Smith v. Zimmer US, Inc. et al

MOTION

N.D. Ill.April 28, 2016

Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GARY L. SMITH, Plaintiff, v. Zimmer US, Inc., Zimmer, Inc., Zimmer Holdings, Inc., Zimmer Surgical, Inc., Zimmer Daniel and Zimmer Daniel & Associates Defendant. Case Number: 1:16-cv-04717 PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT NOW COMES, the Plaintiff, GARY L. SMITH, by and through his attorneys, MEYERS & FLOWERS, LLC., and pursuant to Federal Rule of civil Procedure 15(a)(2) moves this Honorable Court for leave to file his First Amended Complaint. In support of this Motion, Plaintiff states as follows: 1. That the referenced matter is a personal injury action wherein GARY L. SMITH claims that he suffered injures due to design and/or manufacturing defects related to an artificial hip prosthesis that was implanted in his body on July 22, 2008. 2. On December 23, 2015, GARY L. SMITH, a citizen of Illinois, filed his Complaint at Law in the Circuit Court of Cook County, Illinois, against Zimmer US, Inc., Zimmer, Inc., Zimmer Holdings, Inc., Zimmer Surgical, Inc. who are all citizens of Delaware and licensed to do business in the State of Illinois (Zimmer US, Inc., Zimmer, Inc., Zimmer Holdings, Inc. and Zimmer Surgical, Inc. will herein be collectively referred to as “Zimmer”), Zimmer Daniel and Zimmer Daniel & Associates (collectively referred to as “Zimmer Daniel”) who are Illinois entities regarding severe and permanent injuries he sustained as a result of the Case: 1:16-cv-04717 Document #: 7 Filed: 04/28/16 Page 1 of 3 PageID #:69 Page 2 of 3 implantation of an artificial hip replacement system manufactured by Zimmer and distributed by Zimmer Daniel. 3. On April 27, 2016, Zimmer filed its Notice of Removal alleging that this controversy is subject to original federal court jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 which states in pertinent part that the “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between – (1) citizens of different states”. 4. Plaintiff now seeks leave to amend the Complaint at Law to add two counts; the first against Zimmer Daniel and the second against Zimmer Daniel & Associates. 5. Count VI against Zimmer Daniel involves allegations under the theory of negligence. 6. Count VII against Zimmer Daniel & Associates involves allegations under the theory of negligence. 8. Plaintiff’s request to amend his Complaint at Law and add Counts V and VI against Defendants ZIMMER DANIEL and ZIMMER DANIEL & ASSOCIATES is timely under the applicable rules. 8. A copy of Plaintiff’s First Amended Complaint at Law is attached hereto as Exhibit A. WHEREFORE, pursuant to Federal Rule of civil Procedure 15(a)(2) Plaintiff requests leave to file his First Amended Complaint at Law. Dated: April 28, 2016 Respectfully Submitted, /s/ Frank V. Cesarone Frank V. Cesarone, Esq. (#6307510) Case: 1:16-cv-04717 Document #: 7 Filed: 04/28/16 Page 2 of 3 PageID #:70 Page 3 of 3 fvc@meyers-flowers.com Meyers & Flowers, LLC 3 North Second Street, Suite 300 St. Charles, Illinois 60174 Tel. No.: (630)232-6333 ATTORNEY FOR PLAINTIFF Case: 1:16-cv-04717 Document #: 7 Filed: 04/28/16 Page 3 of 3 PageID #:71