Norton v. Independence Technology, L.L.C.

Filing 18

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 8/15/2011 GRANTING 9 Motion for Judgment on the pleadings, with leave to amend; Plaintiff may file an amended complaint w/i 20 days from service of this Memorandum and Order; if no amended complaint is filed w/i this 20-day period, without further notice to the parties, the action will be dismissed with prejudice. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES L. NORTON,

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No. 2:10-cv-03218-MCE-JFM

Plaintiff,
v.

MEMORANDUM AND ORDER

INDEPENDENCE TECHNOLOGY, LLC,
a Johnson & Johnson Company;
and DOES 1-50, inclusive,
Defendants.

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----oo0oo----

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Plaintiff James Norton (“Plaintiff”) originally initiated

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this action in El Dorado County Superior Court on July 2, 2010.

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Defendant Independence Technology (“Defendant”) filed an answer

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in state court and subsequently removed the case to this Court

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pursuant to the Court’s diversity jurisdiction.

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the Court is Defendant’s Motion for Judgment on the Pleadings

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(“Motion”) seeking to dismiss Plaintiff’s Complaint in its

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entirety on the basis that Plaintiff’s claims are preempted by

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federal law.

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GRANTED with leave to amend.

Presently before

For the following reasons, Defendant’s Motion is

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BACKGROUND

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In his state court complaint, Plaintiff very generally

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alleges causes of action against Defendant for strict products

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liability, negligence and breach of implied warranty arising out

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of Defendant’s design and manufacture of his iBOT(R) 4000

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Mobility System (“iBOT”).

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July 4, 2009, while on a camping trip at Emerald Bay of Lake

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Tahoe, California, Plaintiff attempted to navigate his iBOT

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wheelchair on a trail leading to a fireworks viewing area.

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Plaintiff was operating the chair in low four-wheel drive when he

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made a slow left turn.

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on the chair’s arm rest struck Plaintiff, cracking three of his

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ribs.

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injuries.

According to Plaintiff’s Complaint, on

The wheelchair over-turned and a T-handle

Plaintiff now seeks to recover from Defendant for his

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According to Defendant, it does manufacture the iBOT, which

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is motorized stair-climbing wheelchair that has been approved as

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a Class III device by the Food and Drug Administration (“FDA”)

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through a Pre-Market Approval (“PMA”) process.

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of Mollie F. Benedict, Exhs. A-C.1

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iBOT are directly regulated by the FDA pursuant to the Medical

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Device Amendments (“MDA”), 21 U.S.C. § 360c et seq., to the Food,

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Drug and Cosmetic Act, which contains an express preemption

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clause.

See Declaration

The sale and marketing of the

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The Court hereby takes judicial notice of these FDA
documents, which are matters of public record. See Stengel v.
Medtronic, Inc., 2010 WL 4483970, at *3 (D. Ariz. Nov. 9, 2010).
Consideration of this evidence does not convert the current
motion to one for summary judgment. Id.
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See, e.g., Riegel v. Medtronic, Inc., 522 U.S. 312, 316-20

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(2008).

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any state requirements Plaintiff seeks to impose upon the design,

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manufacture or labeling of the iBOT are preempted by federal law.

Defendant thus argues by way of the instant Motion that

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STANDARD

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A motion for judgment on the pleadings pursuant to

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Rule 12(c) challenges the legal sufficiency of the opposing

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party’s pleadings.

See, e.g. Westlands Water Dist. v. Bureau of

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Reclamation, 805 F. Supp. 1503, 1506 (E.D. Cal. 1992).

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may move for judgment on the pleadings under Rule 12(c) after the

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pleadings are closed but within such time as to not delay trial.

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A motion for judgment on the pleadings should only be

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granted if, accepting as true all material allegations contained

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in the nonmoving party’s pleadings, the moving party “‘clearly

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establishes that no material issue of fact remains to be resolved

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and that he [or she] is entitled to judgment as a matter of

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law.’”

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(9th Cir. 1984) (quoting Charles Alan Wright & Arthur R. Miller,

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Federal Practice and Procedure § 1368 (1969)); Hal Roach Studios,

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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.

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1989)).

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either a “lack of cognizable legal theory” or the “absence of

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sufficient facts alleged under a cognizable legal theory.”

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Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.

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1988).

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///

Any party

Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482

Judgment on the pleadings is also proper when there is

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The standard for evaluating a motion for judgment on the

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pleadings is essentially the same as the standard applied to a

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Rule 12(b)(6) motion.

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867 F.2d 1188, 1192 (9th Cir. 1989).

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“a short and plain statement of the claim showing that the

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pleader is entitled to relief,” to “give the defendant fair

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notice of what the...claim is and the grounds upon which it

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rests.”

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(internal citations and quotations omitted).

Dworkin v. Hustler Magazine, Inc.,
Rule 8(a)(2) requires only

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
Though “a complaint

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attacked by a Rule 12(b)(6) motion” need not contain “detailed

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factual allegations, a plaintiff’s obligation to provide the

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‘grounds’ of his ‘entitlement to relief’ requires more than

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labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do.”

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v. Allain, 478 U.S. 265, 2869 (1986)).

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allegations must be enough to raise a right to relief above the

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speculative level.”

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Id. (quoting Papasan

A plaintiff’s “factual

Id.

Further, “Rule 8(a)(2)...requires a ‘showing,’ rather than a

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blanket assertion, of entitlement to relief.

Without some

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factual allegation in the complaint, it is hard to see how a

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claimant could satisfy the requirements of providing...grounds on

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which the claim rests.”

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omitted).

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state a claim to relief that is plausible on its face.”

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570.

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the line from conceivable to plausible, their complaint must be

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dismissed.”

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Id. at 555 n.3 (internal citations

A pleading must then contain “only enough facts to
Id. at

If the “plaintiffs...have not nudged their claims across

Id.

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Courts have discretion to grant leave to amend in

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conjunction with motions made pursuant to Rule 12(c).

Moran v.

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Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993)

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(citing Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th

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Cir. 1979).

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if it is clear that the deficiencies of the complaint cannot be

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cured by amendment.

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957 F.2d 655, 658 (9th Cir. 1992).

Generally, leave to amend a complaint is denied only

DeSoto v. Yellow Freight Sys., Inc.,

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ANALYSIS

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Defendant moves for judgment on the pleadings arguing that

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each of Plaintiff’s causes of action is preempted by federal law.

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More specifically, Defendant contends Plaintiff’s state law

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claims are preempted by the MDA, which provides:

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[N]o State or political subdivision of a State may
establish or continue in effect with respect to a
device intended for human use any requirement–
(1) which is different from, or in addition to, any
requirement applicable under this chapter to the
device, and
(2) which relates to the safety or effectiveness of the
device or to any other matter included in a requirement
applicable to the device under this chapter.
21 U.S.C. § 360k(a).

Defendant is correct.

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The United States Supreme Court has held that state

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requirements, including state tort law claims, pertaining to

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Class III devices approved via PMA procedures are preempted under

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the MDA, but “only to the extent that they are ‘different from,

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or in addition to’ the requirements imposed by federal law.”

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Riegel, 522 U.S. at 330.
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Notably, the MDA “does not prevent a State from providing a

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damages remedy for claims premised on a violation of FDA

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regulation; the state duties in such a case ‘parallel,’ rather

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than add to, federal requirements.”

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plead “parallel” claims that survive preemption, however, a

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plaintiff “must demonstrate facts (1) showing an alleged

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violation of FDA regulations or requirements related to [the

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device], and (2) establishing a causal nexus between the alleged

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injury and the violation.”

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Id.

In order to properly

Cohen v. Guidant Corp., 2011 WL

637472, *1 (C.D. Cal. 2011).

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Under Riegel and its progeny, Plaintiff’s claims as pled are

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preempted because they are each premised on the impropriety of a

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design, manufacturing or labeling process specifically approved

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by the FDA through its PMA procedures, and they thus constitute

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state law claims imposing requirements that are “different from,

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or in addition to” federal requirements.

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not even attempted to allege that Defendant violated FDA

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requirements in the design, manufacture or labeling of the iBOT,

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and, in his Opposition, argues only that Defendant may be liable

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for his injuries despite compliance with the federal mandates.

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Opposition, 3:4-10.

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governing law and attempts to state causes of action that are

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clearly preempted.

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granted.

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facts supporting the existence of viable “parallel claims” based

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on Defendant’s failure to comply with the FDA-approved standards,

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Plaintiff will be granted leave to amend.

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Indeed, Plaintiff has

In so arguing, Plaintiff ignores the

Accordingly, Defendant’s Motion is hereby

Nonetheless, because Plaintiff could conceivably allege

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CONCLUSION

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For the reasons just stated, Defendant’s Motion for Judgment

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on the Pleadings (ECF No. 9) is GRANTED with leave to amend.2

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Not later than twenty (20) days following the date this

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Memorandum and Order is electronically filed, Plaintiff may (but

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is not required to) file an amended complaint.

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complaint is filed within said twenty (20)-day period, without

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further notice to the parties, this action will be dismissed with

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If no amended

prejudice.
IT IS SO ORDERED.
Dated: August 15, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
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