United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE
this Court is Defendants' Motion to Dismiss
Plaintiffs' Amended Complaint (Doc. 11). The matter is
fully briefed and at issue. See Docs. 11-13. For the
reasons stated herein, the Court GRANTS in part and DENIES in
part Defendants' motion.
filed this suit on November 6, 2018, and, responding to
Defendants' initial motion to dismiss (Doc. 5), sought
leave to amend on December 26, 2018, which the Court granted.
See Docs. 6-7. Plaintiffs filed their amended
complaint (Doc. 8) on January 2, 2019, and Defendants moved
to dismiss the amended complaint on January 16, 2019.
See Doc. 11.
as true all well-pleaded factual allegations in the complaint
and viewing them in the light most favorable to Plaintiffs,
see Burnett v. Mortg. Elec. Registration Sys., Inc.,
706 F.3d 1231, 1235 (10th Cir. 2013), Plaintiffs allege that
Defendants “designed, patented, manufactured, labeled,
marketed and sold a line of pelvic mesh products” that
were primarily intended to “treat stress urinary
incontinence a[n]d pelvic organ prolapse.” Doc. 8, at
2. Plaintiff Shirley Mears had three of these mesh products
surgically implanted on November 8, 2009, to treat uterine
and vaginal descent. Id. at 3. On November 10, 2016,
these mesh products were “surgically removed, due to
the mesh penetrating [Ms. Mears's] vaginal wall.”
Id. Among other causes of action, Plaintiffs allege
negligence, products liability, and breach of warranty claims
against Defendants, asserting that the products at issue were
defective and injured Ms. Mears. See id. at 19-57.
Legal Standards for a Fed.R.Civ.P. 12(b)(6) Motion to
legally-sufficient complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). Operationalizing
the Rule, a complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face'” to survive a motion
to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). This standard “is ‘a middle
ground between heightened fact pleading . . . and allowing
complaints that are no more than labels and conclusions or a
formulaic recitation of the elements of a cause of
action.'” Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). That
is, the plaintiff's complaint “need only give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Id. at 1192 (internal
quotation marks and citations omitted). While assessing
plausibility is “a context-specific task . . .
requir[ing] . . . court[s] to draw on [their] judicial
experience and common sense, ” Iqbal, 556 U.S.
at 679, complaints “‘plead[ing] factual content
that allows the court to . . . reasonabl[y] infer that the
defendant is liable for the misconduct alleged'”
are facially plausible. See S.E.C. v. Shields, 744
F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556
U.S. at 678).
considering a Rule 12 motion to dismiss, the Court
“accept[s] as true all well-pleaded factual allegations
in the complaint and view[s] them in the light most favorable
to the plaintiff.” Burnett, 706 F.3d at 1235.
A complaint may be dismissed for failure to state a claim,
though, where its allegations establish that relief is barred
by the applicable limitations period. See Chance v.
Zinke, 898 F.3d 1025, 1034 (10th Cir. 2018) (citing
Jones v. Bock, 549 U.S. 199, 215 (2007)).
move to dismiss Plaintiffs' claims on myriad grounds.
First, Defendants argue that the entire amended complaint
should be dismissed because it is nothing more than
“shotgun” or “kitchen sink” pleading.
See Doc. 11, at 4-6. The Court disagrees.
Preliminarily, the number and nature of the Defendants merits
clarification. Based on the civil docket and the parties'
filings, Plaintiffs are asserting claims against four
defendants: (1) Astora Women's Health, LLC (formerly
known as American Medical Systems, Inc.); (2) American
Medical Systems Holding Company, Inc.; (3) Endo
Pharmaceuticals, Inc.; and (4) Endo Health Solutions, Inc.
(formerly known as Endo Pharmaceuticals Holdings, Inc.).
See Doc. 8, at 1. Plaintiffs allege that Astora
Women's Health, LLC is a wholly owned subsidiary of
American Medical Systems Holding Company, Inc., and in turn
that American Medical Systems Holding Company, Inc. is a
wholly owned subsidiary of Endo Pharmaceuticals, Inc. and
Endo Health Solutions, Inc. See id. In other words,
Plaintiffs assert that Defendants share some common,
corporate structure and are interrelated in the
manufacturing, designing, and marketing of the products at
issue. See id. at 1-3.
Defendants acknowledge, the purpose of Rule 8's pleading
burden is to “‘provide fair notice of the grounds
for the claims made against each of the
defendants.'” Doc. 11, at 5 (quoting VanZandt
v. Okla. Dep't of Human Servs., 276 Fed.Appx. 843,
849 (10th Cir. 2008). Far from being opaque or scattershot,
Plaintiffs' amended complaint, though lengthy, is replete
with detailed factual allegations that give Defendants fair
notice of the claims they face. Moreover, Plaintiffs assert
claims, such as products liability, that may implicate actors
“up the chain” of production. See Kirkland v.
Gen. Motors Corp., 1974 OK 52, ¶ 21, 521 P.2d 1353,
1361. Plaintiffs' decision to allege against Defendants
collectively, then, is not fatal to their amended complaint.
Accordingly, the Court declines to dismiss the amended
complaint in its entirety, as urged by Defendants.
Plaintiffs concede that Oklahoma's Consumer Protection
Act (“OCPA”), 15 O.S. § 751, et
seq., does not apply to this case. Doc. 12, at 4.
Accordingly, the Court grants Defendant's motion to
dismiss as to Plaintiffs' OCPA claim, see Doc.
8, at 46 (Count XIII of the amended complaint).
Plaintiffs also agree with Defendants' contention that
“fraudulent concealment is not an independent cause of
action [under Oklahoma law], and therefore is not a claim
upon which relief may be granted.” Doc. 11, at 8
(citing McAlister v. Ford Motor Co., No.
CIV-14-1351-D, 2015 WL 4775382, at *3 (W.D. Okla. Aug. 13,
2015)); see also Doc. 12, at 7 (“[A]ll claims
other than the fraudulent concealment as a separate claim
and the violation of the consumer protection laws should
remain active . . . .” (emphasis added)). Accordingly,
the Court grants Defendants' motion to dismiss as to
Plaintiffs' fraudulent concealment claim, see
Doc. 8, at 35 (Count VIII of the amended complaint).
Defendants argue that Plaintiffs' negligent infliction of
emotional distress (“NIED”) claim should be
dismissed, as Oklahoma does not recognize this claim as an
independent tort. See Doc. 11, at 9. Plaintiffs
tacitly concede this, though they argue that their NIED claim
is just a claim for negligence. See Doc. 12, at 4-5.
Defendants are correct that “[t]he negligent causing of
emotional distress is not an independent tort, but is in
effect the tort of negligence.” Ridings v.
Maze, 2018 OK 18, ¶ 6, 414 P.3d 835, 837.
Plaintiffs have pled a negligence claim in their amended
complaint. See Doc. 8, at ...