HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT are the following Motions filed by Defendant Cloplay Corporation: (1) Motion [4] to Dismiss; (2) Motion [9] to Strike Plaintiff's Response to the Motion [4] to Dismiss; and (3) Motion [20] for Summary Judgment. After due consideration of the record, relevant legal authority, and Defendant's Motions [4] [9] [20], the Court is of the opinion that the Motion [4] to Dismiss should be granted, the Motion [9] to Strike and the Motion [20] for Summary Judgment should be denied as moot, and Plaintiff Rodney Davis' case should be dismissed with prejudice.
Plaintiff Rodney Davis ("Plaintiff" or "Davis") filed a Complaint in the Circuit Court of Harrison County, First Judicial District, on April 27, 2018, against Defendant Cloplay Corporation, also known as Cloplay Plastics Products Company, Inc. ("Defendant" or "Cloplay").
Compl. [1-1] at 3. Plaintiff asserts that Cloplay subjected him to "an unreasonably defective product" and seeks damages in an amount "allow[ed] by law . . . for personal injury, permanent injury, pain and suffering and medical expenses to total no less than $1,000,000." Id.
In its Motion [4] to Dismiss, Cloplay argues that Davis' Complaint [1-1] fails to state a claim upon which relief can be granted because it is devoid of facts upon which it could have notice of a plausible claim against it. Id.; Def.'s Mem. in Support [5]. Cloplay contends that the Complaint fails to properly plead facts to support a claim under the Mississippi Products Liability Act ("MPLA") and that Plaintiff has done nothing more than insufficiently allege that an injury occurred and that a product was defectively designed and manufactured. Def.'s Mem. in Support [5] at 3-5. Davis responds that the Complaint [1-1] is a "fine example of notice pleading as intended and required by the Federal Rules of Civil Procedure and that nothing else need be said in order to convey the essence of the event in question." Pl.'s Resp. [6] at 2; Pl.'s Resp. Mem. [7] at 2-4. Davis maintains that he has given Cloplay adequate notice of his claims. Pl.'s Resp. [6] at 2; Pl.'s Resp. Mem. [7] at 2-3.
In its Reply [11], Defendant reiterates that Plaintiff has failed to state a claim under the MPLA, which is the exclusive remedy for claims based on defective design or manufacture of a product. Reply [11] at 2. Cloplay further posits that the Court should not permit Davis an opportunity to amend because he insists his pleadings are sufficient; for this reason, any amendment would be futile. Id. at 5-6.
The Court entered a Case Management Order [15] on October 10, 2018, and set October 24, 2018, as the deadline for motions to amend pleadings. More than two months after that deadline passed, on January 3, 2019, Davis filed a Motion [18] for Extension of Time to Amend his Complaint. Mot. [18] to Am. The Magistrate Judge denied Plaintiff's Motion [18] on grounds that Davis had failed to show good cause for such a late modification of the case management deadline, and had failed to submit a memorandum brief in support of his Motion [18] as required by the Uniform Local Civil Rules. Order [19]. Davis did not seek reconsideration of, nor did he appeal, the Magistrate Judge's Order [19].
Cloplay has also filed a Motion [9] to Strike Davis' Response [6] to Cloplay's Motion [4] to Dismiss, which Davis filed two weeks past the response deadline. Pl.'s Resp. [6]; Mot. [9] to Strike; Mem. in Support [10]. Davis has not filed a response to the Motion [9] to Strike. Finally, on March 8, 2019, Cloplay filed a Motion [20] for Summary Judgment.
When presented with a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court "must assess whether the complaint contains sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face[.]" Spitzberg v. Hous. Am. Energy Corp., 758 F.3d 676, 683 (5th Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a complaint need not contain detailed factual allegations, it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; Fed. R. Civ. P 12(b)(6); Fed. R. Civ. P. 8(a) (requiring "a short and plain statement of the claim showing that the pleader is entitled to relief").
A court must accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Varela v. Gonzales, 773 F.3d 704, 707 (5th Cir. 2014) (citation omitted). However, this tenet does not apply to legal conclusions. Iqbal, 556 U.S. at 678-79. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.
The Mississippi Products Liability Act ("MPLA"), Miss. Code. Ann. § 11-1-63, provides a remedy for individuals injured by a product. A plaintiff may travel under a theory that the product was defectively designed or defectively manufactured. Id. To recover under the MPLA on either theory, a plaintiff must prove in relevant part that: "(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and (iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought." Id. § 11-1-63(a)(ii)-(iii).
Additionally, a plaintiff seeking to establish that a product was defectively manufactured must show that when the product left the control of the manufacturer or seller, "it was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications." Id. § 11-1-63(a)(i)(1). To establish that a "product was designed in a defective manner," id. § 11-1-63(a)(i)(3), a plaintiff must prove that, at the time the product left the control of the manufacturer or seller:
Id. § 11-1-63(f).
The Complaint alleges that the door that fell on Davis was "defectively designed and manufactured" by Cloplay. Compl. [1-1] at 2. To state a defective design claim under the MPLA,
Here, Davis offers nothing more than a conclusory allegation that the door was "defectively designed," Compl. [1-1] at 2, and he does not identify any specific defect or even suggest the nature of the defect, see Adams, 2013 WL 1791373, at *2 (dismissing claims where plaintiff only alleged in a conclusory fashion that products were defective); Deese, 2012 WL 463722, at *3 (holding same where complaint was devoid of factual support); see also Mullen v. Bell Helicopter Textron, Inc., 1:15cv158, 2015 WL 11120331, at *1 (S.D. Miss. Aug. 17, 2015) (holding same). Nor does the Complaint allege the existence of any feasible design alternative. See Chatman v. Pfizer, Inc., 5:11cv69, 2013 WL 1305506 (S.D. Miss. March 28, 2013).
To state a claim that a product was defectively manufactured, plaintiffs must allege that the product "deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications." Deese, 2012 WL 463722, at *3 (quoting Miss. Code Ann. § 11-1-63(a)(i)(1)). Though the Complaint claims that the door was defectively manufactured, Compl. [1-1], it does not allege how the door deviated from Cloplay's specifications or from other doors it manufactured, Miss. Code Ann. §11-1-63(a)(1); Adams, 2013 WL 1791373, at *3 (complaint failed to state a claim for manufacturing defect where plaintiff did not allege how product deviated from specifications or other units).
In his Response [6], Davis adds that reasonable people "would agree that overhead doors should not" suddenly fall on their own. Resp. [6] at 2. This suggests that Davis believes that he has satisfied pleading requirements for an MPLA claim, essentially based on a theory of res ipsa loquitor. Without addressing whether the doctrine of res ipsa loquitor could apply to a claim under the MPLA, the Court is of the opinion that Davis has also not alleged sufficient facts to state a claim under that alternative theory. See id.
To establish a claim based on a theory of res ipsa loquitor:
Brown v. Baptist Memorial Hosp. DeSoto, Inc., 806 So.2d 1131, 1135 (Miss. 2002). Davis indicates that the door was located at a Walmart store in Pass Christian, Mississippi, but he has not alleged that the door was under the exclusive control of Cloplay, nor does he even assert that Cloplay had any continued control over the door. Thus, any argument that Davis has properly pled a claim under a theory of res ipsa loquitor is unavailing. See Adams, 2013 WL 1791373 at *5 n.2 (concluding that because at the time of an alleged accident, the instrumentality was not under the control or management of defendants, the theory of res ipsa loquitor was not properly pled).
Assuming that all facts as alleged by Plaintiff in the Complaint are true, Davis has not pled a plausible claim entitling him to relief under the MPLA.
In the final sentence of Davis' Response [6] to Cloplay's Motion [4] to Dismiss, he requests that the Court alternatively allow him the opportunity to amend his Complaint [1-1]. A court generally should not grant a motion to dismiss for failure to state a claim under Rule 12(b)(6) without first giving the plaintiff an opportunity to amend. Goldstein v. MCI WorldCom, 340 F.3d 238, 254-55 (5th Cir. 2003) (recognizing that discretion to deny leave to amend is limited because Rule 15 evidences a bias toward granting such leave). The Fifth Circuit has noted, however, that leave to amend is not automatic, id. at 254, and is properly denied where allowing an amendment would result in undue prejudice, the moving party has engaged in delay, or the proposed amendment would be futile, Forman v. Davis, 371 U.S. 178, 182 (1962); Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th Cir. 1992). Moreover, the Fifth Circuit has held that bare requests to amend contained in a response to a motion to dismiss do not constitute a proper motion to amend. Willard v. Humana Health Plan of Tx. Inc., 336 F.3d 375, 387 (5th Cir. 2003) ("[A] bare request in an opposition to a motion to dismiss—without any indication of the particular grounds on which the amendment is sought, cf. Fed. R. Civ. P. 7(b)—does not constitute a motion within the contemplation of Rule 15(a)." (citations and quotations omitted)).
In Goldstein v. MCI WorldCom, the Fifth Circuit affirmed a district court's denial of a request to amend where plaintiffs "tacked on a general curative amendment request at the end of their response in opposition to the defendant's motion to dismiss." 340 F.3d at 254. The Court reasoned that because the plaintiffs failed to demonstrate how they would cure the deficiencies in their pleading, proffer a proposed amended complaint, or suggest the existence of any additional facts that they did not initially plead, the district court's denial of the request to amend contained in the Response [6] [7] was not improper. Id. at 254-55; see McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002) (affirming denial of leave to amend where plaintiffs failed to file an amended complaint as a matter of right, submit a proposed amended complaint, or alert the court to the substance of any proposed amendment).
Davis fails to suggest in his Response [6] [7] to the Motion [4] to Dismiss how the alleged deficiencies in his Complaint could be cured, provide any facts to cure those deficiencies, or proffer a proposed complaint. See Goldstein, 340 F.3d at 254-55; Willard, 345 F.3d at 387; McKinney, 309 F.3d at 315. This request is not sufficient to constitute a motion to amend. See Willard, 336 F.3d at 387; Adams, 2013 WL 1791373, at *5 (finding that amendment would be futile where plaintiffs declare the sufficiency of their pleadings and state that at that stage, they have nothing more to add).
Davis did, however, later file a separate Motion [18] requesting leave to amend on January 3, 2019, however, this was more than six months after Cloplay filed its Motion [4] to Dismiss, over two months past the deadline for amendments to pleadings set by the Case Management Order, after the deadline for designating experts expired, and only a month before the close of discovery. Mot. [18] to Am.; Case Mgmt. Order [15]; Mot. [4]. With Davis' single-page Motion [18], he attached a proposed Amended Complaint [18-1] which clarified the facts of his case and included new causes of action. Proposed Am. Compl. [18-1]. The Magistrate Judge denied Plaintiff's Motion [18] because he did not submit a memorandum brief in support or attempt to explain what facts supported a finding of good cause to modify the case management deadlines at such a late date. Order [19]. Davis did not appeal the Magistrate Judge's Order [19], request reconsideration of the Order [19], or make any further attempt to amend or explain what circumstances existed to demonstrate good cause for such an untimely amendment.
Despite the lack of a request to review the Magistrate Judge's Order [19], the Court has reviewed it and is of the opinion that the Order [19] is not clearly erroneous or contrary to law. See Moore v. Ford Motor Co., 755 F.3d 802, 806 (citing Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A)) (holding that in reviewing a magistrate's pretrial order, a district court may set aside a "non-dispositive order" where it is clearly erroneous or is contrary to law). The record supports the Magistrate Judge's conclusion that Davis' Motion [18] to Amend was grossly untimely and that Davis did not even attempt to show good cause for the delay.
Federal Rule of Civil Procedure 16(b) applies to motions to amend submitted after a scheduling order's deadline has expired, and provides that such a deadline "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b); see Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003). Before the more liberal standard of Rule 15(a) applies to a district court's denial of leave to amend, a movant must show good cause for not meeting the deadline. Southwestern Bell, 346 F.3d at 546. The Fifth Circuit has enumerated four relevant factors to consider when determining whether good cause exists: "(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice." Id.
Davis has made no effort whatsoever to argue that good cause exists to amend his Complaint [1-1]. See Mot. [18] to Am. He offers no explanation for his failure to timely move for leave to amend. See id. It is apparent that the proposed amendments are important to Davis' case as they purport to add new causes of action upon which to seek relief and attempt to cure some of the deficiencies in his Complaint [1-1]. However, Cloplay would suffer substantial prejudice if Davis is allowed to assert new facts and claims against it almost eight months after the Complaint [1-1] was filed, after the deadline to designate experts expired, directly before the close of discovery, and almost four years after the alleged injuries occurred.
Defendant Cloplay asks this Court to strike Davis' Response [6] to its Motion [4] to Dismiss and Davis' Supporting Memorandum [5], and moves the Court for summary judgment in its favor. Mot. [9] to Strike; Mot. [20] for Summ. J. Because the Court finds that Defendant's Motion [4] to Dismiss should be granted, it need not consider Defendant's Motion [9] to Strike or its Motion [20] for Summary Judgment, and will deny them as moot.
Davis' allegations in the Complaint [1-1] are insufficient to state a claim under the MPLA. As such, Cloplay's Motion [4] to Dismiss should be granted and Davis' claims should be dismissed with prejudice.
