HAMEED v. COOK INCORPORATED, et al.

Filing 24

ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND - (22014) Motion for Leave to File a Second Amended Short Form Complaint is DENIED as both untimely and futile. See Order for details. Signed by Magistrate Judge Tim A. Baker on 7/8/2022. Associated Cases: 1:14-ml-02570-RLY-TAB, 1:17-cv-06059-RLY-TAB(LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DENNIS A. HUNTER, Jr.,
Plaintiff,
v.
COOK INCORPORATED,
COOK MEDICAL LLC,
WILLIAM COOK EUROPE APS,
Defendants.

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Case No. 1:14-ml-2570-RLY-TAB
MDL No. 2570

_____________________________________________
This Documents Relates Only to the Following Case:
Dennis A. Hunter, Jr.
As Administrator of the Estate of Servietta Hameed
1:17-6059-RLY-TAB

ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND
Plaintiff Dennis A. Hunter Jr. has filed a motion for leave to file a second amended short
form complaint. [Filing No. 22014.] This motion has drawn an objection—and resulted in some
very serious accusations that the Court addresses while tackling the substance of Plaintiff's
motion.
Plaintiff filed his motion for leave to amend for the stated reason of providing "more
evidence to support the express warranty claim in tandem to answer Defendant's Motion for
Summary Judgment on the pleadings." [Filing No. 22014, at ECF p. 1.] After the Cook
Defendants objected to Plaintiff's motion, Plaintiff's reply brief accused Cook of misconduct
including misstating issues before the Court, misrepresenting the timeline of this litigation, and
"hypocritically" ignoring Defendants' own "dilatory conduct." [Filing No. 22105, at ECF p. 1.]
Misstating and mispresenting issues to the Court, and engaging in dilatory conduct, are serious

matters. The Court was surprised and concerned by these accusations. Such misconduct, if true,
could result in sanctions. Accordingly, the Court asked Cook to respond with a surreply, which
Cook did. [Filing No. 22235.] As Cook's surreply makes abundantly clear, Plaintiff's allegations
are unfounded. Moreover, Plaintiff's motion for leave to amend is properly denied.
Plaintiff's reply in support of his motion to amend began its attack by taking Cook to task
for asserting Plaintiff's motion to amend is untimely. Plaintiff argued that Plaintiff's case is not a
bellwether case, so there are no scheduling orders in place with any deadlines that Plaintiff's
motion to amend violated. [Filing No. 22105, at ECF p. 1-2.] However, as Cook points out in
its surreply, the Court set a March 19, 2021,1 deadline for any Plaintiff to amend their short form
complaints and allege case-specific facts in support of fraudulent concealment on an individual
basis. [Filing No. 15907.] Thus, Cook was correct in stating Plaintiff's proposed amendment
concerning fraudulent concealment, filed May 16, 2022, missed the Court's deadline for such
amendments by more than 15 months.
Hundreds of plaintiffs amended their complaints by the Court's March 2021 deadline.
[See Filing No. 18315-2 (setting forth a chart of unique allegations in plaintiffs' Amended ShortForm complaints filed between February 22, 2021, and March 26, 2021).] However, Plaintiff
did not. Rather than acknowledging that Plaintiff missed this deadline, Plaintiff's reply brief
takes the offensive in arguing "Cook has repeatedly engaged in its own dilatory conduct and yet,
nevertheless, cries foul at every turn." [Filing No. 22105, at ECF p. 3.] A review of the facts
undermines Plaintiff's allegations. Cook filed its motion pursuant to Federal Rule of Civil
Procedure 12(c) and CMO-28. Under Rule 12(c), a party may move for judgment on the
pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” Fed. R. Civ. P.

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The Court later extended that deadline to March 26, 2021. [Filing No. 16249.]
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12(c). There is no trial date set in Plaintiff’s case. Accordingly, Cook's motion was not dilatory
or untimely under Rule 12(c). As for CMO-28, that order imposed a 60-day deadline (later
extended to January 12, 2021 [Filing No. 15326]) for plaintiffs to self-review their cases for
compliance with applicable statutes of limitations and/or repose. CMO-28 did not, however, set
a deadline for Cook to move to dismiss. On the contrary, CMO-28 provides that Cook may file a
motion after conclusion of the voluntary self-review process in any remaining case “if the Cook
Defendants wish to seek dismissal or judgment in the case they believe is barred by the statute of
limitations or statute of repose.” [Filing No 14601, at p. 2.]
Also missing the mark is Plaintiff's assertion that Cook misstated the issues before the
Court. Plaintiff's motion seeks leave to amend for the purposed reason of providing more
evidence to support an express warranty claim in response to Cook's summary judgment motion.
Cook objected on the grounds that Plaintiff's proposed amendments, while allegedly supporting
the express warranty and common law fraud claims, all rely on the same allegations of fraudulent
concealment, which still fail to state a viable claim. [Filing No. 22100, at ECF p. 4.] Plaintiff
counters by arguing that simply because his new allegations also support a fraudulent
concealment claim sufficient to toll the statute of limitations does not mean that these new
allegations cannot be raised to support other claims. [Filing No. 22105, at ECF p. 3.] Perhaps
so. But this does not support the serious allegation that Cook is misstating issues before the
Court.
On the contrary, the Court agrees with Cook that Plaintiff's proposed second amended
short form complaint asserts allegations of fraudulent concealment in support of a claim that
equitable estoppel barred the application of North Carolina’s statute of repose to Plaintiff’s
express warranty claim. Plaintiff’s attempt to invoke fraudulent concealment and equitable

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estoppel to avoid the North Carolina statute of repose is futile. This is so for two reasons. First,
the allegations still fail to meet the requirements of Fed. R. Civ. Rule 9(b). Second, under North
Carolina law, fraudulent concealment and related equitable doctrines apply only to the statute of
limitations, and do not prevent the running of the statute of repose. [Filing No. 22235, at ECF p.
2 (citing Filing No. 22154, at ECF p. 7 (collecting cases)).]
The closing paragraph of Cook's surreply aptly summarizes the situation at hand.
Ultimately, the accusations Plaintiff has raised obfuscate the actual issue before
the Court on Plaintiff’s motion for leave to amend: Plaintiff is not entitled to
another amendment as a matter of course, and he has failed to offer good cause
as to why he should be permitted to file the same kind of amendments as the
hundreds of Plaintiffs that filed those amendments in March 2021 in compliance
with the Court’s February 22, 2021 order, which applied globally to all cases. In
addition, the amendments Plaintiff offers would be futile in any event and would
not prevent dismissal based on the statute of repose.
[Filing No. 22235, at ECF p. 11.] Plaintiff's accusations are unfounded, and Plaintiff's
motion for leave to file a second amended short form complaint [Filing No. 22014] is denied as
both untimely and futile.
Date: 7/8/2022

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution to all registered counsel of record via CM/ECF.

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