Murphy v. Boston Scientific Corporation

Filing 36

RULING AND ORDER: Plaintiff's 32 Objection to Report and Recommendations is OVERRULED IN PART and SUSTAINED IN PART. Plaintiff's objection is SUSTAINED in that plaintiff shall have 28 days to amend the operative complaint to cure the deficiencies therein. Failure to do so will result in the dismissal of his claims with prejudice. In all other respect, Plaintiff's objection is OVERRULED, and the Court adopts the 30 Report and Recommendation. Signed by Judge John W. deGravelles on 11/19/2018. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL MURPHY
CIVIL ACTION
VERSUS
NO. 18-31-JWD-EWD
BOSTON SCIENTIFIC CORPORATION
RULING AND ORDER
This matter comes before the Court on the Plaintiff, Michael Murphy’s, Objection to
Report and Recommendation of the Magistrate Judge (Doc. 32), filed in response to the
Magistrate Judge’s Report and Recommendation (Doc. 30) (“Recommendation”). Defendant
Boston Scientific Corporation opposes the objection (Doc. 35). Oral argument is not necessary.
The Court has carefully considered the law, the facts in the record, and the arguments and
submissions of the parties and is prepared to rule.
For the following reasons, the Plaintiff’s objection is overruled in part and sustained in
part. Preliminarily, the Court finds that a motion to amend involving a potentially futile
amendment is a dispositive matter. (See Recommendation, Doc. 30 at 2 n. 3 (citing HCC, Inc. v.
R H & M Mach. Co., 39 F. Supp. 2d 317, 321 (S.D.N.Y. 1999)).) Accordingly, this Court
conducts a de novo review of the Recommendation. Fed. R. Civ. P. 72(b)(3). “The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id.
The Court agrees with the Recommendation that Plaintiff’s proposed amended complaint
fails to adequately allege a non-preempted parallel claim. (Doc. 30 at 11–15.) Plaintiff’s
objection to this part of the ruling is thus overruled, and the Recommendation is affirmed on this
ground.

However, with respect to the Recommendation’s denial of another opportunity to amend
the operative complaint, this Court will sustain the objection. The Court does so on two main
grounds.
First, while the Plaintiff previously amended his complaint in response to a prior motion
to dismiss (See Docs. 10, 18, 26), Plaintiff had no prior opportunity to amend in response to a
ruling by this Court on the sufficiency of Plaintiff’s claims. The Court believes that affording
Plaintiff one final opportunity to amend is the most appropriate course of action under these
circumstances. See Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955) (“[A] court ordinarily
should not dismiss the complaint except after affording every opportunity to the plaintiff to state
a claim upon which relief might be granted.”); 5B Charles A. Wright, Arthur R. Miller, et al.,
Federal Practice & Procedure § 1357 (3d ed. 2016) (“Thus, the cases make it clear that leave to
amend the complaint should be refused only if it appears to a certainty that the plaintiff cannot
state a claim. . . . A wise judicial practice (and one that is commonly followed) would be to
allow at least one amendment regardless of how unpromising the initial pleading appears
because except in unusual circumstances it is unlikely that the district court will be able to
determine conclusively on the face of a defective pleading whether the plaintiff actually can state
a claim for relief.”); JMCB, LLC v. Bd. of Commerce & Indus., No. 17-77, 2018 WL 4039183, at
*18 (M.D. La. Aug. 23, 2018) (“While Plaintiff previously amended its complaint, it did not do
so in response to a ruling by this Court assessing the sufficiency of Plaintiff's claims. Thus,
though [defendant] makes a compelling case for denying leave to amend, the Court will act in
accordance with the ‘wise judicial practice’ and general rule and grant Plaintiff's request [to
amend].”).

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This approach appears even more proper given the nature of Plaintiff’s objection here.
Specifically, for the first time in his objection, Plaintiff raises new arguments and authority,
including an FDA letter sent to a company ultimately acquired by Defendant that advised of
FDA violations. While Defendant makes a compelling argument why Plaintiff has still failed to
state a claim, the Court finds that these contentions are better assessed following a new motion to
dismiss. For this additional reason, Plaintiff will be given leave to amend.
Nevertheless, the Court advises Plaintiff of his obligations under Rule 11 of the Federal
Rules of Civil Procedure. Plaintiff should have a good faith basis in law and fact for any claims
he makes. Fed. R. Civ. P. 11(b)(2), (3). While the Court has no reason to doubt Plaintiff’s
adherence to this rule, the Court issues this reminder as a precaution.
Accordingly,
IT IS ORDERED that the Plaintiff’s objection is OVERRULED IN PART and
SUSTAINED IN PART. Plaintiff’s objection is SUSTAINED in that Plaintiff shall have
twenty-eight (28) days in which to amend the operative complaint to cure the deficiencies
therein. Failure to do so will result in the dismissal of his claims with prejudice. In all other
respect, Plaintiff’s objection is OVERRULED, and the Court adopts the Magistrate Judge’s
Report and Recommendation (Doc. 30).
Signed in Baton Rouge, Louisiana, on November 19, 2018.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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