Lowe v. Wellcare Health Plans Inc. et al
Filing
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Memorandum Opinion and Order granting 27 Motion to Stay filed by Wellcare Health Plans Inc., and granting 12 Motion to Amend/Correct filed by Sherri R Lowe re: 27 MOTION to Stay Discovery or in the Alternative Motion for Protection. (Ordered by Judge Sam A Lindsay on 11/21/2011) (ctf)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHERRI R. LOWE,
Plaintiff,
v.
WELLCARE HEALTH PLANS, INC.,
and IRVING GILBERT,
Defendants.
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Civil Action No. 3:11-CV-0009-L
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Motion for Leave to File Amended Petition, filed May 16,
2011; and Defendant Wellcare Health Plans, Inc.’s Motion to Stay Discovery or in the Alternative,
Motion for Protection, filed November 8, 2011. For the reasons that follow, the court grants
Plaintiff’s Motion for Leave to File Amended Petition and Defendant Wellcare Health Plans, Inc.’s
Motion to Stay Discovery.
I.
Background
Pro se Plaintiff Sherri Lowe (“Lowe”) filed this action against Wellcare Heath Plans, Inc.
(“Wellcare”) and Irving Gilbert (collectively “Defendants”) on January 3, 2011, asserting various
federal and state law claims and seeking recovery for payments allegedly due for services as an
insurance agent. On April 11, 2011, Wellcare file moved to dismiss Lowe’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(6). In its motion to dismiss, Wellcare contends that Lowe’s
federal claims are barred by res judicata because they were dismissed with prejudice in a prior
Memorandum Opinion and Order – Page 1
lawsuit by Lowe against Wellcare.* Wellcare contends that Lowe’s state law claims also fail as a
matter of law. Lowe subsequently moved for leave to file an amended complaint on May 16, 2011,
“to correct the pleading deficiencies in her original petition.” Pl.’s Mot. for Leave. Lowe’s
proposed amended pleading does not contain any federal claims. Wellcare objected to the motion
for leave to amend.
II.
Motion for Leave to Amend
Lowe’s motion for leave to amend is governed by Rule 15 of the Federal Rules of Civil
Procedure. Wellcare contends that Lowe’s motion should be denied because it will be prejudiced
by the amendment. Wellcare maintains that it will be prejudiced because Lowe’s first federal
lawsuit against it was dismissed and allowing Lowe to amend her pleadings will “serve no purpose
other than continued unnecessary expenditure of time and resources over frivolous litigation.”
Wellcare Resp. 3.
It is within the court’s sound discretion to determine whether to grant leave to amend the
pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962). Rule 15 provides that the court “should
freely give leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The “outright
refusal to grant leave to amend without a justification . . . is considered an abuse of discretion.”
United States ex rel. Adrian v. Regents of the University of Cal., 363 F.3d 398, 403 (5th Cir. 2004).
Although Lowe requested leave after the period for amending as a matter of course under
Rule 15(a)(1)(B), this is her first attempt at amending her pleadings in this case, and no scheduling
order has been entered. Additionally, since Lowe is proceeding pro se and Wellcare appears to
*
In the prior lawsuit filed by Lowe against Wellcare, the court dismissed her federal claims with prejudice and
dismissed her state claims “without prejudice to Plaintiff’s right to bring the claims in state court.” Lowe v. Wellcare
Health Plans, Inc., No. 3:09-CV-0806-D, 2009 WL 3047424 (N.D. Tex. Sept. 22, 2009).
Memorandum Opinion and Order – Page 2
acknowledge that Lowe’s amendment will not affect its motion to dismiss, the court determines that
the request for leave to amend should be granted.
III.
Motion to Stay Discovery
According to Wellcare’s Motion to Stay Discovery, Lowe served written discovery requests
on Wellcare on October 28, 2011. Wellcare requested but Lowe would not agree to extend its
November 30, 2011 discovery deadline for objections and responses until after the court rules on
the parties’ outstanding motions, including Wellcare’s motion to dismiss and a motion to strike filed
by Lowe. In light of the outstanding motions and Lowe’s motion for leave to amend, the court
determines that Wellcare’s motion to stay discovery pending resolution of its motion to dismiss and
Lowe’s motion to strike should be granted.
IV.
Conclusion
For the reasons herein stated, the court grants Defendant Wellcare Health Plans, Inc.’s
Motion to Stay Discovery and Plaintiff’s Motion for Leave to File Amended Petition. Accordingly,
discovery is stayed until otherwise directed by the court, and Plaintiff is directed to file her
Amended Complaint by November 28, 2011, which contains the same information as the proposed
amended complaint previously submitted on May 16, 2011, in conjunction with Plaintiffs’ motion
for leave to amend.
In addition, the court desires briefing from the parties as to why the court should exercise
jurisdiction over Lowe’s state law claims after Plaintiff’s Amended Complaint is filed. The parties
may each submit a brief not to exceed seven pages, which is to be filed no later than November
29, 2011. No additional briefing is to be submitted unless directed by the court.
Memorandum Opinion and Order – Page 3
It is so ordered this 21st day of November, 2011.
_________________________________
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order – Page 4
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