Lumaghi v. Covidien LP

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

NANCY DOWD LUMAGHI, individually ) and as Personal Representative of the ) Estate of Peter Lumaghi, ) ) Plaintiff, ) ) vs. ) Case No. 4:21-cv-1311-MTS ) COVIDIEN LP, et al., ) ) Defendants. )

MEMORANDUM & ORDER

Before the Court is Defendants’ Motion to Dismiss, Doc. [28], and Plaintiff’s Motion for Leave to File Second Amended Complaint, Doc. [31]. Having considered the parties briefing and arguments on both motions, the Court finds that allowing Plaintiff to amend would not be futile. Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (“Denial of a motion for leave to amend on the basis of futility ‘means the district court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.’” (quoting Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008)); Streambend Properties III, LLC v. Sexton Lofts, LLC, 297 F.R.D. 349, 357 (D. Minn.), aff’d, 587 F. App’x 350 (8th Cir. 2014) (“Futility determinations utilize the Twombly ‘plausibility’ standard under Rule 12(b)(6).”). IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File Second Amended Complaint, Doc. [31], is GRANTED. The Court requests Plaintiff to file the Second Amended Complaint, and Defendants shall have the usual time to file any required response. See Fed. R. Civ. P. 15(a)(3). IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss, Doc. [28], is DENIED as MOOT. Dated this 14th day of July, 2022. “| / | re er as

MATTHEW T. SCHELP UNITED STATES DISTRICT JUDGE