United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff/Movant's Motion
to Alter or Amend Order and Motion to Amend Complaint. (Doc.
# 64). The Motion (Doc. # 64) has been fully briefed. (Docs.
# 64, 65, 73, 74). For the reasons explained below, the
Motion (Doc. # 64) is due to be denied.
engage in the distribution, marketing, and sale of the drug
known as Lialda. (Doc. # 41 at ¶ 8). In November 2013,
Plaintiff was prescribed Lialda for treatment of his
Crohn's disease. (Id. at ¶ 39). Plaintiff
took Lialda, as prescribed, from November 2013 until February
2015. (Id.). In September 2015, Plaintiff was
diagnosed with Stage IV renal failure and severe chronic
interstitial nephritis. (Id. at ¶ 45). On June
10, 2016, Plaintiff filed a complaint against Shire U.S. mc,
Shire LLC, Shire Development LLC, Shire Pharmaceutical
Development, Inc., and Shire Pharmaceuticals LLC. (Doc. # 1).
October 5, 2016, Defendants moved to dismiss Plaintiffs
claims. (Docs. # 26, 27). Plaintiff filed an opposed motion
to amend his complaint on October 24, 2016, and the court
granted Plaintiff leave to amend on November 1, 2016. (Docs.
# 36, 40). On November 2, 2016, Plaintiff filed a First
Amended Complaint. (Doc. # 41). In his First Amended
Complaint, Plaintiff asserted that Defendants'
recommendation of only "periodic" renal testing
while using Lialda, as opposed to the more specific testing
regimen detailed in his Amended Complaint, proximately caused
his kidney injury. (Id. #41 at ¶ 26).
Specifically, Plaintiff asserted claims for failure to warn
under the Alabama Extended Manufacturers Liability Doctrine
("AEMLD") (Count One), fraud (Count Two),
suppression and concealment (Count Three), and breach of
express warranty (Count Four). (Doc. # 41).
November 16, 2016, Defendants moved to dismiss Plaintiffs
First Amended Complaint. (Docs. # 44, 45). On May 8, 2017,
the court dismissed Counts Two, Three, and Four with
prejudice and denied Defendants' motion to dismiss Count
One without prejudice. (Docs. # 53, 54). After granting
Defendants' motion to dismiss for lack of personal
jurisdiction on May 12, 2017, the court dismissed Defendants
Shire Development LLC, Shire Pharmaceutical Development,
Inc., and Shire Pharmaceuticals LLC without prejudice. (Doc.
# 56). On June 29, 2017, Plaintiff filed a Motion to Alter or
Amend Order and Motion to Amend Complaint (Doc. # 64), which
is discussed in turn.
has asked the court to amend its Order (Doc. # 54) dismissing
with prejudice Counts Two, Three, and Four of Plaintiff s
First Amended Complaint (Doc. # 41). (Docs. # 64, 65).
Specifically, Plaintiff asks the court to enter a revised
order dismissing these counts without prejudice and to grant
Plaintiff leave to amend his complaint a second time.
(Id.). Plaintiff erroneously argues that he is
entitled to an opportunity to cure the deficiencies in his
First Amended Complaint (Doc. # 41). (Doc. # 65 at p. 3-5).
cases where a plaintiff has acted in good faith and has not
been given an initial chance to amend its complaint,
dismissal with prejudice is a remedy of last resort.
Eiber Radiology, Inc. v. Toshiba Am. Med. Sys.,
Inc., 673 Fed.Appx. 925, 929 (11th Cir. 2016);
cf. Fed. R. Civ. Pro. 15(a)(2) ("The court
should freely give leave [to amend] when justice so
requires."). When a more carefully drafted complaint
might state a claim, a district court should grant a pro
se plaintiff at least one chance to amend its complaint
before dismissing the action with prejudice; however, such
leniency is not required when a plaintiff has been
represented by counsel. Eiber Radiology, 673
Fed.Appx. at 929; see Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541, 542 (11th Cir. 2002) (partially
overruling Bank v. Pitt, 928 F.2d 1108, 1112 (11th
Cir. 1991), by ruling that a district court is not required
to grant a counseled plaintiff leave to amend his complaint
sue sponte). The Eleventh Circuit has "never
required district courts to grant counseled plaintiffs more
than one opportunity to amend a deficient complaint, nor [has
the Eleventh Circuit] concluded that dismissal with prejudice
is inappropriate where a counseled plaintiff has failed to
cure a deficient pleading after having been offered ample
opportunity to do so." Eiber Radiology, 673
Fed.Appx. at 930; see Henley v. Turner Broad. Sys., Inc.,
__ F.Supp. 3D __, 2017 WL 3158142, at *16 (N.D.Ga. July
25, 2017) ("The Court also concludes it is unnecessary
to allow Plaintiffs, who are represented by counsel, the
opportunity to file a further amended complaint.").
case, Plaintiff had ample opportunity to state claims on
which relief could be granted. See Eiber Radiology,
673 Fed.Appx. at 930 (affirming a district court's
dismissal of an amended complaint with prejudice). After
Defendants initially moved to dismiss Plaintiffs complaint
(Doc. # 26), the court granted Plaintiff leave to amend his
complaint. (Doc. # 40). Once Plaintiff filed his First
Amended Complaint (Doc. # 41), Defendants again moved to
dismiss the case. (Doc. # 44). Rather than requesting leave
to amend his complaint a second time before the
court ruled on this motion to dismiss, Plaintiff sat
"idly by as he awaited the district court's
determination" of Defendants' second motion to
dismiss. Wagner, 314 F.3d at 543. Allowing Plaintiff
"a second bite at [the] apple" not only would be
prejudicial to Defendants but also would be contrary to
promoting judicial efficiency. See Eiber Radiology,
673 Fed.Appx. at 930. Accordingly, it is unnecessary to allow
Plaintiff the opportunity to file a second amended complaint,
and this Motion (Doc. # 64) is due to be denied.
reasons explained above, Plaintiffs Motion to Alter or Amend
Order and Motion to Amend Complaint (Doc. # 64) are denied.
An order consistent with this Memorandum Opinion will be