Tears v. Boston Scientific Corporation

Filing 31

OPINION AND ORDER re: 25 MOTION for Reconsideration re; 23 Clerk's Judgment, 22 Memorandum & Opinion, . filed by Terrance Tears. For the above reasons, Plaintiff's motion for reconsideration is DENIED. This Order resolves Dkt. No. 25. SO ORDERED. (Signed by Judge Alison J. Nathan on 7/3/2019) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Terrance Tears,
Plaintiff,
17-cv-9793 (AJN)

-vOPINION & ORDER
Boston Scientific Corporation,
Defendant.

ALISON J. NATHAN, District Judge:
Plaintiff Terrance Tears brought this action against Defendant Boston Scientific
Corporation ("BSC"), the manufacturer of the Greenfield vena cava filter, seeking compensatory
and punitive damages from BSC for alleged negligence, strict products liability, breach of
express and implied warranties, fraudulent misrepresentation and concealment, negligent
misrepresentation, and violation of New York General Business Law ("GBL") §§ 349, 350. On
September 29, 2018, the Court issued a Memorandum Opinion & Order granting BSC's motion
to dismiss the Complaint in full, with prejudice. Dkt. No. 22. Now before the Court is
Plaintiffs motion for reconsideration of the Court's September 29, 2018 Order. Dkt. No. 25.
For the reasons set forth below, Plaintiffs motion is DENIED.

I.

Background
The Court assumes familiarity with this matter, the factual background of which

described at length in the Court's September 29, 2019 Order. See Dkt. No. 22.

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III.

Legal Standard

Plaintiff moves under Rule 60 of the Federal Rules of Civil Procedure for reconsideration
of the Court's dismissal of his claims with prejudice. "A motion for reconsideration should be
granted only when the [moving party] identifies an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice."
Kole! Beth Yechiel Mechil ofTartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir.
2013) (internal quotation marks omitted). Accordingly, unless the moving party points to
"matters ... that might reasonably be expected to alter the conclusion reached by the Court,"
reconsideration should generally be denied. Shrader v. CSXTranp., Inc. 70 F.3d 255, 257 (2d
Cir. 1995). This standard is exigent because "reconsideration of a previous order is an
extraordinary remedy to be employed sparingly in the interests of finality and conservation of
scarce judicial resources." In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614
(S.D.N.Y. 2001) (internal quotation marks omitted).

IV.

Discussion

Plaintiffs primary argument is that the Court erred in declining to afford him an
opportunity to amend his Complaint. See Dkt. No. 27 at 4--11. In addition, Plaintiff argues that
he was not required to identify "the specific manufacturing defect claimed" or "the existence of a
feasible alternative design" in order to successfully plead his manufacturing and design defect
claims, and therefore that the Court should not have dismissed those claims. See id. at 8-10. For
the reasons discussed below, neither argument advances proper grounds for Rule 60
reconsideration.

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A.

The Court Was Within its Direction to Dismiss Plaintifrs Claims with
Prejudice

Plaintiff argues that the Court's dismissal of his claims with prejudice was inconsistent
with Rule 15(a) of the Federal Rules of Civil Procedure and with Second Circuit precedent.
According to Plaintiff, district courts may grant a Rule 12(b)(6) motion without leave to amend
"only if, after viewing plaintiffs allegations in [the light most favorable to plaintiff], it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); id. at 250
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This argument misstates the law in the
Second Circuit. The "no set of facts" language in Harris, which Plaintiff describes as "wellestablished in the Second Circuit," in fact describes a pleading standard that has since been
abrogated by the Supreme Court. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562-63
(2007) (Conley's "no set of facts" language has been questioned, criticized, and explained away
long enough .... The phrase is best forgotten as an incomplete, negative gloss on an accepted
pleading standard.... ).
It is true that the Second Circuit has cautioned against denying a plaintiff leave to amend
"premature[ly]." Loreley Fin. (Jersey No. 3 Ltd. V. Wells Fargo Sec., LLC, 797 F.3d 160, 190
(2d Cir. 2015). However, in this case, the Court remains convinced that denial of leave to amend
was warranted. As an initial matter, the circumstances in Loreley are readily distinguishable
from the case at hand. Unlike the plaintiff in that case, Plaintiff here was given an opportunity to
amend his Complaint in response to fully realized arguments in BSC's motion to dismiss. See

Loreley, 797 F.3d at 190 (describing procedure wherein plaintiff was given an opportunity to
amend only after a pre-motion conference, before having an opportunity to review defendant's
brief in support of the anticipated motion to dismiss). BSC's motion to dismiss describes, in full
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detail, deficiencies apparent on the face of Plaintiffs Complaint. Plaintiff contends that BSC's
motion relied on the argument that Plaintiff failed to adequately allege any injury-an argument
which the Court rejected-and therefore that he was not on notice of the deficiencies in his
Complaint. See Dkt. No. 27 at 5. However, BSC's discussion of this argument takes up less
than two pages of its 25-page memorandum of law, the rest of which more than adequately
describes the deficiencies that proved fatal to Plaintiffs claims. See Dkt. No. 7.
In addition, "Loreley does not. .. require that a plaintiff receive, as a matter of course,
repeated judicial decisions on the same motion." Lopez v. Ctpartners Executive Search, Inc.,
173 F.Supp.3d 12, 43 (S.DN.Y. 2016). Indeed, Loreley explicitly left unchanged "the grounds
on which denial ofleave to amend has long been held proper, such as undue delay, bad faith,
dilatory motive, and futility." Id. at 190. These traditional grounds also provided a basis for
denial. After BSC filed its motion, the Court put Plaintiff on notice that "declining to amend its
pleadings to timely respond to a fully briefed argument in Defendant's December 21 motion to
dismiss may well constitute a waiver of the Plaintiffs right to use the amendment process to cure
any defects that have been made apparent by Defendant's briefing." Dkt. No. 8. Despite being
on notice, Plaintiff declined to address the fatal deficiencies described by BSC either through the
amendment process or in his opposition to the motion to dismiss. And, Plaintiffs request for
leave to amend the Complaint, contained in a footnote in his opposition to the motion to dismiss,
"g[ave] no clue as to how the complaint's defects would be cured." Loreley 797 F.3d at 190.
Instead, Plaintiff waited almost a year after learning of the Complaint's deficiencies to attempt to
address them in the instant motion for reconsideration, thereby delaying the litigation and
suggesting a dilatory motive. To allow Plaintiff to amend in these circumstances would
encourage such behavior from litigants and unnecessarily burden both Defendant and the Court.

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See Lopez, 173 F. Supp. 3d at 44 (denying leave to amend in similar circumstances in part
because allowing amendment would "unhelpfully encourage counsel in future cases to forgo
earlier opportunities to replead once on notice of the full arguments favoring dismissal").
Finally, the nature of the Complaint-which, in large part, merely recites background
information regarding vena cava filters and restates the elements of each of its twelve claims in
conclusory terms-suggested that amendment would be an exercise in futility. See generally
Dkt. No. 1; cf Loreley, 797 F.3d at 191 (assessing that leave to amend was appropriate where the
determination to dismiss the complaint "entail[ed] judgment calls on which reasonable minds can
differ in a not insignificant number of cases"). Given these circumstances, it was well within this
Court's discretion, in the absence of any indication to the contrary, to conclude that amendment
would be futile and contrary to the interests of justice. See Dkt. No. 22 at 20-21.
Because Plaintiff has pointed to nothing that "might reasonably be expected to alter the
conclusion reached by the Court" with respect to his request for leave to amend, the motion for
reconsideration of dismissal with prejudice must be denied. Shrader v. CSX Tranp., Inc. 70 F .3d
255, 257 (2d Cir. 1995).

B.

There Was No Clear Error in the Court's Dismissal of Plaintiff's
Manufacturing and Design Defect Claims

Plaintiff also argues that the Court erred in dismissing his manufacturing and design
defect claims because his pleadings, which did not identify a specific manufacturing defect or a
feasible alternative design, were nonetheless sufficient under New York law. See Dkt. No. 27 at
8-9. The sufficiency of Plaintiffs pleading on these claims was fully addressed by both parties
in their briefing on the motion to dismiss, and by the Court in its September 29, 2018 Order.
Plaintiff may not, at this stage, advance "new arguments or issues that could have been raised on
the original motion." Archer v. TNT USA, Inc., 12 F. Supp. 3d 373, 376 (E.D.N.Y. 2014). The
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Court has reviewed the cases cited by Plaintiff, but none demonstrate clear error in the Court's
dismissal or an intervening change in the law. Accordingly, this argument is not a proper ground
for reconsideration. See Shrader, 70 F.3d at 257 ("[A] motion to reconsider should not be
granted where the moving party seeks solely to relitigate an issue already decided.").

V.

Conclusion
For the above reasons, Plaintiffs motion for reconsideration is DENIED. This Order

resolves Dkt. No. 25.
SO ORDERED.

Dated:
New York, New York
United States District Judge

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