Thurmond v. Bayer Healthcare Pharmaceuticals, Inc.
Opinion of the Court
In this products liability action, Plaintiff-Appellant Jenna Thurmond appeals from the district court’s final order granting summary judgment in favor of Defendant-Appellee Bayer Healthcare Pharmaceuticals, Inc. (“Bayer”). Her complaint brought various state-law claims arising out of Bayer’s manufacture and distribution of the Mirena intrauterine contraception system (“Mirena IUS”), which-allegedly caused her injuries. On appeal, Thurmond argues that the district court: (1) abused its discretion by denying her motions to extend fact discovery and expert disclosure deadlines; (2) abused its discretion by denying her motion to amend her complaint; and (3) improperly granted summary judgment in favor of Bayer. After thorough review, we affirm.
We review a district court’s rulings on discovery motions for abuse of discretion. See Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir. 1997). Likewise, we “will only reverse a district court’s denial of a motion to amend in instances in which the district court has clearly abused its discretion.” Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1231 (11th Cir. 2008) (quotation omitted). The abuse-of-discretion standard of review is “extremely limited and highly deferential.” In re Clerici 481 F.3d 1324, 1331 (11th Cir. 2007) (quotation omitted). “Discretion means the district court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Betty K. Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (quotation omitted). We review a district court’s grant of summary-judgment de novo. . See Nat’l Fire Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003).
The essential facts are these. On March 20, 2014, Thurmond filed a complaint in federal district court alleging that her use of the Mirena IUS, a contraceptive device manufactured and designed by Bayer, caused her to develop pseudotumer cerebri (“PTC”), also known as idiopathic intracra-nial hypertension (“IIH”). Her symptoms included severe migraines, changes to her vision and hearing, vertigo, and head and neck pain. Thurmond asserted claims for negligence, design defect, failure to warn, strict liability, breach of implied warranty, breach of express warranty, negligent misrepresentation, fraudulent misrepresentation, and fraud by suppression and concealment.
On March 30, 2015, Thurmond filed a motion to extend the expert disclosure deadline, and on April 30 she filed a motion to amend her complaint to add foreign entities Bayer Oy and Bayer Pharma AG as defendants. Bayer moved for summary judgment on May 11, 2015. On August 4, 2015, the district court issued an order denying Thurmond’s motions to extend discovery and to amend her complaint, and granting Bayer’s motion for summary judgment on all counts. This appeal follows.
First, we find no merit to Thurmond’s argument that the district court abused its discretion by denying her motions to extend fact discovery and expert disclosure deadlines. The scheduling order set by the district court “may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). “[W]e have often held that a district court’s decision to hold litigants to the clear terms of its scheduling orders is not an abuse of discretion.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011). Thurmond submitted her first request for production on October 21, 2014, four months after the discovery schedule was entered. She did not initiate any depositions, or name any expert witnesses. Thurmond explained that further discovery would be necessary if additional defendants were added. But because the court was within its discretion to deny leave to amend her complaint, as discussed below, this request was properly denied. The district court granted one discovery deadline extension. It was not an abuse of discretion to deny a second.
We are also unconvinced by Thurmond’s claim that the district court abused its discretion by denying her motion to amend her complaint to add two Bayer foreign entities. A party may amend its pleading once as a matter of course -within 21 days after serving it, or 21 days after service of a responsive pleading or certain Rule 12 motions. Fed.R.Civ.P. 15(a)(1). “In all other cases, 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.P. 15(a)(2). “Nevertheless, a motion to amend may be denied on numerous grounds, such as undue delay, undue prejudice to the defendants, and futility of the amendment.” Carruthers v. BSA Advert., Inc., 357 F.3d 1213, 1218 (11th Cir. 2004) (quotation omitted). “Prejudice and undue delay are inherent in an amendment asserted after the close of discovery and after dispositive motions have been filed, briefed, and decided.” Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999), “[I]t is not an abuse of discretion for a district court to deny a motion for leave to amend following the close of discovery, past the deadline for amendments and past the deadline for filing dispositive motions.” Lowe’s Home Centers, Inc. v. Olin Corp., 313 F.3d 1307, 1315 (11th Cir. 2002).
Finally, we are unpersuaded by Thurmond’s argument that the district court improperly granted summary judgment in favor of Bayer. Summary judgment is appropriate where the pleadings and supporting materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “We draw all factual inferences in a light most favorable to the non-moving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). As relevant here, when the summary judgment movant does not bear the burden of proof at trial, the movant may show “that there is an absence of evidence to support the non-moving party’s case.” Doe v. Drummond Co., 782 F.3d 576, 603-04 (11th Cir. 2015) (quotation omitted), cert. denied, — U.S. -, 136 S.Ct. 1168, 194 L.Ed.2d 178 (2016). “If the movant shows that there is an absence of evidence, the non-moving party who bears the burden of proof at trial must contradict this showing by demonstrating that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion.” Id. at 604 (quotation omitted). “In the alternative, the non-movant may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.” Id. (quotation omitted).
In this appeal, Thurmond has conceded that she has “not attempted to argue the merits of the lower court’s ruling on granting summary judgment.” Reply Br. at 17. Thus, she has abandoned this issue, and it is not before us. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“the law is by now well settled in this Circuit that a legal claim or argument that has not been briefed before the court is deemed abandoned and -its merits will not be addressed.”).
AFFIRMED.
. In any event, even if we were to consider it, we could not conclude that the district court
Reference
- Full Case Name
- Jenna THURMOND v. BAYER HEALTHCARE PHARMACEUTICALS, INC.
- Status
- Published