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Bailey v. B. Braun Medical Inc.

United States District Court, N.D. Georgia, Atlanta Division

May 1, 2017

RICHARD S. BAILEY, SR. and SHARON BAILEY, a married couple, Plaintiffs,
v.
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

         This 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 [33] (“Motion to Amend”). Also before the Court is Plaintiffs' Motion to Transfer Case to Southern District of Georgia [34] (“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 [45].

         I. BACKGROUND

         This is 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. ([1]).

         On 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.

         The 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.[1]

         II. DISCUSSION

         A. Motion to Amend

         Rule 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.” Fed.R.Civ.P. 15(a)(2).

         “The 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).

         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. 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.

         The 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 lengthy process.

         Defendants next argue that amendment would be futile, because Plaintiffs cannot show the Braun S.A.S. is subject to personal jurisdiction in Georgia.[2]“[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.

         B. Motio ...


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