Bailey et al v. B. Braun Medical Inc. et al
Filing
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OPINION AND ORDER. Plaintiffs' Motion for Leave to File Amended Complaint to Add "Braun S.A.S." as a Defendant 33 is GRANTED. The Clerk is DIRECTED to docket Plaintiffs' Proposed Amended Complaint [36.1] as the operative complaint in this action. Plaintiffs' Motion to Transfer Case to Southern District of Georgia 34 is DENIED. Defendants' Motion for Leave to File Surreply 45 is GRANTED. Signed by Judge William S. Duffey, Jr on 5/1/2017. (bgt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICHARD S. BAILEY, SR. and
SHARON BAILEY, a married
couple,
Plaintiffs,
v.
1:16-cv-1544-WSD
B. BRAUN MEDICAL INC., a
Pennsylvania corporation,
AESCULAP INCORPORATED, a
Pennsylvania Corporation,
AESCULAP IMPLANT SYSTEMS,
a Pennsylvania Corporation, B.
BRAUN INTERVENTIONAL
SYSTEMS, INC., a Delaware
Corporation, JOHN AND JANE
DOES I-X, BLACK AND WHITE
CORPORATIONS I-X,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiffs Richard S. Bailey, Sr. and
Sharon Bailey’s (together, “Plaintiffs”) Motion for Leave to File Amended
Complaint to Add “Braun S.A.S.” as a Defendant [33] (“Motion to Amend”).
Also before the Court is Plaintiffs’ Motion to Transfer Case to Southern District of
Georgia [34] (“Motion to Transfer”). Also before the Court is Defendants B.
Braun Medical Inc., Aesculap, Inc., Aesculap Implant Sytems, LLC, and B. Braun
Interventional Systems Inc.’s (collectively, “Defendants”) Motion for Leave to File
Surreply [45].
I.
BACKGROUND
This is a medical device products liability action stemming from the implant
of a B. Braun VenaTech filter in Plaintiff Richard Bailey’s inferior vena cava. On
April 13, 2016, Plaintiffs filed their Complaint in the State Court of Gwinnet
County, Georgia. ([1.1]). On May 12, 2016, Defendants filed their Notice of
Removal. ([1]).
On March 6, 2017, Plaintiffs filed their Motion to Amend, seeking to amend
their Complaint to add B. Braun Medical S.A.S. (“Braun S.A.S.”) as a defendant in
this action. Plaintiffs contend that, in November 2016, Defendants produced a
distributorship agreement identifying Braun S.A.S. as the party granting B. Braun
Interventional Systems, Inc.’s distribution rights for the filter at issue in this action.
Defendants argue that Plaintiffs’ motion is untimely and would unduly delay the
resolution of this case. Defendants also argue that the Court should deny
Plaintiffs’ motion because Braun S.A.S. is not subject to personal jurisdiction in
Georgia.
2
The same day, Plaintiffs filed their Motion to Transfer. Plaintiffs argue that
neither the Defendants nor any other witnesses to the case are residents of the
Northern District of Georgia, and causing the witnesses to travel hundreds of miles
for trial will impose a substantial inconvenience on them. Plaintiffs also argue that
Mr. Bailey is not in good health and should not have to bear the burden of traveling
hundreds of miles to the Northern District. Defendants contend that, by filing suit
in the Northern District, participating in discovery here, and waiting almost ten
months to move to transfer, Plaintiffs have waived any argument that the Southern
District of Georgia is a more convenient forum. On April 10, 2017, Defendants
filed their Motion for Leave to File Surreply, in which they present Mr. Bailey’s
deposition testimony showing that he travels long distances around Georgia many
times a month, mostly to attend Masonic meetings.1
II.
DISCUSSION
A.
Motion to Amend
Rule 15(a) of the Federal Rules of Civil Procedure allows a plaintiff to file
one amended complaint as a matter of course, if the amended complaint is filed
either within twenty-one (21) days of service of the original complaint or within
twenty-one (21) days of the defendant’s filing of a responsive pleading or Rule 12
1
Defendants’ Motion for Leave to File Surreply is granted.
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motion to dismiss. Fed. R. Civ. P. 15(a)(1). Amended complaints outside of these
time limits may be filed only “with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2).
“The decision whether to grant leave to amend a complaint is within the sole
discretion of the district court.” Laurie v. Ala Ct. of Criminal Appeals, 256 F.3d
1266, 1274 (11th Cir. 2001). Rule 15 of the Federal Rules of Civil Procedure
provides that “[t]he court should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). “There must be a substantial reason to deny a
motion to amend.” Laurie, 256 F.3d at 1274. “Substantial reasons justifying a
denial include ‘undue delay, bad faith, dilatory motive on the part of the movant,
. . . undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.’” Id. (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). The standard for deciding a motion for leave to add parties under
Rule 21 is the same as the standard under Rule 15(a). Loggerhead Turtle
v. County Council of Volusia County, Fla., 148 F.3d 1231, 1255 (11th Cir. 1998)
(internal quotation marks and citations omitted).
Plaintiffs contend that, in November 2016, Defendants produced a
distributorship agreement identifying Braun S.A.S. as the party granting B. Braun
Interventional Systems, Inc.’s distribution rights for the filter at issue in this action.
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Plaintiffs claim that, until they reviewed Defendants’ January 2017 production and
the parties met-and-conferred regarding it, they did not know that Defendants did
not have information regarding the filter design, testing, and manufacturing.
Plaintiffs further show that, after Plaintiffs filed their motion, Defendants’ counsel
took the position that the only entity that could answer questions about design,
development, and manufacture of the filter at issue is Braun S.A.S. Defendants
argue that Plaintiffs’ motion is untimely and would unduly delay the resolution of
this case. Defendants argue that Plaintiffs should have moved in November 2016
to add Braun S.A.S. Defendants also argue that the addition of Braun S.A.S. will
unduly delay the resolution of this case, because service would need to be made on
Braun S.A.S. under the Hague Convention, and then additional discovery will be
required.
The Court finds that Plaintiffs were not dilatory in filing their motion. It
appears Plaintiffs filed their motion within several weeks of learning that Braun
S.A.S. was the sole entity in possession of the information Plaintiffs seek, and
perhaps the sole entity responsible for the design, development, and manufacture
of the filter at issue. The Court also finds that the addition of Braun S.A.S. as a
party, while requiring additional time for service and discovery, will not unduly
delay this litigation. If Braun S.A.S. is not added, Plaintiffs represent they would
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seek leave to subpoena Braun S.A.S. for documents and Rule 30(b)(6) depositions
as a non-party, which also will be a lengthy process.
Defendants next argue that amendment would be futile, because Plaintiffs
cannot show the Braun S.A.S. is subject to personal jurisdiction in Georgia.2
“[C]urrent parties ‘unaffected by the proposed amendment’ do not have standing to
assert claims of futility on behalf of proposed defendants.” Custom Pak
Brokerage, LLC v. Dandrea Produce, Inc., No. CIV. 13-5592 NLH/AMD, 2014
WL 988829, at *2 (D.N.J. Feb. 27, 2014) (quoting Clark v. Hamilton Mortg. Co.,
No. 07-252, 2008 WL 919612, at *2 (W.D. Mich. Apr.2, 2008)). “Rather, current
parties only possess standing to challenge an amended pleading directed to
proposed new parties on the basis of undue delay and/or prejudice.” Id. (citing
Nat’l Indep. Theatre Exhibitors, Inc. v. Charter Fin. Grp., Inc., 747 F.2d 1396,
1404 (11th Cir. 1984)). Accordingly, Defendants lack standing to challenge the
proposed amendment on the grounds of futility. The Court finds Defendants fail to
show undue delay, bad faith, or dilatory motive, and Plaintiffs’ Motion to Amend
is granted.
2
Counsel for Defendants state that they do not represent Braun S.A.S., and
they are not authorized to speak on its behalf. ([41] at 2 n.2).
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B.
Motion to Transfer
Plaintiffs seek to transfer this action to the Southern District of Georgia.
Defendants contend that, by filing suit in the Northern District, participating in
discovery here, and waiting almost ten months to move to transfer, Plaintiffs have
waived any argument that the Southern District of Georgia is a more convenient
forum. The Court disagrees. Federal Rule of Civil Procedure 12(h) provides that a
“party waives any defense listed in Rule 12(b)(2)-(5) by” failing to raise it in a
previous motion to dismiss or a responsive pleading. Fed. R. Civ. P. 12(h)(1).
Plaintiffs, however, do not seek dismissal for improper venue under Rule 12(b)(3).
Plaintiffs seek transfer under 28 U.S.C. § 1404(a). The cases Defendants rely upon
do not apply here, and Plaintiffs have not waived their right to file a Section
1404(a) motion. See Great Socialist People’s Libyan Arab Jamahiriya v. Miski,
496 F. Supp. 2d 137, 140 n.3 (D.D.C. 2007) (“[A] motion to transfer may be made
at any time after the initiation of an action under [Section] 1404(a).”).
The Court thus turns to the merits of Plaintiffs’ Motion to Transfer. A
district court may transfer an action to another district, where the case could have
been brought originally, “[f]or the convenience of parties and witnesses, in the
interest of justice . . . .” 28 U.S.C. § 1404(a). See generally Van Dusen
v. Barrack, 376 U.S. 612, 616 (1964) (holding that the purpose of Section 1404(a)
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is “to prevent the waste of time, energy and money and to protect litigants,
witnesses and the public against unnecessary inconvenience and expense” (internal
quotation marks omitted)).3 The party seeking transfer of an action bears the
burden of establishing that the balance of Section 1404(a) interests favors transfer.
In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989).4 The decision to transfer a
case under Section 1404(a) rests within the Court’s sound discretion. See
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996) (reviewing
district court’s transfer of venue for “clear abuse of discretion”).
Plaintiffs note that they originally filed their lawsuit in state court in this
district because of its proximity to Atlanta and its airport. Plaintiffs expected the
majority of witnesses to be out-of-state experts. On January 18, 2017, Defendants
indicated that they seek to depose eleven treating physicians, nearly all of whom
reside in the Southern District. Plaintiffs argue that neither the Defendants nor any
3
Defendants do not contest that this action could have been brought originally
in the Southern District of Georgia.
4
A district court may consider several factors in evaluating a motion to
transfer, among them: (1) the convenience of the witnesses; (2) the location of
relevant documents and the relative ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of operative facts; (5) the availability of
process to compel the attendance of unwilling witnesses; (6) the relative means of
the parties; (7) a forum’s familiarity with the governing law; (8) the weight
accorded a plaintiff’s choice of forum; and (9) trial efficiency and the interests of
justice, based on the totality of the circumstances. Manuel v. Convergys Corp.,
430 F.3d 1132, 1135 & n.1 (11th Cir. 2005).
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other witnesses in this case are residents of the Northern District of Georgia, and
causing the witnesses to travel hundreds of miles for trial will impose a substantial
inconvenience on them. Plaintiffs note that the majority of the events giving rise to
Plaintiffs’ claims occurred in the Southern District. Plaintiffs also argue that
Mr. Bailey is not in good health and should not have to bear the burden of traveling
hundreds of miles to the Northern District.
“The primary focus of a venue inquiry is the convenience of litigants and
witnesses, although it is more concerned with the litigant who has not chosen the
forum than with the litigant who has . . . .” Bond Safeguard Ins. Co. v. Ward, No.
1:09-cv-0093-WSD, 2009 WL 1370935, at *4 (N.D. Ga. May 14, 2009) (quoting
Wright, Miller & Cooper, Federal Practice and Procedure 14D, 3d ed. § 3801).
Here, Plaintiffs chose to file suit in Gwinnett County, located in the Northern
District of Georgia. Defendants show that the Northern District of Georgia is
much more convenient for Defendants, because each of their principal places of
business are out-of-state, and none of them conduct business in the Southern
District. Both Plaintiffs and Defendants have hired counsel located in Atlanta.
Regarding the treating physician witnesses, Defendants note that their depositions
will be conducted in the Southern District regardless of whether this action is
transferred there. Defendants note that they do not yet know which witnesses will
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be called at trial. Defendants also note that several witnesses live in Pennsylvania,
and it would be much easier for these witnesses to travel to Atlanta than to the
Southern District.
Regarding Mr. Bailey’s claims that he is not in good health and should not
have to travel to the Northern District, the Court first notes that Plaintiffs chose to
file suit in this district. Defendants also present Mr. Bailey’s deposition testimony
showing that he travels long distances around Georgia many times a month, mostly
to attend Masonic meetings. That Mr. Bailey is able to travel many times a month
for voluntary events undercuts Plaintiffs’ claims. The Court finds that the
convenience of the parties tips slightly in favor of Defendants, and the convenience
of the witnesses is a neutral factors. The Court also finds that the interests of
justice is a neutral factor.
Plaintiffs fail to meet their burden to show that the balance of
Section 1404(a) interests favors transfer. Plaintiffs’ Motion to Transfer is denied.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to File
Amended Complaint to Add “Braun S.A.S.” as a Defendant [33] is GRANTED.
The Clerk is DIRECTED to docket Plaintiffs’ Proposed Amended Complaint
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[36.1] as the operative complaint in this action.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Transfer Case to
Southern District of Georgia [34] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File
Surreply [45] is GRANTED.
SO ORDERED this 1st day of May, 2017.
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