In re Tyco Int’l Ltd MDL (02-352)

2003 DNH 230

• Court: District Court, D. New Hampshire
• Decided: December 29, 2003
• Docket: MD-03-1335-B
• Status: Published

Opinion

In re Tyco Int’l Ltd MDL (02-352) MD-03-1335-B 12/29/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

In re Tyco International, Inc. Multidistrict Litigation (MDL 1335 MDL DOCKET NO. 02-1335-B DERIVATIVE ACTION Civil N o . 02-352-B Opinion N o . 2003 DNH 230

O R D E R

Defendants contend that I should deny plaintiffs’ motion to

further amend the derivative complaint because the proposed

amendment would be futile. While I recognize that I have the

power to deny a motion to amend on this basis, see Hatch v . Dep’t

for Children, Youth and Their Families, 274 F.3d 1 2 , 18 (1st Cir.

2001), I am reluctant to do so here because the motion has been

filed at an early stage of the litigation, the proposed amendment

significantly changes the focus of the litigation, plaintiffs’

ability to proceed at all may well depend on whether the

amendment is permitted, the amended complaint is factually and

legally complex, and the amended claims are not frivolous.

Instead, I can more reliably address challenges to the amended claims by granting the motion to amend and permitting defendants

to file a new motion to dismiss that incorporates both their

challenges to the prior complaint (to the extent that they remain

viable in light of the amendment) and their challenges to

plaintiffs’ new allegations. Accordingly, I grant the motion to

amend (doc. n o . 4 6 ) , deny defendants’ motion to dismiss the prior

complaint (doc. n o . 51) without prejudice, and direct defendants

to file a new motion to dismiss the second amended complaint.

On or before January 8 , 2004, the parties shall agree on a

briefing schedule and submit a proposed order establishing

deadlines and page limits for memoranda addressing the motion to

dismiss.

SO ORDERED.

Paul Barbadoro Chief Judge

December 2 9 , 2003

cc: All Counsel of Record

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