,
No. 3:20-cv-150-J-34MCR, 2020 WL 802518, at *2 (M.D. Fla. Feb. 18, 2020)). When Plaintiff
failed to file an amended complaint by April 22, 2021, the Court closed the case. ECF No. [5].
Plaintiff now files the instant Motion, requesting leave to file the Amended Complaint out of time
because counsel erroneously missed the deadline set by the Court in its Order of Dismissal.
Setting aside the question of whether good cause exists to permit Plaintiff to belatedly file
the Amended Complaint, a review of the proposed pleading reveals that the jurisdictional
allegations are yet again deficient. In particular, rather than allege Defendant Ethicon EndoSurgery, LLC’s members and respective citizenships, as the Order of Dismissal required, Plaintiff
has included the following allegation in his Amended Complaint instead:
At all times material, Defendant Ethicon Endo-Surgery, LLC,[n.2] is incorporated
in the State of Delaware and its principal place of business is located in Puerto Rico
and, per its Certificate of Authorization to do Business of a Foreign Corporation
filed with the Puerto Rico Registry of Corporations and Entities, lists its designated
office address in Puerto Rico as 475 Street C Los Frailes Industrial Park, Suite 401,
Guaynabo, PR 00969 and its Corporate Domicile as 1209 Orange Street,
Wilmington, DE 19801. . . .
[n.2] Notably, in a case pending in the United States District Court
for the Western District of Washington, involving the same surgical
stapler at issue in this case, the same Defendants were sued, and the
Ethicon and Johnson & Johnson Defendants stipulated that EthiconEndo Surgery, LLC is a manufacturer and seller of the surgical
stapler at issue and is a proper party to the lawsuit.
ECF No. [6-1] ¶ 2.3.
As the Court made clear in its Order of Dismissal, alleging a limited liability company’s
place of “incorporation”—rather than the requisite citizenship of each of the unincorporated
entity’s members—is insufficient for the purpose of establishing diversity jurisdiction. ECF No.
[4] at 3. Moreover, it is well established that, “[u]nder the law of this circuit, [] parties cannot
waive subject matter jurisdiction[.]” Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999).

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Case No. 21-cv-21420-BLOOM/Otazo-Reyes
Therefore, Plaintiff’s attempt to circumvent the need to adequately allege diversity jurisdiction in
footnote two is equally inadequate. As the Amended Complaint yet again fails to sufficiently allege
diversity jurisdiction, Plaintiff’s Motion is due to be denied.
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion, ECF No. [6],
is DENIED. This case shall remain CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, on April 28, 2021.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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