Sieloff v. Stryker Corporation et al
Filing
11
ORDER granting 8 Defendants' Motion to Dismiss Counts 3,4,6,7,8,9,10 and 11. Signed by Judge Frederick J Martone on 11/16/12.(DMT)
1
2
WO
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Ryan Sieloff,
Plaintiff,
10
11
vs.
12
13
Stryker Corporation;
Corporation,
14
Defendants.
15
Stryker
)
)
)
)
)
)
)
Sales)
)
)
)
)
)
No. CV 12-01834-PHX-FJM
ORDER
16
The court has before it defendants' motion to dismiss (doc. 8). Plaintiff did not
17
respond to the motion and the time for doing so has long since expired. See LRCiv 7.2(c).
18
Plaintiff's complaint alleges that he developed chondrolysis and suffered serious
19
injuries as a direct and proximate result of being administered a local anesthetic into his left
20
shoulder joint via the defendants' pain pump. Plaintiff seeks to recover damages from
21
defendants under the following theories: (1) strict products liability for design defect; (2)
22
strict products liability for defect due to inadequate warning; (3) strict products liability for
23
defect due to nonconformance with representations; (4) strict products liability for defect due
24
to failure of adequate test; (5) negligence; (6) breach of express warranty; (7) breach of
25
implied warranty; (8) fraud/misrepresenation; (9) negligent misrepresentation; (10) violation
26
of the Arizona Consumer Fraud Act; and (11) punitive damages.
27
28
1
Defendants move to dismiss counts three, four, six, seven, eight, nine, ten and eleven
2
for failure to state a claim upon which relief can be granted. Because plaintiff failed to
3
respond to the motion, we construe the lack of a response as a concession and grant the
4
motion summarily. See LRCiv 7.2(i) (“if . . . counsel does not serve and file the required
5
answering memoranda . . . such non-compliance may be deemed a consent to the denial or
6
granting of the motion and the Court may dispose of the motion summarily”).
7
We dismiss counts three and four because they are not based on a cognizable legal
8
theory. Counts six, seven, eight, nine, ten and eleven fail to meet the pleading standard set
9
forth in Fed. R. Civ. P. 8(a) and 12(b)(6). Plaintiff's sixth cause of action fails because the
10
complaint does not state specific facts that demonstrate any actionable express warranty
11
existed, or that the warranty became part of the basis of the bargain. See A.R.S. § 47-2313.
12
We dismiss count seven because theories of breach of implied warranties and strict liability
13
merge in product liability actions. See Scheller v. Wilson Certified Foods, Inc., 114 Ariz.
14
159, 161, 559 P.2d 1074, 1076 (Ct. App. 1976). Plaintiff's eighth, ninth, and tenth causes of
15
actions for fraud and misrepresentation fail under Fed. R. Civ. P. 9(b) because they are not
16
pled with particularity. Plaintiff alleges that defendants represented to the public and
17
healthcare community that the pain pump was safe and effective. However, plaintiff wholly
18
fails to identify the time or place of the alleged fraudulent statements, and any specific
19
communications that he or his prescribing physician viewed or relied upon. Finally, we
20
dismiss count eleven for punitive damages because plaintiff's generic, boilerplate allegation
21
that defendants' actions were willful, malicious, outrageous, and unconscionable, does not
22
satisfy Ashcroft v. Iqbal 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009).
23
24
IT IS ORDERED GRANTING defendants' motion to dismiss counts three, four, six,
seven, eight, nine, ten and eleven (doc. 8).
25
DATED this 16th day of November, 2012.
26
27
.
28
-2-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?