Shinske v. Johnson & Johnson et al

MOTION to dismiss for failure to state a claim and Incorporated Memorandum of Law

M.D. Fla.October 17, 2016

1 238816 v1 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DIANA SHINSKE, Plaintiff, v. Case No. 8:16-cv-02317-EAK-AAS JOHNSON & JOHNSON; JOHNSON CONSUMER COMPANIES, INC.; IMERYS TALC AMERICA, INC., F/K/A LUZENAC AMERICA, INC.; PERSONAL CARE PRODUCTS COUNCIL, F/K/A COSMETIC, TOILETRY, AND FRAGRANCE ASSOCIATION (CTFA); JOHN DOES/JANE DOES 1-30; UNKNOWN BUSINESSES AND/OR CORPORATIONS 1-50, Defendants. __________________________________/ DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER COMPANIES, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND INCORPORATED MEMORANDUM OF LAW Defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc., n/k/a Johnson & Johnson Consumer Inc. (collectively “Johnson & Johnson Defendants”), pursuant to Fed. R. Civ. P. 12(b)(6), respectfully move to dismiss Plaintiff’s Complaint because it fails to state a claim upon which relief can be granted. INTRODUCTION This is a product liability action in which Plaintiff Diana Shinske alleges she was seriously injured as a result of using Johnson’s Baby Powder and Shower to Shower. Compl. at ¶ 1. Plaintiff asserts eleven causes of action against the Johnson & Johnson Defendants: strict liability failure to warn (Count I); inadequate warning (Count II); strict products liability - Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 1 of 9 PageID 69 2 238816 v1 design defect (Count III); construction or composition defect (Count IV); design defect (Count V); negligence (Count VII); breach of implied warranty (Count VIII); breach of express warranty (Count IX); negligent misrepresentation (Count X); fraudulent concealment (Count XI); and punitive damages (Count XII). 1 Plaintiff’s Complaint should be dismissed in its entirety as an impermissible shotgun pleading, which Florida federal courts and the Eleventh Circuit have repeatedly frowned upon. Each of Plaintiff’s twelve (12) counts incorporates all of the preceding paragraphs, including the introductory allegations and every prior count, leaving it for the Court and the Johnson & Johnson Defendants to sift out the irrelevancies and determine which allegations pertain to which claims. In addition, two of Plaintiff’s counts are not plead with sufficient particularity as required by 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 (2009), and Fed. R. Civ. P. 8(a). Indeed, Plaintiff’s claims sounding in fraud and misrepresentation must comply with the heightened pleading requirements set forth in Fed. R. Civ. P. 9(b). Rule 9(b) requires a party to state with “particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Counts X and XI of Plaintiff’s Complaint fail to meet this standard. Accordingly, the Court should dismiss all of Plaintiff’s claims against the Johnson & Johnson Defendants pursuant to Fed. R. Civ. P 12(b)(6). 1 Counts VII, VIII, and IX are pled against the Johnson & Johnson Defendants, Counts I and II are pled against the Johnson & Johnson Defendants and Imerys Talc America (“Imerys”), and Counts III, IV, V, X, XI, and XII are pled against “All Defendants,” which includes the Johnson & Johnson Defendants, Imerys, and Personal Care Products Council (“PCPC”). Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 2 of 9 PageID 70 3 238816 v1 MEMORANDUM OF LAW I. LEGAL STANDARD A complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[f]actual allegations must be enough to raise a right to relief above the speculative level” and must state “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570 (emphasis added). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. A complaint must contain “more than labels or conclusions” or “a formulaic recitation of the elements of a cause of action . . . .” Twombly, 550 U.S. at 555. The Court need not accept as true the plaintiff’s conclusory allegations. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Indeed, while the Court must construe the allegations in the complaint in the light most favorable to the plaintiff, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). A court should evaluate well-pleaded factual allegations to determine whether “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at 557). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 3 of 9 PageID 71 4 238816 v1 When a complaint fails to “possess enough heft to ‘sho[w] that the pleader is entitled to relief. . . .’” then “‘this basic deficiency should…be exposed at the point of minimum expenditure of time and money by the parties and the court.’” Twombly, 550 U.S. at 557, 558 (internal citations omitted). A court thus should insist upon specificity in pleading before allowing a potentially massive discovery to proceed. Id. Twombly thoughtfully highlights that discovery is for finding “details” of a case, not for trying to create a case. Id. at 560 n.6 (emphasis added). Accordingly, it is critical at the pleading stage to require a heightened “plausibility standard,” lest discovery abuse run unchecked. Id. at 559. Moreover, Rule 9(b)’s “particularity requirement demands a higher degree of notice than that required for other claims,” and “is intended to enable the defendant to respond specifically and quickly to the potentially damaging allegations.” Costner v. URS Consultants, Inc., 317 F.3d 883, 888 (8th Cir. 2003). For the reasons addressed below, Plaintiff’s Complaint fails to state a claim against the Johnson & Johnson Defendants under Rule 8, Rule 9(b), Twombly, and Iqbal and, therefore, should be dismissed. II. ARGUMENT A. Plaintiff’s Complaint Is An Improper Shotgun Pleading Plaintiff’s Complaint is the type of classic shotgun pleading which has been repeatedly criticized in the Eleventh Circuit. See Thompson v. RelationServe Media, Inc., 610 F.3d 628, 650 (11th Cir. 2010) (“This circuit condemns shotgun pleadings.”); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n.1 (11th Cir. 2006) (shotgun pleadings are “frowned upon in this circuit.”). As one Florida federal court recently explained, “a shotgun pleading is a pleading that incorporates every antecedent allegation by reference into each subsequent claim for relief or affirmative defense.” Gerold v. Astellas Pharma US, Inc., Case No. 2:15-cv-475-FtM-99CM, Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 4 of 9 PageID 72 5 238816 v1 2015 U.S. Dist. LEXIS 161882, *6 (M.D. Fla. Dec. 2, 2015). “As a result, most of the counts in a typical shotgun complaint contain irrelevant factual allegations and legal conclusions.” Id. When that happens, “the trial court must sift out the irrelevancies, a task that can be quite onerous.” Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). Thus, “[a] district court has the sua sponte obligation to identify and dismiss a ‘shotgun’ complaint.” Cid v. City of Miramar, Case No. 16-cv-60844-Gayles, 2016 U.S. Dist. LEXIS 107038, *6 (S.D. Fla. Aug. 12, 2016). This is because “[s]hotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.” Slep-Tone Entertainment Corp. v. 4145 Pete’s Place, Inc., Case No. 8:12-cv-01883-JDW-AEP, 2013 U.S. Dist. LEXIS 105229, *4 n.1 (M.D. Fla. July 26, 2013) (citing Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir. 2001)). Here, Plaintiff’s one-hundred-forty (140) paragraph Complaint pleads twelve (12) causes of action against the Johnson & Johnson Defendants, Imerys, PCPC, or some combination of these Defendants. Each successive count incorporates by reference all of the preceding paragraphs and allegations. See Compl. at ¶¶ 51, 65, 75, 84, 89, 94, 102, 106, 110, 116, 122, and 133. As such, all of the counts contain “irrelevant factual allegations and legal conclusions.” Gerold, 2015 U.S. Dist. LEXIS 161882 at *6. Accordingly, this Court should dismiss Plaintiff’s Complaint in its entirety. See id. (dismissing plaintiff’s shotgun complaint); Cid, 2016 U.S. Dist. LEXIS 107038 at *7 (same); Slep-Tone Entertainment Corp., 2013 U.S. Dist. LEXIS at *4 (striking plaintiff’s shotgun complaint); Order at 3, Marsar v. Smith and Nephew, Inc., No. 8:13- cv-01244-T-27TGW, Dkt. No. 22 (M.D. Fla. May 30, 2013) (dismissing plaintiff’s amended complaint); Marsar v. Smith and Nephew, Inc., No. 8:13-cv-1244-T-27TGW, 2013 U.S. Dist. LEXIS 114745, *8 (M.D. Fla. Aug. 14, 2013) (dismissing plaintiff’s second amended complaint). Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 5 of 9 PageID 73 6 238816 v1 B. Plaintiff’s Claims of Negligent Misrepresentation and Fraud Fail Because They Do Not Meet Rule 9’s Heightened Pleading Requirements. In Counts X and XI, Plaintiff attempts to state causes of action for negligent misrepresentation and fraud by alleging that Defendants “negligently represented the PRODUCTS’ high risk of unreasonable, dangerous, adverse side effects.” Compl. at ¶ 118; see also id. at ¶ 124. For fraud-based claims such as these, Federal Rule of Civil Procedure 9(b) obligates the pleader to “specifically identify misrepresentations or omissions of fact, the time, place or manner, in which they were made, and how the representations were false and misleading.” Meterlogic, Inc. v. Copier Solutions, Inc., 126 F.Supp.2d 1346, 1360-61 (S.D. Fla. 2000) (finding that a fraud claim was alleged with sufficient particularity where it gave the “‘who, what, where, and when’ of the alleged fraud that took place”). This standard “is satisfied if the complaint sets forth ‘(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.’” Ziemba v. Cascade Int’l Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). Similarly, for a claim of misrepresentation, Federal Rule of Civil Procedure 9(b) obligates the pleader to allege “facts as to time, place, and substance of the defendant’s alleged fraud, specifically the details of the defendant[’s] allegedly fraudulent acts, when they occurred, and who engaged in them.” Zoom Tan, LLC v. Heartland Tanning, Inc., Case No. 2:12-cv-684- FtM-29UAM, 2013 U.S. Dist. LEXIS 150844, *11 (M.D. Fla. Oct. 21, 2013) (dismissing negligent misrepresentation claim); see also Altier v. Fed. Nat. Mortgage Assoc., Case No. 1:13- cv-164-MW-GRJ, 2013 U.S. Dist. LEXIS 172214, *22 (N.D. Fla. Nov. 8, 2013) (“a claim for Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 6 of 9 PageID 74 7 238816 v1 misrepresentation is subject to the same strict pleading standard applicable to a claim for fraud under Fed. R. Civ. P. 9(b).”). This standard if satisfied by providing “the who, what, when, where, and how: the first paragraph of any newspaper story.” Garfield v. NDC Health Corp., 466 F. 3d 1255, 1262 (11th Cir. 2006); see also Meterlogic, Inc., 126 F.Supp.2d at 1360-61 (finding that a fraud claim was alleged with sufficient particularity where it gave the “‘who, what, where, and when’ of the alleged fraud that took place”). Here, Plaintiff vaguely alleges the collective Defendants misrepresented that “the PRODUCTS have no serious side effects.” Compl. at ¶ 119. Plaintiff then offers the wholly conclusory allegation that the collective “Defendants knew, and had reason to know, that the PRODUCTS had been insufficiently tested, or had not been tested at all, and that they lacked adequate and accurate warnings, and that it created a high risk, and/or higher than acceptable risk, and/or higher than reported and represented risk, of adverse side effects.” Id. at ¶ 120. Plaintiff fails, however, to provide any factual detail concerning the alleged misrepresentations that were made to her, and did not identify when those misrepresentations were made, who made them, and where they were made. Plaintiff does not identify the alleged misrepresentations with any specificity that would allow notify the Johnson & Johnson Defendants as to how they participated in any alleged fraud. See King v. United States Bank Nat’l Ass’n, Case No. 1:13-cv- 0229-TWT-JSA, 2013 U.S. Dist. LEXIS 125310, *15 (N.D. Ga. July 29, 2013) (citing Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997) (“in cases involving multiple defendants, a plaintiff may not simply lump together all the defendants in the allegations of fraud; the complaint must instead reasonably notify each defendant of how it supposedly participated”). Accordingly, the Court should dismiss Counts X and XI because Plaintiff did not meet the heightened pleading standard set out in Federal Rule of Civil Procedure Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 7 of 9 PageID 75 8 238816 v1 9(b). See Zoom Tan, LLC, 2013 U.S. Dist. LEXIS 150844 at *11-12 (dismissing negligent misrepresentation claim because “plaintiff has not identified when the statements were made, how the statements were communicated, the person who made the statements, or to whom the statements were made.”); Altier, 2013 U.S. Dist. LEXIS 172214 at *22 (recommending dismissal of misrepresentation claim because plaintiffs “have only alleged conclusional allegations of misrepresentation, without any reference to who, what, where, or when,” thus, “the claim is deficient for failing to comply with the pleading standards under Rule 9(b).”). CONCLUSION For the foregoing reasons, the Johnson & Johnson Defendants respectfully request that this Honorable Court dismiss Plaintiff’s Complaint because it fails to state a claim upon which relief could be granted. Dated: October 17, 2016 Respectfully submitted, s/Brian T. Guthrie_________________ Brian T. Guthrie, Esq. Florida Bar No. 84232 bguthrie@shb.com SHOOK, HARDY & BACON L.L.P. 100 N. Tampa St., Suite 2900 Tampa, Florida 33602 T: (813) 202-7100 F: (813) 221-8837 Attorney for Defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 8 of 9 PageID 76 9 238816 v1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 17th day of October, 2016, a true and correct copy of the foregoing has been filed using the Court’s CM/ECF system, which will send a notice of electronic filing to all attorneys of record. s/Brian T. Guthrie Attorney Case 8:16-cv-02317-EAK-AAS Document 15 Filed 10/17/16 Page 9 of 9 PageID 77