United States District Court, E.D. Pennsylvania
MEMORANDUM RE: MOTION FOR LEAVE TO FILE AMENDED
personal injury case resulting from alleged
misrepresentations made during dental surgery, Plaintiff
seeks to amend his Complaint to add claims for:
• Violation of the Pennsylvania Unfair Trade Practices
and Consumer Protection Law, 73 P.S. Sec. 201-1-201-9.2
(“UTPCPL”) (Count IV);
• Fraudulent intentional misrepresentation (Count V);
• Negligent misrepresentation (Count VI).
(Mot., ECF 29.) Defendants oppose Plaintiff's Motion to
Amend, claiming that amendment would be futile. (Resp., ECF
32.) For the reasons that follow, Plaintiff's Motion to
Amend will be granted in part and denied in part.
February 13, 2018, Plaintiff Deon Williams visited dentist
Defendant Dr. Abraham Benshetrit at the Saltz Dental Center.
Plaintiff's Complaint is not specific as to the purpose
for this visit. Plaintiff alleges that Dr. Benshetrit advised
him that he needed a root canal, and attempted the procedure.
(Compl., ECF 1 ¶¶ 14 & 17). During the
procedure, Dr. Benshetrit was unable to get Plaintiff's
mouth numb and sent him home with antibiotics. (Id.
¶¶ 17 & 18).
February 20, 2018, Plaintiff returned to Dr. Benshetrit to
proceed with the root canal. (Id. ¶ 19). During
this visit, Plaintiff alleges that Dr. Benshetrit
“negligently and carelessly failed to locate the nerve
canals and perforated the tooth and the furcation” and
then “negligently and carelessly attempted to extract
tooth number 18 and was unable to do so.” (Id.
¶¶ 21 & 22.). Plaintiff alleges that prior to
the root canal, Dr. Benshetrit assured Plaintiff that he had
“years of experience and done hundreds of root canals
on similar teeth without issue or problems and that Williams
would be fine.” (Prop. Am. Compl., Mot. Ex. A ¶
28.) Plaintiff alleges that “tooth number 18 was
permanently damaged and required extraction and a bone graft
with implant/crown placement.” (Compl. ¶ 25.)
Court should grant leave to file an Amended Complaint under
Federal Rule of Civil Procedure 15(a) unless there is
“undue delay, bad faith, 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 In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
assert that amendment of Plaintiff's Complaint would be
futile. Futility “means that the complaint, as amended,
would fail to state claim upon which relief could be
granted.” Shane v. Fauver, 213 F.3d 113, 115
(3d. Cir. 2000). The standard used to assess futility is the
same as that under Federal Rule of Civil Procedure 12(b)(6).
Id. at 115. This standard requires that “a
complaint contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Taylor v. Pathmark Inc., 2013
WL 943359, at *2 (E.D. Pa. Mar. 12, 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The Parties' Contentions