Pommrehn v. Wright Medical Technology, Inc. et al

Filing 14

ORDER denying 4 Motion to Dismiss as moot, by Judge Walker D. Miller on 5/31/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Walker D. Miller
Civil Action No. 11-cv-00202-WDM-CBS
JANET POMMREHN,
Plaintiff,
v.
WRIGHT MEDICAL TECHNOLOGY, INC.,
a Delaware corporation; and
WRIGHT MEDICAL GROUP, INC.,
a Delaware corporation,
Defendants.

ORDER DENYING MOTION TO DISMISS AS MOOT
Miller, J.
This case is before me on the Motion to Dismiss, filed April 25, 2011, by defendants
Wright Medical Technology, Inc. and Wright Medical Group, Inc. (ECF No. 4). Plaintiff
Janet Pommrehn filed a response to the motion to dismiss on May 12, 2011, and, on May
13, 2011, filed an Amended Complaint which Defendants answered on May 26, 2011.
In the motion to dismiss, Defendants argued that Plaintiff’s claims for strict liability
and negligence are barred by the statute of limitations, that Plaintiff failed to adequately
plead her claim for breach of the implied warranty of fitness for a particular purpose, and
that Plaintiff failed to state a claim for fraud, malice, or willful and wanton conduct. Brief in
Support of Motion to Dismiss (ECF No. 5). Plaintiff’s Amended Complaint removes the
claims for implied warranty of fitness of a particular purpose and fraud, malice, or willful and
wanton conduct, thus mooting the motion to dismiss those claims.

In her response to the motion to dismiss, Plaintiff explains her theory of calculating
when her claims of strict liability and negligence arose for purposes of the relevant statutes
of limitations. Additionally, in her Amended Complaint, Plaintiff includes allegations that
she has met the statutes of limitations for her remaining claims. Defendants answered the
Amended Complaint and simply denied the allegations on the statute of limitations issue.
I conclude that, by this denial and by choosing to answer rather than to refile the motion to
dismiss, Defendants are proceeding on the merits of Plaintiff’s claims.
Accordingly, it is ordered:
Defendants’ Motion to Dismiss, filed April 25, 2011 (ECF No. 4), is denied as moot.
DATED at Denver, Colorado, on May 31, 2011.
BY THE COURT:

s/ Walker D. Miller
United States District Judge

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