Opinion
CIVIL ACTION NO. 12-1242
04-25-2013
AMY MCKINNEY, wife of and HARLEY KYLE MCKINNEY, on behalf of themselves and all those similarly situated v. COVIDIEN, INC.
ORDER AND REASONS
Presently before the Court is Defendant Covidien Inc.'s "Motion to Strike the Class Action Allegations from Plaintiffs' Amended Complaint" (Rec. Doc. 43). Considering applicable law, and the parties' submissions, IT IS ORDERED that Defendant's motion (Rec. Doc. 43) is GRANTED to the extent that the class allegations set forth in Plaintiffs' amended complaint (Rec. Doc. 37, ¶¶ IX - XI) are stricken.
In granting Defendant's motion, the Court notes that it previously instructed Plaintiffs that "[i]f they desire this matter to proceed as a class action, [they] also must amend their complaint to comply with requirements of Local Rule 23.1." See January 17, 2013 Order and Reasons (Rec. Doc. 34) (emphasis added); see also Rec. Doc. 35 (authorizing Plaintiffs to re-file motion to certify class action following amendment of their complaint in accordance with January 17, 2013 Order and Reasons). Despite this directive, and having had the opportunity to amend, the class action allegations in Plaintiffs' amended complaint - except for very generally defining the proposed class and providing minimal information regarding the qualifications of Plaintiffs' counsel - simply track the language of Rule 23 of the Federal Rules of Civil Procedure in the same fashion as the original complaint did. See Rec. Docs. 1 and 37. Otherwise, none of the additional explanatory allegations required by Local Rule 23.1 are included in the amended complaint. Accordingly, for the foregoing reasons, Plaintiffs shall be permitted to proceed herein only with respect to their individual claims.
Local Rule 23.1 of the Local Civil Rules of the United States District Court for the Eastern District of Louisiana provides, in pertinent part:
LR 23.1 Class Action
In any case sought to be maintained as a class action:
(A) The caption of the complaint must bear the designation, "Complaint-Class Action." The complaint must also:
1. Refer to the portions of FRCP 23 under which it is claimed that the suit is properly maintainable as a class action;
2. Make allegations thought to justify the maintenance of the claim as a class action, including, but not necessarily limited to:
a. the size and definition of the alleged class;3. The alleged questions of law or fact claimed to be common to the class; and
b. the basis upon which the plaintiff claims:
(i) to be an adequate representative of the class, or
(ii) if the class is composed of defendants, that those named are adequate representatives of the class;
4. In actions claimed to be maintainable as class actions under FRCP 23(b)(3), allegations that support the elements required by that subdivision.
New Orleans, Louisiana, this 25th day of April 2013.
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KURT D. ENGELHARDT
United States District Judge