Shelton v. Johnson & Johnson et al

MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim

W.D.N.C.October 6, 2016

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION BRENDA SHELTON, Plaintiff, vs. JOHNSON & JOHNSON, ET AL., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 5:16-cv-159-RLV-DSC DEFENDANT IMERYS TALC AMERICA, INC.’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO STATE A CLAIM Defendant Imerys Talc America, Inc. (“Imerys”), by its attorneys, files this Motion to Dismiss Plaintiff’s claims for lack of personal jurisdiction and failure to state a claim. Plaintiff’s claims should be dismissed for want of personal jurisdiction because Plaintiff cannot establish either specific or general jurisdiction for her claims against Imerys. Exercising personal jurisdiction over Imerys would violate Imerys’ due process rights. Alternatively, based on the face of the Complaint, Plaintiff’s claims against Defendants are time-barred. Therefore, they should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Additionally, the Court should dismiss Plaintiff’s fraud, fraudulent concealment, negligent misrepresentation, and unfair and deceptive trade practices claims for failure to state a claim upon which relief can be granted. These claims are not pleaded with sufficient particularity and should be dismissed pursuant to Federal Rules of Civil Procedure 8(a)(2) and Case 5:16-cv-00159-RLV-DSC Document 20 Filed 10/06/16 Page 1 of 3 2 12(b)(6) and Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In support of its Motion to Dismiss, Imerys relies on the attached Memorandum in Support, which is incorporated by reference herein. For the reasons set forth in the Memorandum, Imerys respectfully requests that the Court grant this Motion to Dismiss. Respectfully submitted, /s/ Thomas A. Packer________________________ NC Bar No. 45183 GORDON & REES LLP 421 Fayetteville Street, Ste. 330 Raleigh, North Carolina 27601 Telephone: (919) 787-4555 Facsimile: (919) 741-5840 Email: tpacker@gordonrees.com /s/ Nicholas D. Wilson NC Bar No. 33064 GORDON & REES LLP 421 Fayetteville Street, Ste. 330 Raleigh, North Carolina 27601 Telephone: (919) 787-4555 Facsimile: (919) 741-5840 Email: nwilson@gordonrees.com Attorneys for Defendant Imerys Talc America, Inc. Case 5:16-cv-00159-RLV-DSC Document 20 Filed 10/06/16 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on the 6th day of October, 2016, I electronically filed this document with the Clerk of the U.S. District Court, Western District of North Carolina, using the CM/ECF System, which will send notification of such filing to all parties. /s/ Nicholas D. Wilson Case 5:16-cv-00159-RLV-DSC Document 20 Filed 10/06/16 Page 3 of 3 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION BRENDA SHELTON, Plaintiff, vs. JOHNSON & JOHNSON, ET AL., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 5:16-cv-159-RLV-DSC DEFENDANT IMERYS TALC AMERICA, INC.’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO STATE A CLAIM Defendant Imerys Talc America, Inc. (“Imerys”), by its attorneys, files this Memorandum in Support of Its Motion to Dismiss Plaintiff’s Complaint against Imerys for lack of personal jurisdiction and failure to state a claim. In support thereof, Imerys states as follows: INTRODUCTION Plaintiff brings this action against Imerys and the other defendants alleging that the talc in the Johnson and Johnson Baby Powder (the “Product”) that she allegedly used caused her to develop ovarian cancer. (Compl. [Doc. No. 1] ¶¶ 1, 2.) Plaintiff asserts that Imerys mined and distributed the talc that was ultimately used in the Product manufactured and sold by Defendant Johnson & Johnson Consumer Inc. (Id. ¶ 5.) Plaintiff asserts the following causes of action against all Defendants: (1) negligence (Count I); (2) gross negligence (Count I); (3) breach of express warranty (Count II); (4) breach of implied warranty (Count III); (5) negligent and intentional infliction of emotional distress (Count IV); (6) fraud and negligent misrepresentation (Count V); and (7) unfair and deceptive trade Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 1 of 14 2 practices (Count VI). (Id. at ¶¶ 32-66.) Plaintiff’s Complaint is silent on how this Court may properly exercise personal jurisdiction over Imerys. Plaintiff can establish neither specific nor general personal jurisdiction for her claims. Imerys is a Delaware corporation with its principal place of business in California. Downey Aff. (“Aff.”), attached as Ex. 1, at ¶ 5. The Complaint fails to allege any facts sufficient to render Imerys at home in North Carolina in order to support the exercise of general jurisdiction. Nor can Plaintiff establish specific jurisdiction for her claims against Imerys as her claims do not arise from or relate to any in-state activities of Imerys. Plaintiff does not assert, nor could she, that Imerys mined, manufactured, sold, or distributed the talc that was used in the Product within, to, or from North Carolina or that the business transactions between Imerys and Johnson & Johnson Consumer Inc. occurred in North Carolina. In fact, the business transactions between Imerys and Johnson & Johnson Consumer Inc. occurred outside of North Carolina and have no bearing on whether this North Carolina court may constitutionally exercise personal jurisdiction over Imerys. Alternatively, based on the face of the Complaint, Plaintiff’s claims are time-barred by the applicable statute of limitations. Because Plaintiff failed to timely assert her claims against Defendants, they should be dismissed. Furthermore, Plaintiff’s fraud, fraudulent concealment, negligent misrepresentation, and unfair and deceptive trade practices claims are not pleaded with sufficient particularity. See FED. R. CIV. P. 8(a), 9(b); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). For all the reasons that follow, Imerys respectfully requests that this Court grant its Motion to Dismiss. JURISDICTIONAL FACTS Imerys is not a resident of North Carolina. Aff. at ¶ 6. Imerys is a Delaware corporation Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 2 of 14 3 with its principal place of business in California. Id. ¶ 5. Imerys does not own or possess property in the state. Id. ¶ 7. It does not maintain an office or operations in North Carolina. Id. ¶ 8. Imerys does not have an address, telephone number, or bank account in North Carolina. Id. ¶¶ 9-11. None of its officers reside in North Carolina or have offices in the state, and it does not maintain any records in the state. Id. ¶¶ 12-13. None of the other named defendants are citizens of North Carolina. (Compl. ¶¶ 3, 4.) They are not incorporated within the state and do not maintain their principal places of business in North Carolina. (Id.) Only Plaintiff is a citizen of North Carolina. (Id. ¶¶ 2.) The talc that is used in the Product is not mined in North Carolina. Aff. at ¶ 14. Indeed, Imerys neither sells talc in North Carolina for use in the Product, nor ships or distributes talc in North Carolina for use in the Product. Id. ¶¶ 15-17. Imerys’ commercial transactions with Johnson & Johnson Consumer Inc., whose relevant manufacturing facilities are not located in North Carolina, also took place outside North Carolina. Based on these undisputed facts, there is no proper basis for the Court to exercise personal jurisdiction over Imerys for Plaintiff’s claims against it. For these reasons, and those discussed below, the Court should dismiss Plaintiff’s claims against Imerys for lack of personal jurisdiction. ARGUMENT AND AUTHORITIES I. PLAINTIFF’S CLAIMS AGAINST IMERYS SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION. The Court’s exercise of either general or specific jurisdiction over Plaintiff’s claims against Imerys would violate Imerys’ due process rights. The Court, therefore, must dismiss Plaintiff’s claims against Imerys for lack of personal jurisdiction. Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 3 of 14 4 A. Plaintiff Bears the Burden of Establishing a Prima Facie Basis for This Court’s Assertion of Personal Jurisdiction Over Imerys. When personal jurisdiction is challenged, the plaintiff must demonstrate that the defendant is subject to personal jurisdiction in the forum. Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009) (“[T]he plaintiff bears the burden making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge”). A federal court sitting in diversity undertakes a two-step inquiry in determining whether personal jurisdiction exists. First, the applicable state long-arm statute must confer jurisdiction, and second, “the assertion of that jurisdiction [must be] consistent with constitutional due process.” Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 188 (4th Cir. 2016). Here, the two inquiries merge because the North Carolina Supreme Court has concluded that the state’s long-arm statute “permits the exercise of personal jurisdiction over a defendant to the outer limits allowable under federal due process.” Universal Leather, LLC v. Koro Ar, S.A., 773 F.3d 553, 558 (4th Cir. 2014) (citing Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629, 630 (N.C. 1977); see also id. (“our two-prong test merges into the single question whether Universal has made a prima facie showing that Koro had sufficient contacts with North Carolina to satisfy constitutional due process”). Therefore, the sole question is whether the exercise of personal jurisdiction over Imerys would violate its due process rights - an inquiry which is answered in the affirmative. B. Due Process Requires “Minimum Contacts.” The Due Process Clause of the Fourteenth Amendment limits North Carolina’s authority to exercise personal jurisdiction over a non-resident defendant. The non-resident defendant must “have certain minimum contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 4 of 14 5 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Accordingly, absent one of the traditional territorial bases of personal jurisdiction - presence, domicile, or consent- a court may assert personal jurisdiction over a defendant only if certain minimum contacts between North Carolina and the defendant are established. Id. When evaluating minimum contacts, the inquiry is whether there is “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). It is essential that “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (emphasis added). A court can acquire personal jurisdiction over a non-resident defendant under two mechanisms: specific jurisdiction and general jurisdiction. Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014). Specific jurisdiction arises when the non-resident defendant “has purposefully directed [its] activities at residents of the forum [state] and the litigation results from injuries that arise out of or relate to those activities.” Burger King Corp. v. Rudezewicz, 471 U.S. 462, 472 (1985) (internal quotation and citations omitted). General jurisdiction arises when the defendant’s “‘continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities’.” Daimler, 134 S. Ct. at 754 (quoting Int’l Shoe Co., 326 U.S. at 316). C. This Court Cannot Exercise Specific Jurisdiction Over Imerys. To assert specific jurisdiction over a non-resident defendant, a state must inquire into the relationship among the defendant, the forum, and the litigation. Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The focus must be on whether the in-state activities of the non-resident, corporate defendant “gave rise to the liabilities sued on.” Daimler, 134 S. Ct. at 761 (internal Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 5 of 14 6 citation omitted). It is not enough that a defendant have some minimum contacts with the forum state by way of the plaintiff’s injury. Walden, 134 S. Ct. at 1125. (“[M]ere injury to a forum resident is not a sufficient connection to the forum. . . . The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.”); see also Consulting Eng’rs Corp., 561 F.3d 273, 280-81 (“[a]lthough the place the plaintiff feels the alleged injury is plainly relevant to the [jurisdictional] inquiry, it must ultimately be accompanied by the defendant’s own contacts with the state if jurisdiction over the defendant is to be upheld.”) (quoting ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th Cir. 1997)). Rather, “the relationship must arise out of contacts that the defendant himself creates with the forum State, [for] [d]ue process limits on a state’s adjudicative authority principally protect the liberty of the nonresident defendant-not the convenience of plaintiffs or third parties.” Id. at 1122 (emphasis added) (internal quotations and citation omitted). No matter how significant the plaintiff’s contacts with the forum, it is the defendant’s contacts with the forum that must be considered. Id. “[T]he plaintiff cannot be the only link between the defendant and the forum [state].” Id.; see also World-Wide Volkswagen, 444 U.S. at 298 (“the mere ‘unilateral activity of those who claim some relationship with a non resident defendant cannot satisfy the requirement of contact with the forum State.’”) (quoting Hanson, 357 U.S. at 253). The benchmark in determining specific jurisdiction is “whether the defendant purposefully established minimum contacts in the forum State,” Burger King, 471 U.S. at 474 (internal quotation and citation omitted), such that the defendant could “reasonably anticipate being haled into court” for its forum-based activities, World-Wide Volkswagen, 444 U.S. at 297. Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 6 of 14 7 Purposeful availment is necessary to ensure a non-resident is not haled into a jurisdiction as the result of attenuated contact. Burger King, 471 U.S. at 475. If a non-resident has not purposefully availed itself of the laws of the forum state, the non-resident is not subject to personal jurisdiction there. The Fourth Circuit utilizes a three-part test in evaluating whether a court may exercise specific personal jurisdiction over a non-resident defendant: “(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the [plaintiff’s] claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Eng’rs Corp. 561 F.3d at 278 (citing ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)). In evaluating the first prong of the test, courts consider a number of factors. These include whether the defendant maintains offices or agents in the state, whether the defendant owns property in North Carolina, whether the defendant made in-person contact with the resident of the forum in the forum state regarding the business relationship, whether the parties contractually agreed that the law of the state would govern their disputes, and whether the performance of contractual duties was to occur within the forum. Id. (citing McGee v. Int'l Life Ins. Co., 355 U.S. 220, 221 (1957); Base Metal Trading, Ltd. v. OJSC, 283 F.3d 208, 213 (4th Cir. 2002); Hirschkop & Grad, P. C. v. Robinson, 757 F.2d 1499, 1503 (4th Cir 1985); Burger King, 471 U.S. at 481-82; Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 314 (4th Cir. 1982)). Here, Plaintiff’s Complaint fails to identify any specific action by Imerys within North Carolina. Plaintiff fails to allege how Imerys has purposefully availed itself of the privilege of Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 7 of 14 8 acting in North Carolina. While Plaintiff alleges that Imerys mines and distributes talc, Plaintiff does not contend that these actions take place in North Carolina, nor could she. Imerys did not mine, import, manufacture, sell, distribute, or otherwise provide the talc that was used in the Product in, to, or from North Carolina. Aff. ¶¶ 14-17. The mere fact that Imerys placed talc into the stream of commerce outside North Carolina, see Compl. ¶ 8, and that products manufactured by a third party using that talc ultimately made their way to North Carolina does not satisfy the requirement of meaningful contact with North Carolina required for the exercise of specific jurisdiction. The mere “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1987) (plurality op.). The only wrongful act Plaintiff alleges was committed by Imerys relates to its commercial relationship with its customer, Johnson & Johnson Consumer Inc., whose relevant manufacturing facilities are not located in North Carolina. Imerys has conducted no activity in North Carolina tied to the Product that Plaintiff allegedly used. Because Plaintiff has not demonstrated that Imerys directed any activity with respect to the Product in North Carolina, she cannot show that her alleged injuries arise from any activity by Imerys within the North Carolina, and the Court need not evaluate the second and third prongs of the specific jurisdiction analysis. See Consulting Eng’rs Corp. 561 F.3d at 278 (“If, and only if, we find that the plaintiff has satisfied this first prong of the test for specific jurisdiction need we move on to a consideration of prongs two and three.”). Accordingly, the Court cannot constitutionally exercise specific personal jurisdiction over Imerys in North Carolina. To hold otherwise would violate Imerys’ due process rights under the Fourteenth Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 8 of 14 9 Amendment. D. The Exercise of General Jurisdiction Over Imerys Would Violate Due Process. In contrast to specific jurisdiction, general jurisdiction is “all-purpose jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). General jurisdiction arises when the defendant’s “continuous corporate operations within a state are so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Daimler, 134 S. Ct. at 754 (internal quotation and citation omitted). In order to establish the existence of general jurisdiction, a plaintiff must show that the defendant’s “affiliations with the [forum] State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Daimler, 134 S.Ct. at 761 (emphasis added) (quoting Goodyear, 131 S. Ct. at 2851). Only in an exceptional case will a corporation’s operations in a forum other than its formal place of incorporation or principal place of business be so substantial and of such a nature as to render it “at home” in the forum state. Daimler, 134 S.Ct. at 761 n.19. Here, Plaintiff fails to allege any facts that would indicate Imerys is “at home” in North Carolina. Plaintiff’s allegations - i.e., that Imerys (1) mined and distributed talcum powder (Compl. ¶ 5), and (2) “placed a defective product into the stream of commerce” (Id. at ¶ 8) - are exactly the sort of “unacceptably grasping” form of general jurisdiction that the Supreme Court criticized in Daimler. 134 S. Ct. at 760. Federal and state courts across the country now reject such arguments. 7 7 See e.g., Sonera Holding B.V. v. Cukurova Holding A.S, 750 F.3d 221, 223 (2d Cir. 2014) (noting that the Daimler opinion “reaffirms that general jurisdiction extends beyond an entity’s state of incorporation and principal place of business only in the exceptional case where its contacts with another forum are so substantial as to render it ‘at home’ in that state”) (emphasis added) (internal quotation and citation omitted); Martinez v. Aero Caribbean, 764 F.3d 1062, Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 9 of 14 10 Plaintiff does not allege that Imerys conducted any business in North Carolina. Moreover, the Supreme Court has rejected jurisdictional arguments based solely on a stream of commerce theory. See Goodyear, 131 S. Ct. at 2855 (the flow of a defendant’s products into the forum does not “warrant a determination that . . . the forum has general jurisdiction over a defendant”). Plaintiff’s allegations are simply insufficient to support the exercise of general jurisdiction in North Carolina. See Daimler, 134 S. Ct. at 762 n.20 (“[a] corporation that operates in many places can scarcely be deemed at home in all of them.”). Imerys has demonstrated that it is in no way “at home” in North Carolina. Imerys is neither incorporated nor maintains its principal place of business (nor any place of business) in North Carolina. Aff. ¶ 5. Imerys is a Delaware corporation with its principal place of business located in California. Id. Imerys is not a resident of North Carolina. Id.¶ 6. It does not maintain 1070 (9th Cir. 2014) (emphasizing that “[a] corporation that operates in many places can scarcely be deemed at home in all of them” and dismissing claims for lack of personal jurisdiction); Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381, 386-87 (E.D.N.Y. 2015) (concluding that no general personal jurisdiction existed over out-of-state defendant who operated a manufacturing facility in the state because the contact was insufficient to establish it was “at home” since the defendant had hundreds of manufacturing plants nationwide); Freedman v. Suntrust Banks, Inc., 139 F. Supp. 3d 271, 280 (D.D.C. 2015) (discussing prior cases refusing to find general jurisdiction despite contract negotiations and meetings with the U.S. government, a website, tax filings, and contacts with non-government clients in the District and concluding that it could not find Defendants essentially at home in the District of Columbia “[w]hen the Court views Defendants’ contacts with the District of Columbia in light of Defendants’ contacts with their seven other primary bases of operation”) (internal quotation and citations omitted); Eaves v. Pirelli Tire, LLC, No. 13-1271, 2014 WL 1883791, at *9 (D. Kan. May 12, 2014) (determining that “plaintiffs’ stream of commerce arguments are to no avail for general jurisdiction”); Lexion Med., LLC v. SurgiQuest, Inc., 8 F. Supp. 3d 1122, 1127-28 (D. Minn. 2014) (explaining that although defendant had “repeatedly transacted business” in State, a corporation’s “continuous activity of some sorts within a state” is not sufficient to support general jurisdiction) (internal quotation and citation omitted)); In re Plavix Related Cases, No. 2012L5688, 2014 WL 3928240, at *5-8 (Trial Order) (Ill. Cir. Ct. Aug. 11, 2014) (“Plaintiffs’ jurisdictional framework, taken to its logical conclusion, would produce exactly that forbidden result: national general jurisdiction in every state in which Defendants are doing business and generating sales revenue. Daimler makes clear that such an approach to general jurisdiction does not comport with due process.”). Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 10 of 14 11 an office or operations in North Carolina or own or possess any real property located in the state. Id. ¶¶ 7-8. Plaintiff’s generic allegations pertaining to Imerys’ alleged activities are insufficient to satisfy the limitations imposed by the Due Process Clause. Traditional notions of fair play and substantial justice would be offended by haling Imerys into a court in a state where it is neither incorporated nor has its principal place of business. Consequently, this Court may not constitutionally exercise personal jurisdiction over Imerys in this matter, and Plaintiff’s claims against Imerys must be dismissed for lack of personal jurisdiction. See Daimler, 134 S. Ct. at 751-54, 760-62; In re Plavix, 2014 WL 3928240, at *5-8. II. THE COURT SHOULD DISMISS THE PLAINTIFF’S TIME-BARRED CLAIMS. A court may dismiss a plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) when it is apparent from the face of the complaint that the plaintiff’s claims are time- barred. See Koehler v. Rite-Aid Pharmacy, No. 3:12-cv-00046, 2012 WL 896144, at *2 (W.D.N.C. Mar. 15, 2012) (“A statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the Complaint that such statute bars the claim.”) (quoting Horton v. Carolina Medicorp, Inc., 472 S.E.2d 778, 780 (N.C. 1996)). Here, it is clear from the face of Plaintiff’s Complaint that all of her claims against Defendants are untimely and should be dismissed. Defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc.’s Motion to Dismiss and Memorandum in Support of Their Motion to Dismiss (collectively “Motion to Dismiss) challenge the timeliness of Plaintiff’s claims against Defendants. (See Defs. Johnson & Johnson and Johnson & Johnson Consumer, Inc.’s Mot. to Dismiss and Mem. in Supp. of Mot. to Dismiss, Doc. Nos. 11, 12.) Imerys joins and incorporates by reference herein any and all facts, arguments, citations, and legal authority raised by Johnson & Johnson and Johnson & Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 11 of 14 12 Johnson Consumer, Inc. (“Johnson & Johnson Defendants”) with respect to the timeliness of Plaintiff’s claims. For the reasons set forth in the Johnson & Johnson Defendants’ Motion to Dismiss, the Court should dismiss Plaintiff’s time-barred claims. III. PLAINTIFF’S FRAUD, FRAUDULENT CONCEALMENT, NEGLIGENT MISREPRESENTATION, AND UNFAIR AND DECEPTIVE TRADE PRACTICES CLAIMS SHOULD BE DISMISSED. Plaintiff brings purported fraud, fraudulent concealment, negligent misrepresentation, and unfair and deceptive trade practices claims against Imerys and the other defendants in this case. These claims should be dismissed because they are not sufficiently pleaded. The Johnson & Johnson Defendants challenge the viability of Plaintiff’s purported fraud, fraudulent concealment, negligent misrepresentation, and unfair and deceptive trade practices claims under Rules 12(b)(6), Iqbal, and Twombly. The Johnson & Johnson Defendants further assert that Plaintiff has failed to sufficiently plead her purported fraud, fraudulent concealment, negligent misrepresentation, and unfair and deceptive trade practices claims against Defendants under Rule 9(b)’s heightened pleading standard. (See Defs. Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc.’s Mot. to Dismiss and Mem. in Supp. of Mot. to Dismiss, Doc. Nos. 11, 12.) Imerys joins and incorporates by reference herein any and all facts, arguments, citations, and legal authority raised by the Johnson & Johnson Defendants with respect to Plaintiff’s purported fraud, fraudulent concealment, negligent misrepresentation, and unfair and deceptive trade practices claims. Accordingly, Plaintiff’s claims should be dismissed. CONCLUSION The Court should dismiss Plaintiff’s claims against Imerys for lack of personal jurisdiction. In the alternative, this Court should dismiss Plaintiff’s claims against Imerys because they are time-barred. Alternative, the Court should dismiss Plaintiff’s fraud, negligent misrepresentation, and unfair and deceptive trade practices claims because they are not Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 12 of 14 13 sufficiently pleaded. Respectfully submitted, /s/ Thomas A. Packer________________________ NC Bar No. 45183 GORDON & REES LLP 421 Fayetteville Street, Ste. 330 Raleigh, North Carolina 27601 Telephone: (919) 787-4555 Facsimile: (919) 741-5840 Email: tpacker@gordonrees.com /s/ Nicholas D. Wilson NC Bar No. 33064 GORDON & REES LLP 421 Fayetteville Street, Ste. 330 Raleigh, North Carolina 27601 Telephone: (919) 787-4555 Facsimile: (919) 741-5840 Email: nwilson@gordonrees.com Attorneys for Defendant Imerys Talc America, Inc. Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 13 of 14 14 CERTIFICATE OF SERVICE I hereby certify that on the 6th day of October, 2016, I electronically filed this document with the Clerk of the U.S. District Court, Western District of North Carolina, using the CM/ECF System, which will send notification of such filing to all parties. /s/ Nicholas D. Wilson Case 5:16-cv-00159-RLV-DSC Document 20-1 Filed 10/06/16 Page 14 of 14 Case 5:16-cv-00159-RLV-DSC Document 20-2 Filed 10/06/16 Page 1 of 2 Case 5:16-cv-00159-RLV-DSC Document 20-2 Filed 10/06/16 Page 2 of 2