MCKESSON CORPORATION, a Delaware corporation v. Grisham et al

Filing 37

OPINION and ORDER denying 29 Motion to Dismiss Party ; denying as moot 17 Motion to Dismiss Party ; granting 26 Motion to STRIKE Documents 16 and 21 . Signed by Honorable Timothy L. Brooks on July 2, 2015. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

McKESSON CORPORATION, a Delaware corporation
V.

PLAINTIFF

CASE NO. 3:15-CV-3026

C.C. “BUD” GRISHAM, an individual; and
THE ESTATE OF MARY FAYE (BURKE) GRISHAM,
C.C. “BUD” GRISHAM, Executor

DEFENDANTS

OPINION AND ORDER
Now pending before the Court is Plaintiff McKesson Corporation’s (“McKesson”)
Motion to Strike (Doc. 26). McKesson asks the Court to strike certain pleadings filed by
separate Defendants The Estate of Mary Faye (Burke) Grisham (“Estate”) and C.C. “Bud”
Grisham, in his capacity as executor of the Estate. McKesson contends that the Estate’s
Answers and Counterclaims (Docs. 16, 21), filed in response to both the original Complaint
and the Amended Complaint, should be stricken as improperly filed. Both documents were
submitted on behalf of the Estate by Grisham, an individual who is not a licensed attorney.
As the Court previously observed in its Order (Doc. 25) of May 27, 2015, the law is
clear that an estate cannot be represented pro se. The Court directed the Estate to obtain
legal counsel by a date certain, and the Estate complied by retaining counsel who entered
her appearance in this matter on June 12, 2015, and filed an Amended Answer and
Counterclaim (Doc. 35) on behalf of the Estate on June 29, 2015.
Despite the fact that the Estate is now properly represented, the Court agrees with
McKesson that Grisham’s earlier pro se filings made on behalf of the Estate were

improper. Therefore, McKesson’s Motion to Strike (Doc. 26) is GRANTED, and Docs. 16
and 21 are STRICKEN.
The Court now turns its attention to two Motions to Dismiss (Docs. 17, 29) that were
filed by Grisham in his individual capacity. The first Motion to Dismiss (Doc. 17) predates
the filing of the Amended Complaint and is duplicated in substance by the later-filed
second Motion to Dismiss (Doc. 29). The first Motion to Dismiss (Doc. 17) is therefore
DENIED AS MOOT. With respect to the second Motion to Dismiss, it asserts that the
Amended Complaint fails to state facts specific to Grisham as an individual and only states
facts related to Grisham’s limited role as executor of his sister’s Estate. Grisham posits
that McKesson has sued him individually in order “to intimidate him through expense, time
and stress so that [Grisham], as executor, will surrender to plaintiff’s demands.” (Doc. 29,
p. 3).
McKesson responds (Doc. 31) that it has stated numerous plausible facts in the
Amended Complaint concerning Grisham in his individual capacity, and if such facts are
assumed true, they state valid claims for relief against Grisham. In determining the
standard of review that is appropriate here, the Court observes that “[t]echnically . . . a Rule
12(b)(6) motion cannot be filed after an answer has been submitted,” Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990), and Grisham’s second Motion to Dismiss
was filed after he answered the Amended Complaint. Accordingly, the Court will treat the
second Motion to Dismiss as one made pursuant to Rule 12(c) for judgment on the
pleadings, a distinction that is “purely formal,” according to the Eighth Circuit, as the same
standard of review is employed for 12(c) motions as for 12(b)(6) motions. Id.

2

“When evaluating a motion for judgment on the pleadings, a court must accept as
true all factual allegations set out in the complaint, and must construe the complaint in the
light most favorable to the plaintiff, drawing all inferences in his favor.” Wishnatsky v.
Rovner, 443 F.3d 608, 610 (8th Cir. 2006). “Judgment on the pleadings is appropriate only
when there is no dispute as to any material facts and the moving party is entitled to
judgment as a matter of law.” Id. The facts alleged in the complaint “must be enough to
raise a right to relief above the speculative level.” Clemons v. Crawford, 585 F.3d 1119,
1124 (8th Cir. 2009) (citing Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Upon consideration of the facts alleged in the Amended Complaint, the Court finds
them sufficient to state plausible claims against Grisham in his individual capacity, at least
at this early stage of the litigation. Accordingly, Grisham’s Motion to Dismiss (Doc. 29) is
DENIED.
IT IS SO ORDERED on this 2nd day of July, 2015.

/s/ Timothy L. Brooks
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE

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