Petition for Writ of Certiorari — Judith Frei, et al., Petitioners v. Taro Pharmaceuticals (USA) Inc.

No. _______

In The

Supreme Court of the United States

-------------------------- ʕ ---------------------------

JUDITH FREI, ET AL.,

Petitioners,

v.

TARO PHARMACEUTICALS (USA) INC.,

Respondent.

-------------------------- ʕ --------------------------

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

-------------------------- ʕ --------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------- ʕ --------------------------

E. Kirk Wood

Samuel C. Cole

Counsel of Record

SAM COLE

LEGAL SERVICES, PLLC

WOOD LAW FIRM, LLC

P. O. Box 382434

4421 Kelly Drive

Birmingham, AL 35238 Richardson, TX 75082

(205) 612-0243

(361) 649-2734

kirk@woodlawfirmllc.com samcolelegalservices@gmail.com

Counsel for Petitioners

Dated: October 29, 2021

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

i

QUESTION PRESENTED

Whether, consistent with Due Process and

Federal Rule of Civil Procedure 15, a court has

discretion to dismiss a plaintiff’s complaint under

Federal Rule of Civil Procedure 8(a) without leave to

replead when a plaintiff has not had an opportunity

to replead to address the court’s concerns, absent a

finding that there is “good reason” for not allowing the

plaintiff to replead?

ii

PARTIES TO THE PROCEEDING

Petitioners are plaintiffs in the district court

and appellants in the Second Circuit:

Plaintiff/Appellant – Judith Frei

Plaintiff/Appellant – Sandra Rhodes

Plaintiff/Appellant – Charles Rhodes

Plaintiff/Appellant – Shirley Hart

Plaintiff/Appellant – Ray Hubler

Plaintiff/Appellant – Marie Hubler

Plaintiff/Appellant – William Murphy

Plaintiff/Appellant – Bonnie Murphy

Plaintiff/Appellant – James Walz

Plaintiff/Appellant – Mary Beth Walz

Plaintiff/Appellant – Trio Caldwell

Plaintiff/Appellant – Beverly Caldwell

Plaintiff/Appellant – Albert Delsantro

Plaintiff/Appellant – Charlotte Delsantro

Plaintiff/Appellant – Anna Thomas

Plaintiff/Appellant – Charles David Smedley

Plaintiff/Appellant – Edward Frisco

Plaintiff/Appellant – Rebecca Frisco

Plaintiff/Appellant – Larry E. Robinson

Plaintiff/Appellant – Cecil Barkley

Plaintiff/Appellant – Nancy Miller

Plaintiff/Appellant – Larry Junkin

Plaintiff/Appellant – Arthur L. Church

Plaintiff/Appellant – Mable Church

Plaintiff/Appellant – Jacqueline Boyd

Plaintiff/Appellant – Cortis Boyd

Plaintiff/Appellant – Brian Sukenik

iii

Plaintiff/Appellant – Sandra White

Plaintiff/Appellant – Roger White

Plaintiff/Appellant – Mary Waters

Plaintiff/Appellant – Kevin Hilton

Plaintiff/Appellant – Clinton Humphrey

Plaintiff/Appellant – Tenna Humphrey

Plaintiff/Appellant – Bonnie Greene

Plaintiff/Appellant – Michael Hess

Plaintiff/Appellant – Sandra Bonekemper

Plaintiff/Appellant – Nancy Hagerman

Plaintiff/Appellant – Gary Melton

Plaintiff/Appellant – Dixie Melton

Plaintiff/Appellant – Christopher Freeman

Plaintiff/Appellant – Judith Freeman

Plaintiff/Appellant – Carolyn Sue Bean

Plaintiff/Appellant – Mark Thompson

Plaintiff/Appellant – Ada Duffy

Plaintiff/Appellant – Jefferie Harrison

Plaintiff/Appellant – Christen Harrison

Plaintiff/Appellant – Raniere Caserta

Plaintiff/Appellant – Couchita Caserta

Plaintiff/Appellant – Don Amburgey

Plaintiff/Appellant – Joyce Amburgey

Plaintiff/Appellant – Mona Simmons

Plaintiff/Appellant – Trina Owen

Plaintiff/Appellant – Rubie Hoda

Plaintiff/Appellant – Billy West

Plaintiff/Appellant – Mona Windham

Plaintiff/Appellant – Ronnie Windham

Plaintiff/Appellant – Jeanne Colborne

Plaintiff/Appellant – Tracie Shollenbarger

iv

Plaintiff/Appellant – William Shelton

Plaintiff/Appellant – Janice Shelton

Plaintiff/Appellant – Pink Jones

Plaintiff/Appellant – Annie Jones

Plaintiff/Appellant – Cynthia Skiles

Plaintiff/Appellant – Raymond Skiles

Plaintiff/Appellant – Earl Hines

Plaintiff/Appellant – Debra Hines

Plaintiff/Appellant – James Skinner

Plaintiff/Appellant – David Whitlock

Plaintiff/Appellant – Jacqueline Whitlock

Plaintiff/Appellant – Connie Luye

Plaintiff/Appellant – Billy Karr

Plaintiff/Appellant – Robyn Garcia

Plaintiff/Appellant – Diane Mancinelli

Plaintiff/Appellant – Charles Hershiser

Plaintiff/Appellant – Mary Frances Hershiser

Plaintiff/Appellant – Shelby Campbell

Plaintiff/Appellant – Penny Watson

Plaintiff/Appellant – Antonio Burdier

Plaintiff/Appellant – Carmen Fernandez

Plaintiff/Appellant – Benjamin Lucas

Plaintiff/Appellant – Carla Ellis

Plaintiff/Appellant – Kelly Roberts

Plaintiff/Appellant – Rita Pennington

Plaintiff/Appellant – Jane Starnes

Plaintiff/Appellant – Linda Lanier

Plaintiff/Appellant – Harsharan Sandhu

Plaintiff/Appellant – James Thomas

Plaintiff/Appellant – Barbara Walker

Plaintiff/Appellant – David Sabo

v

Respondent Taro Pharmaceuticals (USA) Inc.

was the defendant in the district court and the

appellee in the Second Circuit.

STATEMENT OF RELATED CASES

Bennett, et al. v. Teva Pharmaceuticals, et al., No. 192126. U.S. District Court, District of Delaware.

Dismissal entered March 2, 2021.

Bennett, et al. v. Teva Pharmaceuticals, et al., No. 211642. U.S. Court of Appeals for the Third Circuit.

Burns, et al. v. Mayne Pharma, et al., No. 20-248.

U.S. District Court, District of Delaware.

Dismissal entered March 18, 2021.

Collette v. Wyeth Pharmaceuticals, et al., No. 16-1034,

U.S. District Court, Northern District of California.

Judgment entered June 22, 2020.

Collette v. Wyeth Pharmaceuticals, et al., No. 2016406, U.S. Court of Appeals for the Ninth Circuit.

Mandate issued Aug. 16, 2021.

Cook v. Par Pharmaceutical, et al., No. 15-529, U.S.

District Court, Northern District of Alabama.

Dismissal Order entered April 24, 2020.

Cook v. Par Pharmaceutical, et al., No. 20-11926, U.S.

Court of Appeals for the Eleventh Circuit.

Mandate issued March 9, 2021.

Garcia v. Zydus Pharmaceuticals, et al., No. 17-412,

U.S. District Court, Southern District of Texas.

Judgment entered May 25, 2017.

vi

In Re: Amiodarone Cases – No. JCCP 04956. Superior

Court of California, County of Alameda. Order

entered Jan. 14, 2019.

In Re: Amiodarone Cases – No. A157035. California

Court of Appeals, First Appellate District, Division

Two. Remittitur issued Sept. 29, 2020.

In Re: Amiodarone Cases – No. JCCP 04956. Superior

Court of California, County of Alameda. Order

entered June 11, 2019.

In Re: Amiodarone Cases – No. A158160. California

Court of Appeals, First Appellate District, Division

Two. Remittitur issued Sept. 29, 2020.

In Re: Amiodarone Cases – No. JCCP 04956. Superior

Court of California, County of Alameda. Order

entered Dec. 2, 2019.

In Re: Amiodarone Cases – No. A159522. California

Court of Appeals, First Appellate District, Division

Two. Remittitur issued Sept. 29, 2020.

In Re: Amiodarone Cases – No. JCCP 04956. Superior

Court of California, County of Alameda. Order

entered Sept. 8, 2020.

In Re: Amiodarone Cases – No. A161023. California

Court of Appeals, First Appellate District, Division

Two.

In Re: Amiodarone Cases – No. JCCP 04956. Superior

Court of California, County of Alameda. Order

entered May 22, 2020.

In Re: Amiodarone Cases – No. A161762. California

Court of Appeals, First Appellate District, Division

Two.

vii

Jankowski, et al. v. Zydus Pharmaceuticals, et al., No.

20-2458. U.S. District Court, District of New Jersey.

Jordan, et al. v. Teva Pharmaceuticals, et al., No. 201209. U.S. District Court, District of Delaware.

Dismissal entered June 30, 2021.

Jordan, et al. v. Teva Pharmaceuticals, et al., No. 212304. U.S. Court of Appeals for the Third Circuit.

McDaniel v. Upsher-Smith Pharmaceuticals, et al.,

No. 16-2604, U.S. District Court, District of

Tennessee. Dismissal Order entered May 25, 2017.

McDaniel v. Upsher-Smith Pharmaceuticals, et al.,

No. 17-5741, U.S. Court of Appeals for the Sixth

Circuit. Mandate issued Aug. 10, 2018.

McDaniel v. Upsher-Smith Pharmaceuticals, et al.,

No. 19-1246, Supreme Court of the United States.

Petition for Writ of Certiorari denied Oct. 6, 2020.

Medford, et al. v. Eon Labs, et al., No. 20-412. U.S.

District Court, District of New Jersey.

Polt v. Sandoz, et al., No. 16-2362, U.S. District Court,

Eastern District of Pennsylvania. Judgment entered

May 26, 2020.

Polt v. Sandoz, et al., No. 20-2125, U.S. Court of

Appeals for the Third District. Dismissed March 10,

2021.

Roncal, et al. v. Aurobindo Pharma USA, et al., No.

20-2643. U.S. District Court, District of New Jersey.

Stelly v. Zydus Pharmaceuticals, et al., No. 20-570.

U.S. District Court, Western District of Louisiana.

viii

Villarreal v. Taro Pharmaceuticals, et al., No. 17-35.

U.S. District Court, Southern District of Texas.

Vining, et al. v. Zydus Pharmaceuticals, et al., No. 2013439. U.S. District Court, District of New Jersey.

Walsh, et al. v. Upsher-Smith Laboratories, et al., No.

20-6531. District Court, State of Minnesota, County

of Hennepin.

ix

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED CASES ....................... v

TABLE OF CONTENTS............................................ ix

TABLE OF AUTHORITIES ...................................... xi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

RELEVANT CONSTITUTIONAL,

REGULATORY, & STATUTORY PROVISIONS ...... 1

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 2

A.

Background facts ........................................ 2

B.

The district court holds that

Plaintiffs’ failure-to-warn-viaMedication-Guide claims is

preempted and does not permit

leave to replead, because repleading

would be futile ............................................ 3

C.

The Second Circuit affirms, holding

that Plaintiffs’ failure-to-warn-viaMedication-Guide claim is

preempted ................................................... 4

D.

Proceedings after decision .......................... 4

x

REASONS FOR GRANTING THE WRIT ................. 5

I.

The Second Circuit’s Decision

Implicates Important Constitutional

Issues That Have Not Been Settled

by this Court ............................................... 5

II.

The Question Presented Is

Important and Recurring ........................... 8

CONCLUSION ........................................................... 9

APPENDIX:

Unpublished Summary Order of

The United States Court of Appeals

For the Second Circuit

entered April 20, 2021 .............................. 1a

Opinion and Order of

The United States District Court

For the Southern District of New York

Re: Granting Motion to Dismiss

entered March 10, 2020 .......................... 10a

Judgment of

The United States District Court

For the Southern District of New York

entered March 11, 2020 .......................... 32a

Order of

The United States Court of Appeals

For the Second Circuit

Re: Denying Petition for Panel Rehearing and

Rehearing En Banc

entered June 21, 2021 ............................ 35a

U.S. CONST. amend. V ....................................... 37a

Fed. R. Civ. P. 15 ............................................... 38a

xi

TABLE OF AUTHORITIES

Page(s)

CASES

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .......................................... 8

Day v. McDonough,

547 U.S. 198 (2006) .......................................... 6

Foman v. Davis,

371 U.S. 178 (1962) .......................................... 6

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982) ...................................... 5, 6

McCarthy v. Dun & Bradstreet Corp.,

482 F.3d 184 (2d Cir. 2007) ............................. 6

Monahan v. N.Y.C. Dep’t of Corr.,

214 F.3d 275 (2d Cir. 2000) ......................... 6, 7

Societe Internationale Pour Participations v. Rogers,

357 U.S. 197 (1958) ...................................... 2, 6

Spiegel v. Bekowies,

669 F. App’x 38 (2d Cir. 2016) ......................... 6

Stelly v. Zydus Pharm. United States,

No. 6:20-CV-00570, 2021 U.S. Dist.

LEXIS 56380 (W.D. La. 2021) ......................... 7

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. V ..................................... 1, 2, 5, 6

U.S. CONST. amend. XIV ............................................. 5

xii

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

28 U.S.C. § 1332.......................................................... 3

RULES

Fed. R. Civ. P. 8 ................................................ passim

Fed. R. Civ. P. 8(a) ....................................................... i

Fed. R. Civ. P. 15 .............................................. passim

Fed. R. Civ. P. 15(c) .................................................... 4

U.S.C.S. SUPREME CT. R. 13(1) ................................... 5

U.S.C.S. SUPREME CT. R. 13(3) ................................... 5

REGULATION

21 C.F.R. § 208.24 ................................................... 4, 7

1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition this Court for

writ of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet.App.1a)

is reported at 844 Fed. Appx. 444. The opinion of the

district court dismissing Plaintiffs’ claims based on

preemption (Pet.App.10a) is reported at 443 F. Supp.

3d 456.

JURISDICTION

The judgment of the court of appeals was

entered on April 20, 2021. The court of appeals denied

rehearing and rehearing en banc on June 21, 2021.

(Pet.App.35a). This Court has jurisdiction under 28

U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL,

REGULATORY, & STATUTORY PROVISIONS

This case involves the Due Process Clause of

the Fifth Amendment of the United States

Constitution and Federal Rule of Civil Procedure 15.

(Pet.App.37a-40a)

INTRODUCTION

This Court should grant certiorari to address

the important question of constitutional law

presented here.

The Second Circuit dismissed Plaintiffs’ claims

as inadequately pleaded under Rule 8 of the Federal

Rules of Civil Procedure on a basis Defendant had not

2

raised and the District Court had not addressed. The

Second Circuit did not grant Plaintiffs an opportunity

to replead, even though Plaintiffs were ready, willing,

and able to do so to address any technical problems

with their pleading. The Second Circuit also did not

find that there was no “good reason” to allow

repleading.

This Court has long recognized that a cause of

action is a property right protected by constitutional

Due Process. Refusing Plaintiffs an opportunity to

replead without following Rule 15 of the Federal

Rules of Civil Procedure violates Plaintiffs’ Due

Process rights.

This Court should intervene to clarify that

“[t]he provisions of [Rule 15] which are here involved

must be read in light of the provisions of the Fifth

Amendment that no person shall be deprived of

property without due process of law.” Societe

Internationale Pour Participations v. Rogers, 357 U.S.

197, 209 (1958).

STATEMENT OF THE CASE

A.

Background facts

Plaintiffs’ doctors diagnosed them with nonlife-threatening atrial fibrillation. (Pet.App.15a).

Under Defendant’s influence, the doctors prescribed

them amiodarone tablets to treat their atrial

fibrillation. (Id.) They filled their prescriptions with

Defendant’s amiodarone at various pharmacies. (Id.)

Because they took amiodarone, they suffered severe

and debilitating injuries. (Id.)

The FDA requires manufacturers to ensure

consumers receive a warning called a “medication

3

guide.” But Plaintiffs did not receive medication

guides when they filled their prescription, because

Defendant did not provide sufficient medication

guides (or the means of producing them) to the

distributer or to the pharmacies where they filled

their prescriptions. (Pet.App.22a-23a.) Had Plaintiffs

received medication guides—which would have been

adequate warnings under state law—they would not

have taken amiodarone. (Id.) In failing to ensure

Plaintiffs received medication guides, Defendant fell

short of its duty to warn under state law. Although

the learned intermediary doctrine can be a defense

under some circumstances, several of Plaintiffs’ home

states do not recognize the learned intermediary

doctrine under these circumstances.

In their complaint, Petitioners alleged

wrongful death based on Defendant’s failure to warn

when it failed to ensure Plaintiffs received a

medication guide and misled their doctors. (Id.)

B.

The district court holds that Plaintiffs’

failure-to-warn-via-Medication-Guide

claims is preempted and does not permit

leave to replead, because repleading

would be futile.

The district court had diversity jurisdiction

under 28 U.S.C. § 1332. The district court held

that Plaintiffs’ failure-to-warn claim—paralleling

Defendant’s failure to provide a medication guide in

accordance with FDA regulations—were preempted.

It reasoned that the specific requirement to provide a

medication guide is found in the FDCA. (Pet.App.23a).

On the other hand, Plaintiffs had not cited a specific

requirement to provide a medication guide under

state law. (Id.) Instead, Plaintiffs relied on the state

4

tort principle of negligent failure to warn. “Although

plaintiffs couch their failure to warn claims in

traditional state tort law, it is clear the existence of

the FDA’s medication guide regulation is the

gravamen of these claims.” (Id.) The court based this

conclusion on the fact that plaintiffs referenced

medication guides 400 times in their complaint.

(Pet.App.24a) The court did not perform a choice-oflaw analysis even though several of Plaintiffs’ states

do not recognize the learned intermediary doctrine

that undergirded the district court’s holding.

(Pet.App.10a-31a)

C.

The Second Circuit affirms, holding

that Plaintiffs’ failure-to-warn-viaMedication-Guide claim is preempted.

The Second Circuit affirmed on different

ground. It held that Plaintiffs had not adequately

pleaded their failure-to-warn claims under Rule 8 of

the Federal Rules of Civil Procedure. Specifically, it

held that Plaintiffs failed to plead an adequate factual

basis for their failure-to-warn claims, because the

complaint “lacks any allegation that Taro violated the

minimal requirements of § 208.24” or that “Taro

violated [a] hypothetical enhanced duty” in state law.

(Pet.App.7a) In particular, Plaintiffs did not plead

that Taro failed to provide the “means to produce”

Medication Guides. The court did not grant Plaintiffs

an opportunity to replead and did not discuss Rule

15(c) of the Federal Rules of Civil Procedure.

D.

Proceedings after decision.

Plaintiffs timely moved for rehearing en banc,

arguing that they should have received an

opportunity to replead. On June 21, 2021, the

5

Second Circuit rejected their motion for rehearing.

(Pet.App.35a) On October 29, 2021, Plaintiffs timely

filed this petition for certiorari. See USCS SUPREME

CT R 13(1), (3) (petition for certiorari must be filed

within 90 days of the denial of a petition for

rehearing); Order List: 594 United States, 2021 U.S.

LEXIS 3591, at *1 (July 19, 2021) (extending time to

file to 150 days for judgments or orders rendered

before July 19, 2021).

REASONS FOR GRANTING THE WRIT

I.

The Second Circuit’s Decision Implicates

Important Constitutional Issues That

Have Not Been Settled by this Court.

The Second Circuit’s summary order affirmed

dismissal of Plaintiffs’ failure-to-warn claims under

Rule 8, finding that Plaintiffs did not plausibly plead

facts supporting their claims. It did not, however, find

that repleading would be “futile” or find any “good

reason” to deny repleading.

Thus, Plaintiffs request that this Court

consider whether, consistent with Due Process and

Federal Rule of Civil Procedure 15, a court can deny

leave to replead when a plaintiff has not had an

opportunity to replead to address the court’s concerns,

absent a finding that there is “good reason” for not

allowing the plaintiff to replead.

This Court has held that “a cause of action is a

species of property protected by the Fourteenth

Amendment’s” and the Fifth Amendment’s Due

Process Clause. Logan v. Zimmerman Brush Co., 455

U.S. 422, 428 (1982). “[F]or example—where a

plaintiff’s claim had been dismissed for failure to

6

comply with a trial court’s order—the Court read the

‘property’ component of the Fifth Amendment’s Due

Process Clause to impose ‘constitutional limitations

upon the power of courts, even in aid of their own

valid processes, to dismiss an action without affording

a party the opportunity for a hearing on the merits of

his cause.’” Id. (quoting Societe Internationale Pour

Participations v. Rogers, 357 U.S. 197, 209 (1958)).

Rule 15 of the Federal Rules of Civil Procedure

provides that leave to amend a party’s pleading “shall

be freely given when justice so requires.” FED. R. CIV.

P. 15; see also Foman v. Davis, 371 U.S. 178, 182

(1962); see also Day v. McDonough, 547 U.S. 198, 209

(2006). “The Rule reflects … the most important

principles behind the Federal Rules,” including “that

‘mere technicalities’ should not prevent cases from

being decided on the merits.” Monahan v. N.Y.C. Dep’t

of Corr., 214 F.3d 275, 283 (2d Cir. 2000) (quoting

Foman, 371 U.S. at 182).

Accordingly, a court has discretion to deny

leave to re-plead only “for good reason, including

futility, bad faith, undue delay, or undue prejudice to

the opposing party.” McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 200 (2d Cir. 2007); Monahan, 214

F.3d at 283.

Here, the district court dismissed Plaintiffs’

claims as preempted. It is, of course, futile to replead

preempted claims. See Spiegel v. Bekowies, 669 F.

App’x 38, 39 (2d Cir. 2016). At the district court,

Plaintiffs fully addressed the only Rule 8 argument

that Defendant made (which was different from the

Second Circuit’s conclusion) and requested leave to

re-plead in the event the district court dismissed

under Rule 8. The Second Circuit, however, did not

7

address preemption or the learned intermediary

doctrine in its summary order.

Instead, it held that Plaintiffs failed to plead an

adequate factual basis for their failure-to-warn

claims, because the complaint “lacks any allegation

that Taro violated the minimal requirements of

§ 208.24” or that “Taro violated [a] hypothetical

enhanced duty” in state law. (Pet.App. 7a).

The Second Circuit did not find that there was

“evidence of undue delay, bad faith or dilatory motive

on the part of the movant, undue prejudice to the

opposing party, or futility” in the record. Monahan,

214 F.3d at 283.

In fact, Plaintiffs could easily remedy these

defects in a new, good faith complaint. Therefore,

repleading would not be futile. If they had been

granted an opportunity to replead, Plaintiffs would

have alleged that Defendant did not provide

Medication Guides to pharmacies or distributors or

the means to produce Medication Guides. Plaintiffs

would also allege that Defendants’ distribution

methods were inadequate under state law because

they did not even attempt to distribute Medication

Guides. As a district court recently held in an

Amiodarone case applying Louisiana law, “The

adequacy of [a generic drug manufacturer’s]

distribution methods is a factual question which

should be addressed after discovery.” Stelly v. Zydus

Pharm. United States, No. 6:20-CV-00570, 2021 U.S.

Dist. LEXIS 56380, at *21-22 (W.D. La. 2021).

Repleading would also not prejudice Defendant or

cause undue delay, because this case remains at the

motion-to-dismiss stage.

8

Furthermore, as Plaintiffs explained in their

motion for reconsideration, Defendants did not raise

the arguments accepted by the Second Circuit and the

district court did not address them.

In short, Plaintiffs could easily address the

garden-variety pleading defects raised by the panel in

an amended complaint. By refusing to allow Plaintiffs

an opportunity to amend, the Second Circuit violated

Rule 15 of the Federal Rules of Civil Procedure and

Plaintiffs’ Due Process rights.

II.

The Question Presented Is Important

and Recurring.

Until this Court clarifies the constitutional

requirements of Due Process and Rule 15 of the Civil

Rules of Procedure in dismissing a complaint for

inadequate pleading, this problem is likely to reoccur

continually.

To Plaintiffs’ knowledge, this Court has never

specifically addressed the constitutional limitations

on dismissal under Rule 8 and the interplay between

Due Process and Rule 15. In the Court’s seminal

decision on Rule 8, Ashcroft v. Iqbal, for instance, the

Court remanded for the Court of Appeals to “decide in

the first instance whether to remand to the District

Court so that respondent can seek leave to amend his

deficient complaint.” 556 U.S. 662, 687 (2009).

Here, the Second Circuit dismissed Plaintiffs’

claims for inadequate pleading without granting an

opportunity to replead or even addressing Rule 15. It

is not unusual for a first complaint to be deficient. If

the Second Circuit’s decision stands, it may create an

9

insurmountable procedural obstacle to Plaintiffs

seeking to vindicate their rights in federal courts.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: October 29, 2021

Respectfully submitted,

By: /s/ E. Kirk Wood

E. KIRK WOOD

Counsel of Record

WOOD LAW FIRM, LLC

P. O. Box 382434

Birmingham, AL 35238-2434

Telephone: (205) 612-0243

Facsimile: (866) 747-3905

kirk@woodlawfirmllc.com

SAMUEL C. COLE

SAM COLE LEGAL SERVICES, PLLC

4421 Kelly Drive

Richardson, TX 75082

Telephone: (361) 649-2734

samcolelegalservices@gmail.com

Counsel for Petitioners