United States District Court, S.D. Mississippi, Northern Division
T. WINGATE UNITED STATES DISTRICT COURT JUDGE.
THIS COURT are the following motions: Defendant Awesome
Products, Inc.’s Motion to Dismiss Plaintiff’s
Complaint [Docket no. 11]; Plaintiff’s
Motion to Amend Complaint [Docket no. 27];
and Defendant Awesome Products, Inc’s Motion to Strike
Plaintiff’s Untimely Rebuttal to the Memorandum
Opposition to Plaintiff’s Motion to Amend Complaint
[Docket no. 34].
25, 2018, Plaintiff Elaine Fields (“Plaintiff”)
filed this action against Defendants Dollar Tree Stores,
(“Dollar Tree”) and Awesome Products Inc.
(“Awesome Products”) in the Circuit Court of
Hinds County, Mississippi, seeking monetary damages for
personal injuries sustained by Plaintiff while shopping at a
Dollar Tree Store. Plaintiff’s Complaint alleged two
causes of action: negligence and res ipsa
August 20, 2018, Dollar Tree removed this case pursuant to 28
U.S.C. § 1332 on the basis of diversity jurisdiction.
[Docket no. 1]. Awesome Products consented to the removal of
this action. [Docket no. 9].
September 14, 2018, Awesome Products filed its motion to
dismiss Plaintiff’s Complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure
[Docket no. 26]. Specifically, Awesome Products asserted that
Plaintiff’s common-law negligence claims were barred by
the Mississippi Products Liability Act (“MPLA”),
and that Plaintiff had failed to plead specific facts that
would allow recovery against Awesome Products under the MPLA.
September 28, 2018, Plaintiff, instead of filing a response
to Awesome Products’ motion to dismiss, filed a motion
to amend her Complaint to include causes of action under the
MPLA. [Docket no.27]. Plaintiff’s motion also sought to
reduce the amount of damages sought in her Complaint to less
than $75, 000. Plaintiff’s request to reduce her
monetary demand, if granted, would have stripped this Court
of diversity jurisdiction. Awesome Products opposed
Plaintiff’s motion to amend [Docket no. 28], asserting
that Plaintiff’s proposed Amended Complaint still
failed to establish a right to recovery against Awesome
Products, and that Plaintiff’s post-removal reduction
of her damages demand was “too late”.
Id. Awesome Products filed its opposition motion and
brief on October 4, 2018.
October 31, 2018, Plaintiff filed an untimely Reply [Docket
no. 32] to Awesome Products’ memorandum opposing her
motion to amend. Plaintiff, in her Reply, withdrew her
request to reduce the amount of damages sought.
Products now petitions this Court to strike Plaintiff’s
Reply as untimely. [Docket no. 32].
Plaintiff’s Motion to Amend Complaint
Rule of Civil Procedure 15(a) directs that leave to amend
“shall be freely given when justice so requires.”
Dussoy v. Gulf Coast Investment Corp., 660 F.2d.
594, 598 (5th Cir. 1981). The Fifth Circuit explains that
“unless there is substantial reason to deny leave to
amend, the discretion of the district court is not broad
enough to permit denial.” Id. Plaintiff, in
the present case, states that she “inadvertently failed
to expressly assert an MPLA claim against Awesome
Products.” [Docket no. 27, p. 3]. Plaintiff seeks to
remedy this inadvertence by asserting a MPLA claim against
Awesome Products in her Amended Complaint. Id.
points to Forman v. Davis, 371 U.S. 178, 83, S.Ct.
227, 9 L.Ed.2d 222 (1962), wherein the United States Supreme
Court allowed a plaintiff to amend his complaint even though
the proposed amendment changed the theory of that
plaintiff’s case. This Court is persuaded that like the
Forman plaintiff, Plaintiff herein should be granted
leave to amend her Complaint to include a MPLA claim against
Court further finds that Plaintiff’s Motion to Amend
Complaint should be granted because this case is still in its
infancy; no discovery has been conducted in the matter and
Awesome Products has ...