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Angell v. Allergan Sales, LLC

United States District Court, M.D. Florida, Jacksonville Division

August 22, 2019

ELIZABETH MICHELLE ANGELL, and BRETT ANGELL, her husband, Plaintiffs,
v.
ALLERGAN SALES, LLC, a foreign limited liability company, Defendant. ASHLEY J. HICKS, Plaintiff,
v.
ALLERGAN SALES, LLC, a foreign limited liability company, Defendant.

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on motions to dismiss in two related cases. Plaintiffs Elizabeth and Brett Angell, as well as Plaintiff Ashley J. Hicks bring related lawsuits against Defendant Allergan Sales, LLC (Allergan), stemming from Allergan's warranty program for its saline-filled breast implants. See Angell v. Allergan Sales, LLC, No. 3:18-cv-283-J-34JBT (Angell Action); Hicks v. Allergan Sales, LLC, No. 3:18-cv-283-J-34JBT (Hicks Action).[1] In both cases, Plaintiffs allege that plastic surgeons Loren Z. Clayman and Mark A. Clayman misused Allergan's warranty program to the detriment of their patients. Plaintiffs contend that Allergan knew of, agreed with, and participated in the Claymans' scheme. As such, Elizabeth Angell and Ashley Hicks (the Patients) assert claims against Allergan for aiding and abetting the Claymans' fraud/breach of fiduciary duty, and conspiracy.[2] See generally Second Amended Complaint (Hicks Action, Doc. 45; Hicks Complaint) (Angell Action, Doc. 44; Angell Complaint), both filed on September 20, 2018.[3] On October 4, 2018, Allergan filed a motion to dismiss in both cases. See Defendant Allergan Sales, LLC's Motion to Dismiss Plaintiff's Second Amended Complaint (Hicks & Angell Actions, Doc. 46; Motions). Plaintiffs filed responses in opposition to the Motions on October 25, 2018. See Amended Response to Motion to Dismiss Second Amended Complaint (Hicks & Angell Actions, Doc. 51; Responses). With leave of Court, Allergan filed replies in support of its Motions on November 16, 2018. See Allergan Sales, LLC's Reply in Support of its Motion to Dismiss Plaintiff's Second Amended Complaint (Hicks & Angell Actions, Doc. 54; Replies). Additionally, on June 20, 2019, the Court held oral argument on the Motions to Dismiss. See Minute Entry (Hicks & Angell Actions, Doc. 58; the Hearing), filed June 20, 2019; see also Transcript of Motion Hearing (Hicks & Angell Actions, Doc. 60; Tr.), filed June 25, 2019.

         Following oral argument, with leave of Court, the parties submitted supplemental briefing. See Plaintiffs' Supplemental Memorandum on Actual Knowledge (Hicks & Angell Actions, Doc. 59; Plaintiffs' Supplements), filed June 25, 2019; Allergan Sales, LLC's Response in Opposition to Plaintiffs' Supplemental Memorandum on Actual Knowledge (Hicks & Angell Actions, Doc. 63; Allergan's Supplements), filed June 28, 2019. In addition, Plaintiffs filed a motion for leave to file a third amended complaint. See Plaintiffs' Opposed Alternative Motion and Memorandum of Law for Leave to File Third Amended Complaint (Hicks & Angell Actions, Doc. 62; Motions to Amend), filed June 26, 2019. Allergan filed a response in opposition to the Motion to Amend on July 10, 2019. See Defendant Allergan Sales, LLC's Opposition to Plaintiffs' Opposed Alternative Motion for Leave to File Third Amended Complaint (Hicks & Angell Actions, Doc. 64; Responses on Amendment). Last, on July 25, 2019, Plaintiffs filed a notice of supplemental authority. See Plaintiff's Notice of Supplemental Authority (Hicks & Angell Actions, Doc. 65). Accordingly, these matters are ripe for review.

         I. Background[4]

         A. The Warranty

         This case arises out of Allergan's warranty program for Natrelle saline-filled breast implants manufactured by Allergan, Inc.[5] The standard version of the “ConfidencePlus Warranty” is included with all of Allergan's Natrelle saline-filled breast implants and covers “loss of shell integrity, resulting in implant rupture or deflation that requires surgical intervention, ” and “capsular contracture (Baker Grade III/IV) with Natrelle Gel implants that requires surgical intervention.” Second Amended Complaint ¶¶ 13-14. It includes lifetime coverage for the replacement of a ruptured implant and ten years of coverage for the replacement of a contralateral implant. Id. ¶ 14. Under the warranty, Allergan provides not only a replacement implant, but also $1, 200 toward the cost of the surgery to remove and replace the defective implant. Id. ¶ 15. For an additional $100, a patient can obtain the Premier Warranty, which provides lifetime coverage for both ruptured and contralateral implants. Id. ¶ 14. Under the Premier Warranty, Allergan provides the replacement implant and $2, 400 “for the cost of replacement/revision surgery.” Id. According to Plaintiffs, plastic surgeons Loren Z. Clayman, M.D. (Clayman Senior) and Mark A. Clayman, M.D. (Clayman Junior), through their medical practice, Loren Z. Clayman, M.D., P.A. (Clayman Practice), used this warranty program to defraud their patients and in doing so, breached their fiduciary duty to their patients. Plaintiffs bring the instant action against Allergan based on Allergan's purported knowledge, agreement, and assistance with the Claymans' fraud/breach of fiduciary duty. The details of the alleged scheme are as follows.

         B. The Clayman Practice

         According to the Second Amended Complaint, in the early 2000s, the Clayman Practice began marketing its breast augmentation services to patients of modest means. See Second Amended Complaint ¶ 19. The Clayman Practice attracts these patients by “charging less than any other plastic surgeons for augmentation mammoplasty procedures.” Id. ¶ 20. According to Plaintiffs, the Clayman Practice is able to charge these low rates by egregiously cutting corners in their surgical procedures. See Second Amended Complaint ¶ 21.[6] In addition, Plaintiffs allege that “[n]o later than the mid-2000s, ” Clayman Senior began falsely telling his breast augmentation patients that they had defective saline-filled breast implants and recommending unnecessary removal and replacement surgery. Id. ¶ 22. According to Plaintiffs, “Clayman Senior lied to his patients because he knew that most of them could not afford to pay for additional surgeries, but that by claiming that saline breast implants were ruptured, deflated, or leaking, he could seek to have the breast implant manufacturers pay for additional surgeries through their Warranties.” Id. When Clayman Junior joined the Clayman Practice in mid-2008, he adopted this practice as well and began making “an excessive or unusually high number of warranty claims for saline breast implants.” Id. Notably, by blaming the Patients' dissatisfaction with the results of their augmentation surgery on a defective implant, the Claymans induced the Patients to have additional surgeries with the Clayman Practice, covered by the warranty, rather than seek out a different plastic surgeon or pursue a medical negligence claim. See Hicks Complaint ¶ 54; Angell Complaint ¶ 55.

         Initially, the Clayman Practice purchased saline-filled breast implants from both Allergan (or its predecessor, Inamed), [7] and Mentor, Allergan's primary American competitor for breast implants. See Second Amended Complaint ¶ 26. However, Mentor discontinued sales of its breast implants to the Clayman Practice after receiving a disproportionately high number of warranty claims from the Claymans, which Mentor viewed as indicative of fraud. Id. ¶¶ 26-27. Specifically, Mentor became suspicious when the Clayman Practice “made approximately 40 warranty claims in the preceding year, which amounted to 30% of all saline breast implants the Clayman Practice purchased from Mentor.” Id. ¶ 26. Since this incident, the date of which is not alleged, Allergan “has been the exclusive supplier of breast implants to the Clayman Practice.” Id. ¶ 27.

         C. Ashley J. Hicks

         In March of 2014, Plaintiff Ashley J. Hicks underwent breast augmentation surgery with the Clayman Practice utilizing Allergan's Natrelle saline-filled breast implants. See Hicks Complaint ¶ 42. In the months that followed, Hicks twice returned to the Clayman Practice with concerns about her breasts, and on November 14, 2014, she underwent a second breast surgery with the Clayman Practice. Id. ¶¶ 43-45. When Hicks arrived for this second surgery, the Claymans had Hicks sign an informed consent form stating that she had a “‘Right Implant Deflation'” and would need to have both implants removed and replaced. Id. ¶ 45. The Claymans also had Hicks execute an Allergan warranty claim form which stated that “she had a deflation at her right breast implant, with ‘tissue @ valve.'” Id. ¶ 45. However, according to Hicks, “a preoperative photograph taken that day by the Claymans demonstrates that she did not have a rupture, deflation, or leak at either of her breast implants.” Id.[8] Nonetheless, in the November 14, 2014 operative report, Clayman Junior documented that the right implant was “‘found to have a leak at the valve with tissue and what appeared to be partial delamination of the valve, ” and the left implant was “found to be intact.” Id. ¶ 46. Both implants were removed and replaced with saline-filled Allergan implants. Id. Clayman Junior sent the warranty paperwork and two removed implants to Allergan, and Allergan later sent the Claymans a check for $2, 400 in response to the warranty claim. Id. ¶ 47. Notably, Allergan's laboratory analysis of the returned implants found “no evidence of a ‘loss of shell integrity, resulting in implant rupture or deflation that requires surgical intervention.'” Id. The Second Amended Complaint does not specify the date of the laboratory analysis such that it is unclear whether Allergan performed the laboratory analysis on the returned implants before or after it paid the warranty claim. Id.

         Due to a “substantial difference in size between her breasts, ” Hicks returned to the Clayman Practice on December 5, 2016. Id. ¶ 48. “Clayman Junior recommended another removal and replacement surgery due to deflation.” Id. Hicks scheduled this surgery for January 27, 2017, and Clayman Junior told her that it “would be at no cost under the Warranty.” Id. ¶ 49. However, prior to the surgery, Hicks decided to seek a second opinion from a different plastic surgeon and canceled her surgery with the Clayman Practice. Id. ¶ 50. Hicks underwent surgery with a different plastic surgeon on June 7, 2017, who removed the existing saline implants and replaced them with silicone breast implants. Id. ¶ 51.

         D. Elizabeth Michelle Angell

         Plaintiff Elizabeth Michelle Angell alleges a similar account of her experience at the Clayman Practice. See Angell Complaint ¶¶ 40-52. Angell initially consulted with Clayman Senior on June 12, 2008, regarding breast augmentation. Id. ¶ 40. “A surgery cost estimate form indicated a proposal to perform ‘Augmentation Mammoplasty areola' for $3, 000, plus an operating room charge of $750.” Id. Angell underwent surgery with the Claymans on October 6, 2010. Id. ¶ 41. On May 4, 2015, Angell returned to the Clayman Practice with significant pain and discomfort at her right breast. Id. ¶ 45. “Clayman Senior told her that her right breast implant was deflated and that both of her implants needed to be removed and replaced, but that the procedure would be performed at no cost to her.” Id. Angell and Clayman Senior signed a surgical estimate which states that “she had a ‘right breast-deflation,' for which she needed a bilateral implant replacement and crescentpexy at no charge to the patient.” Id. Angell underwent this second surgery on June 5, 2015. Id. ¶ 46. The surgical records state that Clayman Senior found the right implant “‘to have deflation approximately 40% (tissue/leak & valve)” and “‘rt. tissue on and around valve.'” Id. ¶ 47. He found the left implant intact. Id. Clayman Senior removed both implants and replaced them with Allergan saline implants. Id. ¶¶ 47-48.

         According to the Angell Complaint, “on or about” the date of the second surgery, the Claymans had Angell “sign warranty claim paperwork indicating that her right implant had a ‘[h]ole in valve' and/or ‘[p]articles in valve.'” Id. ¶ 49. Allergan paid the Claymans $1, 200, although Allergan's laboratory analysis of the returned implants found “no evidence of a ‘loss of shell integrity, resulting in implant rupture or deflation that requires surgical intervention.'” Id. As with the Hicks Complaint, it is unclear when Allergan conducted the laboratory analysis in relation to when it paid the warranty claim. Id. However, Angell's execution of the warranty claim form and Allergan's payment of the warranty claim are both alleged to have occurred “on or about June 5, 2015, ” the same date as the surgery. Id. ¶¶ 46, 49. As such, it appears unlikely that Allergan performed the laboratory analysis prior to paying the claim. Angell continued to experience problems with her breasts and on July 22, 2016, she “sought a second opinion from a different plastic surgeon, who opined that her breasts were asymmetric and continued to sag.” Id. ¶¶ 51-52. This surgeon recommended that Angell undergo “another surgery to remove and replace her implants with silicone implants.” Id. ¶ 52.

         E. Allergan

         According to Plaintiffs, Allergan knew that the Claymans were performing “unnecessary removal and replacement surgeries” in order to collect the warranty money. See id. ¶ 25.[9] Plaintiffs allege that Allergan nevertheless continued to pay these fraudulent warranty claims as a form of “kickback” or bribe to induce the Claymans to continue purchasing Allergan products. Id. ¶¶ 31-33. In support of their contention that Allergan knew of the Claymans' scheme, Plaintiffs rely on the following factual allegations. First, Plaintiffs allege that when Allergan received the warranty claim paperwork and returned breast implant(s), it would undertake a “Laboratory Analysis” on the returned implants “to determine the cause of a claimed rupture/deflation/leak” and generate a report of its findings. See id. ¶ 24. According to Plaintiffs, “[n]early every Laboratory Analysis report for saline filled breast implants returned by the Clayman Practice found no evidence of a ‘loss of shell integrity, resulting in implant rupture or deflation.'” Id. Nonetheless, Allergan paid the $1, 200 or $2, 400 warranty claim (depending on the type of warranty) to the Clayman Practice, for every warranty claim made by the Clayman Practice over the span of fifteen years. Id. According to the Second Amended Complaint, this amounts to a total of $8.96 million in warranty reimbursements for 5, 516 pairs of returned implants. See Second Amended Complaint, Ex. B.

         Of particular note, in the eight years between January 1, 2008, and December 31, 2015, the Clayman Practice's warranty claims rapidly increased. Id. In 2007, the Claymans submitted 76 warranty claims. In 2008, that number doubled to 150 warranty claims, increased to 261 claims in 2009, and then doubled again to 521 claims in 2010. Id. At their peak in 2014, the Claymans submitted 1, 057 warranty claims for a total of $1.77 million in reimbursements. Id. According to Plaintiffs, in that eight year period, “Allergan sold the Clayman Practice 11, 082 pairs of saline breast implants, ” and the “Clayman Practice made 5, 118 warranty claims for saline breast implants, which amounts to a failure rate of 46%.” Id. ¶ 30.[10] Thus, Plaintiffs assert that Allergan knew that the Claymans were lying to their patients based on: 1) the warranty claim forms showing that the Claymans told their patients that their implants were ruptured, deflated or leaking necessitating surgical removal and replacement, 2) Allergan's laboratory analyses which consistently showed that the returned implants were not actually defective, and 3) the volume of warranty claims submitted by the Clayman Practice evidencing a rate of failure statistically higher than shown in Allergan's own studies. See Responses at 1-2.

         Although unnecessarily paying millions of dollars to two doctors at one practice appears contrary to Allergan's own interests, Plaintiffs contend that Allergan actually had “a deep financial motive” to pay the Clayman Practice's warranty claims due to the volume of business Allergan received from the Claymans every year. Id. ¶ 31. According to Plaintiffs, the Clayman Practice is one of Allergan's top ten breast implant customers in Florida, and purchases “a host of other aesthetic products from Allergan, ” such that it is “essentially a ‘one supplier shop.'” Id. Indeed, Plaintiffs assert that the Clayman Practice is a “Diamond Level member of the Allergan Partner Privileges program for Allergan Aesthetics products (i.e., Natrelle, Botox, Latisse, Juvederm, Kybella, SkinMedica, Vivate, and CoolSculpting).” Id. ¶ 32. Plaintiffs allege that “when a nurse employed by the Clayman Practice asked Clayman Senior why he believed Allergan would keep paying his high volume of warranty claims without question, Clayman Senior told her, ‘I know they're going to pay them all because I'm a Diamond Level partner.'” Id. Thus, in Plaintiffs' view, “Allergan paid millions of dollars in false warranty claims to the Clayman Practice because it was making so much money in total sales of aesthetic products from the Clayman Practice.” Id. ¶ 33. Notably, Plaintiffs assert that “Allergan has never confronted Clayman Senior about his excessive warranty claims for saline breast implants.” Id. ¶ 28 (emphasis added). In contrast, Plaintiffs allege that in response to warranty claims from other plastic surgeons, Allergan demanded further proof that the “claimed ruptures, deflations, or leaks were not the result of actions by patients or surgeons.” Id. ¶ 34. Allergan did so “even though the other plastic surgeons made fewer than 5 saline breast implant warranty claims per year.” Id. Plaintiffs allege that the difference in treatment stems from the fact that these surgeons are not “one supplier shops” like the Clayman Practice. Id.

         In addition, Plaintiffs allege that Allergan pays the warranty claims with an “‘off-balance-sheet' method.” Id. ¶ 35. Plaintiffs explain this method as follows:

[T]o the best of the undersigned attorney's information and belief, Allergan pays breast implant warranty claims through Del Mar Indemnity Company, LLC, a captive insurance company created and owned by Allergan. When a manufacturer such as Allergan creates a captive insurance company, the manufacturer is provided a means of reclassifying otherwise taxable income from across its various divisions and subsidiaries as ‘premium payments' that go to the captive insurance company. The formerly taxable income that is reclassified as ‘premiums' then accumulates within the captive, making it, essentially, a very large ‘slush fund.' In the event that the manufacturer uses the captive insurance company to pay a ‘loss,' such as a warranty payment, the loss is not reflected in Allergan's balance sheets or filings with the Securities and Exchange Commission. In addition, because the captive is not a third-party company, Allergan is free to manipulate the claims payment process without outside interference.

See id. Plaintiffs also maintain that Allergan has a history of paying bribes or kickbacks to physicians for purchasing Allergan's products. Id. ¶¶ 36-39.[11] As such, Plaintiffs contend that Allergan was knowingly involved in the Claymans' scheme as “part of a larger course of conduct whereby the company's marketing plan includes bribing physicians.” Id. ¶ 39.

         Based on the foregoing, Plaintiffs initiated the instant actions against Allergan in state court. Allergan removed the cases to this Court on February 26, 2018, and Plaintiffs twice amended their pleadings thereafter. In the operative Second Amended Complaint, Angell and Hicks assert two claims against Allergan-(1) aiding and abetting fraud/breach of fiduciary duty, and (2) conspiracy. Additionally, in the Angell Action, Plaintiff Brett Angell brings a derivative loss of consortium claim against Allergan. Allergan moves to dismiss these claims as preempted under federal law. Allergan also contends that dismissal is warranted because Plaintiffs fail to allege sufficient facts to state a plausible claim for relief.

         II. Standard of Review

         In ruling on a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[, ]” the complaint should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A “plaintiff's obligation to provide the grounds of his entitlement to relief requires 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 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, ]” which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face[.]'” Id. at 678 (quoting Twombly, 550 U.S. at 570).

         In addition to the minimal pleading requirements outlined above, Rule 9(b) requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” “The particularity rule serves an important purpose in fraud actions by alerting defendants to the ‘precise misconduct with which they are charged' and protecting defendants ‘against spurious charges of immoral and fraudulent behavior.'” Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988) (quotation omitted). Thus, Rule 9(b) “‘ensures that the defendant has sufficient information to formulate a defense by putting it on notice of the conduct complained of . . . [and] protects defendants from harm to their goodwill and reputation.'” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1277 (11th Cir. 2006) (quotation omitted) (alterations in Wagner). Although “‘alternative means are also available[, ]'” the requirements of Rule 9(b) may be satisfied by specific allegations as to “‘date, time or place.'” See Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 972-73 (11th Cir. 2007) (quoting Durham, 847 F.2d at 1511). Thus, a complaint satisfies Rule 9(b) if it

sets forth “(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.”

Id. at 972 (quoting Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)). Nonetheless, “Rule 9(b) does not require a plaintiff to allege specific facts related to the defendant's state of mind when the allegedly fraudulent statements were made[, ]” and thus, for purposes of Rule 9(b), “it is sufficient to plead the who, what, when, where, and how of the allegedly false statements and then allege generally that those statements were made with the requisite intent.” Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008).

         III. Motions to Amend

         As stated above, following oral argument on the Motions to Dismiss, Plaintiffs filed Motions to Amend their pleadings. In the Motions to Amend, Plaintiffs maintain that the Second Amended Complaint is sufficient to state their claims, but “in the abundance of caution and in the alternative, ” seek leave to file a proposed third amended complaint in both of their cases. See Motions to Amend at 1. The proposed third amended complaint contains one substantive change, found in paragraph 34. As currently drafted, paragraph 34 states:

Other plastic surgeons report that in response to their saline breast implant warranty claims, Allergan demanded further proof that the claimed ruptures, deflations, or leaks were not the result of actions by patients or surgeons, even though the other plastic surgeons made fewer than 5 saline breast implant warranty claims per year. The key distinction between these other plastic surgeons and the Clayman Practice is that the other plastic surgeons were not “one supplier shop, ” and they purchase their aesthetic products (including saline breast implants) from more than one supplier.

See Second Amended Complaint ¶ 34. Plaintiffs request leave to add the following additional sentence, inserted after the word year: “Allergan has denied warranty claims by at least one large plastic surgery practice known to Plaintiffs' counsel, and discovery may reveal that Allergan has denied the warranty claims of many other plastic surgeons.” See Motions to Amend at 1-2, Ex. 1 ¶ 34.

         Rule 15(a)(1) establishes that “[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Thereafter, a party may amend its pleadings only upon leave of court or by obtaining written consent of the opposing party. See Rule 15(a)(2). The Rule provides that “[t]he court should freely give leave when justice so requires.” Id. As a result, “[t]here must be a substantial reason to deny a motion to amend.” Laurie v. Ala. Ct. of Crim. App., 256 F.3d 1266, 1269, 1274 (11th Cir. 2001) (per curiam). Substantial reasons justifying a court's denial of a request for leave to amend include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Maynard v. Bd. ofRegents of the Div. of Univs. of the Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F.3d ...


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