Scott v. Pfizer Pharmaceutical

Filing 12

REPORT AND RECOMMENDATIONS recommending 11 MOTION to Amend/Correct 1 Complaint filed by Harril Glen Scott, be granted and that the deft Dr Duane Tisdale be dismissed as a party to this lawsuit. Signed by Magistrate Judge Judith K. Guthrie on 10/06/11. cc:pltf 10-07-11(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
HARRILL GLEN SCOTT

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v.

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PFIZER PHARMACEUTICAL, ET AL.

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CIVIL ACTION NO. 6:11cv276

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Harrill Scott, proceeding pro se, filed this lawsuit complaining that he had
received a drug called Bextra without warning him of the potential side effects. The case was
referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
Scott named Pfizer Pharmaceutical Corp., the manufacturer of Bextra, and Dr. Duane Tisdale
of the Smith County Public Health Clinic. On August 5, 2011, the Court issued a Report
recommending that the lawsuit be dismissed for want of subject matter jurisdiction, in that he and
Dr. Tisdale are residents of Texas and so diversity jurisdiction does not exist.
In response to this Report, Scott has filed a motion for leave to amend his complaint. The
amended complaint deletes any reference to Dr. Tisdale. Because an amended complaint supersedes
the original, see Clark v. Tarrant County, Texas, 798 F.2d 736, 740 (5th Cir. 1986), Scott is in effect
seeking the dismissal of Dr. Tisdale. This request should be granted.

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RECOMMENDATION
It is accordingly recommended that the Plaintiff’s motion for leave to amend his complaint
(docket no. 11) be granted and that the Defendant Dr. Duane Tisdale be dismissed as a party to this
lawsuit.
A party's failure to file objections to the findings, conclusions, and recommendations
contained in this Report within 14 days after service with a copy thereof shall bar that party from de
novo review by the district judge of those findings, conclusions, and recommendations and, except
upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings
and legal conclusions accepted and adopted by the district court. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
So ORDERED and SIGNED this 6

day of October, 2011.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

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