United States District Court, N.D. Georgia, Atlanta Division
RICHARD S. BAILEY, SR. and SHARON BAILEY, a married couple, Plaintiffs,
B. BRAUN MEDICAL INC., a Pennsylvania corporation, AESCULAP INCORPORATED, a Pennsylvania Corporation, AESCULAP IMPLANT SYSTEMS, a Pennsylvania Corporation, B. BRAUN INTERVENTIONAL SYSTEMS, INC., a Delaware Corporation, JOHN AND JANE DOES I-X, BLACK AND WHITE CORPORATIONS I-X, Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs Richard S. Bailey,
Sr. and Sharon Bailey's (together,
“Plaintiffs”) Motion for Leave to File Amended
Complaint to Add “Braun S.A.S.” as a Defendant
 (“Motion to Amend”). Also before the Court
is Plaintiffs' Motion to Transfer Case to Southern
District of Georgia  (“Motion to Transfer”).
Also before the Court is Defendants B. Braun Medical Inc.,
Aesculap, Inc., Aesculap Implant Sytems, LLC, and B. Braun
Interventional Systems Inc.'s (collectively,
“Defendants”) Motion for Leave to File Surreply
a medical device products liability action stemming from the
implant of a B. Braun VenaTech filter in Plaintiff Richard
Bailey's inferior vena cava. On April 13, 2016,
Plaintiffs filed their Complaint in the State Court of
Gwinnet County, Georgia. ([1.1]). On May 12, 2016, Defendants
filed their Notice of Removal. ().
March 6, 2017, Plaintiffs filed their Motion to Amend,
seeking to amend their Complaint to add B. Braun Medical
S.A.S. (“Braun S.A.S.”) as a defendant in this
action. Plaintiffs contend that, in November 2016, Defendants
produced a distributorship agreement identifying Braun S.A.S.
as the party granting B. Braun Interventional Systems,
Inc.'s distribution rights for the filter at issue in
this action. Defendants argue that Plaintiffs' motion is
untimely and would unduly delay the resolution of this case.
Defendants also argue that the Court should deny
Plaintiffs' motion because Braun S.A.S. is not subject to
personal jurisdiction in Georgia.
same day, Plaintiffs filed their Motion to Transfer.
Plaintiffs argue that neither the Defendants nor any other
witnesses to the case are residents of the Northern District
of Georgia, and causing the witnesses to travel hundreds of
miles for trial will impose a substantial inconvenience on
them. Plaintiffs also argue that Mr. Bailey is not in good
health and should not have to bear the burden of traveling
hundreds of miles to the Northern District. Defendants
contend that, by filing suit in the Northern District,
participating in discovery here, and waiting almost ten
months to move to transfer, Plaintiffs have waived any
argument that the Southern District of Georgia is a more
convenient forum. On April 10, 2017, Defendants filed their
Motion for Leave to File Surreply, in which they present Mr.
Bailey's deposition testimony showing that he travels
long distances around Georgia many times a month, mostly to
attend Masonic meetings.
Motion to Amend
15(a) of the Federal Rules of Civil Procedure allows a
plaintiff to file one amended complaint as a matter of
course, if the amended complaint is filed either within
twenty-one (21) days of service of the original complaint or
within twenty-one (21) days of the defendant's filing of
a responsive pleading or Rule 12 motion to dismiss.
Fed.R.Civ.P. 15(a)(1). Amended complaints outside of these
time limits may be filed only “with the opposing
party's written consent or the court's leave.”
decision whether to grant leave to amend a complaint is
within the sole discretion of the district court.”
Laurie v. Ala Ct. of Criminal Appeals, 256 F.3d
1266, 1274 (11th Cir. 2001). Rule 15 of the Federal Rules of
Civil Procedure provides that “[t]he court should
freely give leave [to amend] when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “There must be a substantial
reason to deny a motion to amend.” Laurie, 256
F.3d at 1274. “Substantial reasons justifying a denial
include ‘undue delay, bad faith, dilatory motive on the
part of the movant, . . . undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] futility
of amendment.'” Id. (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). The standard for
deciding a motion for leave to add parties under Rule 21 is
the same as the standard under Rule 15(a). Loggerhead
Turtle v. County Council of Volusia County, Fla., 148
F.3d 1231, 1255 (11th Cir. 1998) (internal quotation marks
and citations omitted).
contend that, in November 2016, Defendants produced a
distributorship agreement identifying Braun S.A.S. as the
party granting B. Braun Interventional Systems, Inc.'s
distribution rights for the filter at issue in this action.
Plaintiffs claim that, until they reviewed Defendants'
January 2017 production and the parties met-and-conferred
regarding it, they did not know that Defendants did not have
information regarding the filter design, testing, and
manufacturing. Plaintiffs further show that, after Plaintiffs
filed their motion, Defendants' counsel took the position
that the only entity that could answer questions about
design, development, and manufacture of the filter at issue
is Braun S.A.S. Defendants argue that Plaintiffs' motion
is untimely and would unduly delay the resolution of this
case. Defendants argue that Plaintiffs should have moved in
November 2016 to add Braun S.A.S. Defendants also argue that
the addition of Braun S.A.S. will unduly delay the resolution
of this case, because service would need to be made on Braun
S.A.S. under the Hague Convention, and then additional
discovery will be required.
Court finds that Plaintiffs were not dilatory in filing their
motion. It appears Plaintiffs filed their motion within
several weeks of learning that Braun S.A.S. was the sole
entity in possession of the information Plaintiffs seek, and
perhaps the sole entity responsible for the design,
development, and manufacture of the filter at issue. The
Court also finds that the addition of Braun S.A.S. as a
party, while requiring additional time for service and
discovery, will not unduly delay this litigation. If Braun
S.A.S. is not added, Plaintiffs represent they would seek
leave to subpoena Braun S.A.S. for documents and Rule
30(b)(6) depositions as a non-party, which also will be a
next argue that amendment would be futile, because Plaintiffs
cannot show the Braun S.A.S. is subject to personal
jurisdiction in Georgia.“[C]urrent parties
‘unaffected by the proposed amendment' do not have
standing to assert claims of futility on behalf of proposed
defendants.” Custom Pak Brokerage, LLC v. Dandrea
Produce, Inc., No. CIV. 13-5592 NLH/AMD, 2014 WL 988829,
at *2 (D.N.J. Feb. 27, 2014) (quoting Clark v. Hamilton
Mortg. Co., No. 07-252, 2008 WL 919612, at *2 (W.D.
Mich. Apr.2, 2008)). “Rather, current parties only
possess standing to challenge an amended pleading directed to
proposed new parties on the basis of undue delay and/or
prejudice.” Id. (citing Nat'l Indep.
Theatre Exhibitors, Inc. v. Charter Fin. Grp., Inc., 747
F.2d 1396, 1404 (11th Cir. 1984)). Accordingly, Defendants
lack standing to challenge the proposed amendment on the
grounds of futility. The Court finds Defendants fail to show
undue delay, bad faith, or dilatory motive, and
Plaintiffs' Motion to Amend is granted.