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Bigsby v. Davol Inc.

United States District Court, S.D. Indiana, Indianapolis Division

December 20, 2016

NICK C. BIGSBY, Plaintiff,
v.
DAVOL INC., Defendant.

          ENTRY ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR LEAVE TO FILE BELATED AMENDED COMPLAINT

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendant Davol Inc. (“Davol”) (Filing No. 20), and a Motion for Leave to File a Belated Motion to Amend Complaint by pro se Plaintiff Nick C. Bigsby (“Bigsby”) (Filing No. 29). Bigsby is an inmate at the Pendleton Correctional Facility in Pendleton, Indiana (“Pendleton”). While in custody at Pendleton, Bigsby suffered from a hernia, and after undergoing three separate surgeries in 2013, 2014, and 2015, he continues to suffer pain because of his hernia. He initiated this lawsuit against Davol, asserting that Davol's “hernia patch kits” are defective. Davol moved to dismiss Bigsby's Complaint on the basis that it fails to allege a sufficient factual basis to support any legal claims for relief. After Davol filed its Motion to Dismiss, Bigsby filed his Motion for Leave to File a Belated Motion to Amend Complaint, seeking to add numerous defendants to this litigation. For the following reasons, the Court GRANTS Davol's Motion to Dismiss and DENIES Bigsby's Motion for Leave to File a Belated Motion to Amend Complaint.

         I. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint that has failed to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). However, courts “are not obliged to accept as true legal conclusions or unsupported conclusions of fact.” Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002).

         The complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court explained that the complaint must allege facts that are “enough to raise a right to relief above the speculative level”. Twombly, 550 U.S. at 555. Although “detailed factual allegations” are not required, mere “labels, ” “conclusions, ” or “formulaic recitation[s] of the elements of a cause of action” are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009) (“it is not enough to give a threadbare recitation of the elements of a claim without factual support”). The allegations must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Stated differently, the complaint must include “enough facts to state a claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be facially plausible, the complaint must allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         Additionally, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the Court notes that:

[I]t is also well established that pro se litigants are not excused from compliance with procedural rules. [T]he Supreme Court has never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel[.] Further, as the Supreme Court has noted, in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.

Loubser v. United States, 606 F.Supp.2d 897, 909 (N.D. Ind. 2009) (citations and quotation marks omitted).

         Federal Rule of Civil Procedure 15(a)(1) allows a party to amend its pleading once as a matter of course within twenty-one days after serving it, or “if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b).” After a responsive pleading has been filed and twenty-one days have passed, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. Pro. 15(a)(2). The Rule, however, “do[es] not mandate that leave be granted in every case. In particular, a district court may deny a plaintiff leave to amend his complaint if there is undue delay, bad faith[, ] or dilatory motive . . . [, or] undue prejudice . . ., [or] futility of amendment.” Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir. 2002) (citation and quotation marks omitted). “Whether to grant or deny leave to amend is within the district court's discretion.” Campbell v. Ingersoll Milling Machine Co., 893 F.2d 925, 927 (7th Cir. 1990).

         II. BACKGROUND

         Bigsby is an inmate at the Pendleton Correctional Facility in Pendleton, Indiana. While in custody at Pendleton, Bigsby suffered from a hernia. Bigsby was examined by various medical providers and then underwent three separate surgeries at St. Vincent Anderson Regional Hospital on April 16, 2013, July 14, 2014, and March 12, 2015, to address the hernia. During the first surgery, a Ventrio Hernia Patch was implanted in Bigsby. During the second and third surgeries, a Ventralex Hernia Patch was implanted. Each of these hernia patch kits was manufactured by Davol.

         Following each of the surgeries, Bigsby continued to suffer pain from the hernia and experienced infections. He alleges that each hernia patch kit came loose, eroded, or had holes forming in it, and it would become defective within four months after each surgery. Bigsby asserts that he suffers great pain and internal bleeding because of malfunctions of the hernia patch kits. To address the discomfort and pain, Bigsby pushes his intestines back into his abdomen when the hernia flares up.

         Bigsby filed his Complaint against Davol on January 29, 2016, in the Madison Circuit Court, asserting that Davol's hernia patch kits are defective (Filing No. 1-2 at 7-10). On February 3, 2016, Davol timely removed the case to this Court based on diversity jurisdiction (Filing No. 1). Davol then promptly filed its Motion to Dismiss on March 9, 2016 (Filing No. 20). The Court set an April 27, 2016 deadline for amending pleadings, including adding new parties (Filing No. 17 at 2). The parties participated in an initial status conference on April 11, 2016, and the Court extended the deadline to file motions to amend the pleadings to May 27, 2016 (Filing No. 27). On June 1, 2016, Bigsby filed his Motion for Leave to File a Belated Motion to Amend Complaint, explaining that his motion was untimely filed because the jail where he is housed was on lockdown, and he was not given access to a computer to file his motion until after the filing deadline passed (Filing No. 29).

         III. ...


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