Wells v. Allergan USA Inc et al

Filing 43

ORDER denying as moot 8 Motion to Dismiss; granting 31 Motion to Amend Complaint. The plaintiff has ten days from the entry of this order to file her amended complaint. Signed by Honorable Timothy M Cain on 7/16/2013.(gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Suzy Wells,
Plaintiff,
vs.
Allergan USA, Inc. and Medicis
Aesthetics, Inc.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 6:12-3509-TMC

ORDER

This matter is before the court on the defendants’ motion to dismiss (ECF No. 8) and the
plaintiff’s motion to amend her complaint (ECF No. 31).
The plaintiff originally filed this action in state court, alleging various products liability
claims. The defendants properly removed the matter to this court and then moved to dismiss the
complaint as preempted by the Medical Device Amendments to the Food, Drug & Cosmetic Act
and not properly plead under the federal rules. In response, the plaintiff moved to amend her
complaint to cure the pleading deficiencies.
The court may grant leave to amend “when justice so requires” as long as the amendment
would not result in undue delay or prejudice and is not the product of the movant’s bad faith or
dilatory motive. Fed. R. Civ. P. 15(a); Forman v. Davis, 371 U.S. 178, 182 (1962).
In this case, the defendants do not oppose the plaintiff’s motion to amend (see ECF No.
42) and the court sees no reason to deny the motion. The plaintiff’s motion to amend (ECF No.
31) is, therefore, granted and the defendants’ motion to dismiss (ECF No. 8) is denied as moot.
The plaintiff has ten days from the entry of this order to file her amended complaint.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Court Judge
Anderson, South Carolina
July 16, 2013