Raju v. Murphy et al

Filing 139

ORDER denying without prejudice 89 Motion to Amend/Correct; finding as moot 116 Motion to Strike. Signed by District Judge Carlton W. Reeves on 10/31/02018. (DJ)

____________________
No. 3:17-CV-357-CWR-FKB
SESHADRI RAJU
Plaintiff,
v.
ERIN MURPHY
Defendant.
____________________
ORDER DENYING MOTION TO AMEND
____________________
Before CARLTON W. REEVES, District Judge.
Before the Court is Dr. Seshadri Raju’s motion for leave to file
a first amended complaint. Docket No. 89. The proposed
amendment adds a party, Medtronic Vascular, Inc.
(“Medtronic”), and six substantive claims. The additional
claims include: (1) civil RICO, (2) theft of trade secrets, (3)
tortious interference with contract, (4) civil conspiracy, (5)
unfair competition by misappropriation, and (6) intrusion
and unauthorized access to a computer network. Also before

the Court is Dr. Erin Murphy’s motion to strike Dr. Raju’s
surrebuttal. Docket No. 116. Dr. Murphy contends that the
proposed amendment should be denied for failure to show
good cause under Rule 16(b) of the Federal Rules of Civil
Procedure (FRCP), improper joinder of a party under Rule 20
of the FRCP, and futility.
For the reasons below, the motion to amend is denied without
prejudice, and the motion to strike is moot.
I.
Good Cause
“Once a scheduling order has been entered by the Court, the
decision to allow an amended complaint is controlled by Fed.
R. Civ. P. 16(b), rather than the often quoted Rule 15.” Alford
v. Kuhlman Corp., No. 3:07-CV-756-HTW-LRA, 2010 WL
1257844, at *1 (S.D. Miss. March 26, 2010) (citing S &W Enters.
v. Southtrust Bank, 315 F.3d 533 (5th Cir. 2003)). Rule 16(b)
provides that a scheduling order cannot be modified without
a showing of good cause and the judge’s consent. The Court
determines whether good cause is shown by considering: “(1)
the explanation for the failure to timely move for leave to
amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability
of a continuance to cure such prejudice.” Id. (brackets
omitted).
The motion to amend deadline was October 16, 2017. Dr. Raju
asserts that he did not timely move to amend because he was
not aware of facts giving rise to the proposed additional
claims or Medtronic’s participation until he received
discovery on June 27, 2018. He then moved to amend within
a month of receiving discovery, on July 18, 2018. The

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discovery consists of emails that purportedly reveal, among
other things, a conspiracy to obtain Dr. Raju’s trade secrets
and confidential information. Dr. Murphy argues that
because Dr. Raju did not seek this evidence until four months
after the motion to amend deadline, and did not ask for an
extension when the scheduling order was first amended,
there is no valid explanation for Dr. Raju’s delay.
Furthermore, Dr. Murphy argues that Dr. Raju was aware of
Dr. Murphy’s relationship with Medtronic at the time the
original Complaint was filed.
Dr. Murphy’s argument is without merit. The purpose of the
motion to amend deadline is to require the plaintiff to include
any and all claims and parties that the plaintiff knows or
should know of at the time the Complaint is filed. There is no
requirement that the plaintiff ask for discovery before the
motion to amend deadline expires. Even if he had, Dr. Raju
would not have received the discovery before the deadline as
a protective order was in place. 1
Dr. Raju asserts that the basis of the proposed additional
claims were not known to him before discovery. As such, Dr.
Raju has put forth a valid explanation for the failure to timely
move to amend.
Dr. Murphy states that she will be prejudiced as she will incur
additional expenses and in light of the inevitable litigation
resulting from the addition of a party. Those concerns,
however, yield to Raju’s justifications for adding the new
party. Should the Court find that appropriate claims may be
brought against Medtronic, a new scheduling order will be
entered.
1 A Protective Order was entered on June 14, 2018.

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Accordingly, there is good cause to amend the complaint.
II.
Proper Joinder of Medtronic
Under Rule 20, “persons . . . may be joined in one action as
defendants if: (A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any questions of law or
fact common to all defendants will arise in the action.” Fed.
R. Civ. P. 20(a)(2).
Dr. Murphy argues that joinder of Medtronic is improper
because the claims are conclusory and lack specificity. Dr.
Raju, however, goes into sufficient detail of what the newly
discovered evidence reveals about Medtronic and how it
arises out of the same series of transactions or occurrences as
the claims against Dr. Murphy. For example, the email
correspondence purportedly reveals that (1) Dr. Murphy
provided Medtronic with Dr. Raju’s trade secrets after she
accepted a position with Medtronic, but before she resigned
from the Raju clinic, (2) that Medtronic knew the information
had been improperly obtained, and (3) that both parties used
the trade secrets and copyrighted material in developing
Medtronic’s stent program for sale to the public. Moreover,
several of the proposed additional claims are asserted against
both Dr. Murphy and Medtronic, thus satisfying the second
prong of Rule 20.
The allegations made against Medtronic are largely, if not
completely, intertwined with the current dispute between Dr.
Raju and Dr. Murphy. A separate suit against Medtronic on
these facts would be a waste of judicial resources and risk

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inconsistent results. Accordingly, the joinder of Medtronic is
proper under Rule 20.
III.
Futility of the Amendment
Lastly, Dr. Murphy asserts that the motion to amend should
be denied because the amendment would be futile. In his
surrebuttal, Dr. Raju concedes that four out of his six
proposed new claims are, at some level, deficient, 2 and seeks
leave of Court to clarify the proposed additional claims and
add two new claims under the Copyright Act and the
Mississippi Uniform Trade Secret Act (MUTSA). Dr. Raju also
mentions, with no particularity, an intent to clarify his civil
RICO claim.
Dr. Murphy alleges in her motion to strike, and the Court
agrees, that a motion to amend the proposed amended
complaint is not properly before the Court, as it was filed in
violation of Local Rule 7(b)(3)(C) and 7(b)(2). 3
The Court cannot assess a motion to amend in this state. It is
unclear how Dr. Raju seeks to clarify the proposed civil RICO
2 The four deficient claims in the proposed amended complaint are: (1)
unfair competition by misappropriation (preempted by the Copyright
Act), (2) theft of trade secrets (cited wrong statute), (3) civil conspiracy (no
valid underlying tort alleged), and (4) intrusion and unauthorized access
to computer network (no specific law cited and the requisite amount of
damages is not alleged).
3 Under Rule 7(b)(3)(C), “a response to a motion may not include a
counter-motion in the same document. Any motion must be an item
docketed separately from a response.” Local Rule 7(b)(2) further requires
that “a proposed amended pleading must be an exhibit to a motion for
leave to file the pleading.”

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claim. Additionally, by seeking to add a claim under the
Copyright Act, Dr. Raju seems to concede that the unfair
competition by misappropriation claim is preempted.
Nevertheless, Dr. Raju asserts that he does not intend to
forego the misappropriation claim. If the Copyright Act
preempts the misappropriation claim, though, the
misappropriation claim cannot stay. The Court, however,
recognizes that some of the claims Dr. Raju seeks to modify in
the proposed amended complaint are minor clerical issues.
Dr. Raju will be permitted one opportunity to re-file a motion
to amend with any and all claims he seeks to assert against
Dr. Murphy or Medtronic. The Court will grant Dr. Raju 10
days to re-file.
For these reasons, the motion to amend the complaint is
DENIED without prejudice and the motion to strike is MOOT.
SO ORDERED, this the 31st day of October, 2018.
s/ CARLTON W. REEVES
United States District Judge

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