Homaday v. Smith and Nephew, Inc. et al

Filing 45

ORDER granting 33 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Sterling Medical Services, Inc. Signed by Judge James D. Whittemore on 8/14/2013. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RUTH MARSAR, individually and as
Personal Representative of the Estate of
Joseph Richard Marsar, Jr.,
Plaintiff,
Case No. 8:13-CV-1244-T-27TGW

vs.
SMITH AND NEPHEW, INC.,
a Tennessee corporation; et al.,
Defendants.

--------------------------------------------------------------·'
ORDER
BEFORE THE COURT is Defendant Sterling Medical Services, Inc.'s Motion to Dismiss
Plaintiffs Second Amended Complaint (Dkt. 33). Plaintiff has not responded. The motion is
GRANTED.
The pleading standard in federal civil actions is fairly straightforward, and not difficult to
satisfy:
Rule 8 requires that a complaint contain "a short and plain statement" of the grounds
for relief, and that each allegation be pleaded in a "simple, concise, and direct"
manner. Fed.R.Civ.P. 8(a)(2), (d)(l). The complaint must give the defendants fair
notice of the bases for relief and the grounds upon which the claim rests. (citation
omitted). A pleading that uses just labels and conclusions or a formulaic recitation
of the elements of a cause of action will not meet Rule 8(a)(2). Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Rather, to survive a
motion to dismiss, "a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Id.
(quotations and citations omitted).
Liebman v. Deutsche Bank Nat. Trust Co., 462 Fed.Appx. 876, 878 (11th Cir. 2012).
1

Plaintiff's Amended Complaint was dismissed sua sponte for non-compliance with Rule
8(a)(2) and because it constituted "a quintessential example of what we and other courts have
characterized as 'shotgun pleading'" (Dkt. 22, p. 2, quoting BMC Industries, Inc. v. Barth Industries,
Inc., 160 F.3d 1322, 1327 n.6 (11th Cir. 1998). Apparently not appreciating the requirements of
Rule 8(a), Plaintiff has filed a Second Amended Complaint (Dkt. 23) which suffers from several of
the same infirmities. As Sterling Medical Services, Inc. observes:
Rather than address the 'numerous repetitive and unnecessary factual allegations and
legal conclusions,' Plaintiff merely shuffled them around. In turn, instead of
clarifying the allegations as to 'each separate Defendant,' Plaintiff persists in
'lumping' them together. The Second Amended Complaint continues to violate the
Court's directions and continues to require 'judicial intervention.' ... Dismissal is
necessary once agam.
(Dkt. 33, p. 7).
The Amended Complaint consisted of 57 pages and 193 separate allegations (exclusive of
sub-parts). The Second Amended Complaint consists of 42 pages with 184 separate allegations
(exclusive of sub-parts). Rather than 129 preliminary allegations, there are now 122 paragraphs of
preliminary allegations (excluding sub-parts). While references to non-attached exhibits have been
eliminated, the same six claims are asserted against the same eight Defendants, five of which
commingle one or more Defendants without distinguishing among them.
Plaintiffhas eliminated the shotgun style of incorporating all preceding paragraphs into each
claim. Notwithstanding, by incorporating the 122 paragraphs of preliminary allegations into each
claim, it remains "virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief." Anderson v. Dist. Bd. a/Trustees ofCent. Fla. Comm. College, 77 F.3d
364, 366 (11th Cir. 1996). Neither the Court, nor the Defendant, should be required to "sift through

2

the facts presented and decide for [itself] which are material to the particular cause of action
asserted." See Strategic Income Fund, L.L.C. v. Spear, Leeds &Kellogg Corp., 305 F.3d 1293, 1296
n.9 (11th Cir. 2002).

In short, the Second Amended Complaint is not a meaningful improvement over the
Amended Complaint and is subject to dismissal. See Goodison v. Washington Mut. Bank, 232
Fed.Appx. 922, 923 (11th Cir. 2007) (dismissal proper where no meaningful attempt to comply with
order). 1 Plaintiffhas once again included "numerous repetitive and unnecessary factual allegations
and legal conclusions, including detailed citations to the Code ofFederal Regulations and quotations
I

from various reports and other documents .... " More specifically, Plaintiff includes unnecessary
"Definitions" and "Joint Venture/Enterprise" sections, argumentative legal contentions(~~ 34, 41,
45, 80, 82-83, 87, 96-98, 100-102), summarizes FDA investigations(~~ 67-94, 105, 121), includes
lengthy single spaced responses to FDA observations (~ 82), references various CFRs (~~ 104, 107114, 116-121), and quotes from lengthy FDA inspection observations(~ 107).
Like the Amended Complaint, the Second Amended Complaint contains "multiple pages of
irrelevant factual allegations and redundant narratives," subjecting it to dismissal. Goodison v.

Washington Mutual Bank, 232 Fed. Appx. at 923. On the other hand, "a complaint-so long as it is
minimally sufficient to put a defendant on notice of the claims against him-will not fail for mere
surplusage." Baileyv. Janssen Pharmaceutica, Inc., 288 Fed.Appx. 597, 603 (11th Cir. 2008). Here,
however, the claims asserted against Sterling are not minimally sufficient, and consist essentially of
bare legal conclusions and recitation of the legal elements of each claim.

1 In

jurisdiction.

a separate order, the claim against Donna Petroff and Eric Haertle has been dismissed for lack of personal
·

3

Sterling Medical Services, Inc.
In summary, Plaintiff alleges that Sterling Medical Services, Inc. ("Sterling") purchased and
distributed alleged defective alcohol pads(~ 14, 32), Decedent, Joseph Marsar purchased the alcohol
pads from Sterling(~ 52), Sterling "knew or should have known" that the TRIAD Defendants failed
to properly manufacture, test, and label the alcohol pads, and Sterling "caused tainted and
contaminated products to be entered into the stream of commerce."(~ 122). Plaintiff brings three
claims against Sterling, negligence (Claim III), strict liability (Claim IV), and breach of implied
warranty (Claim V). Sterling contends each claim fails to state a cause of action.
Plaintiffs negligence claim (Claim III) does not include any facts supporting the contention
that Sterling knew or should have known of the alleged defects in the alcohol pads. There is no
allegation that the defects were communicated to Sterling or how Sterling was put on notice that the
products were defective. Indeed, Plaintiff alleges that although the TRIAD Defendants knew of the
defects, they failed to fulfill assurances made to the FDA to address and correct them, delayed a
recall of the product, and continued to distribute the allegedly defective alcohol pads (Dkt. 23, ~ 5,
84). These allegations contradict the conclusory allegations that Sterling knew or should have
known of the defects. 2
The Fourth Claim purports to plead strict liability. However, Plaintiff seemingly alleges both
a design defect and a manufacturing defect. There are no factual allegations supporting a design
defect, however. To the extent, therefore, Plaintiff attempts to assert a design defect, the Fourth
Claim is deficient.

2 Moreover, the allegations in Claim III reflect less than careful drafting. For example, in, 144, Plaintiff alleges
that Sterling "had a legal duty to conform its conduct in accordance with that of a reasonable person, which includes .
. . acting with negligence, conscious disregard, despicable or other wrongful conduct." (emphasis added). Obviously,
Plaintiff did not intend to allege that Sterling had a duty to act negligently.

4

Finally, Plaintiff's Fifth Claim for breach of implied warranty likewise fails to state a cause
of action. First, it lumps Sterling in with the TRIAD Defendants without distinguishing among
them, merely referring to them as ''these Defendants." No facts unique to Sterling are alleged. The
legal elements are pleaded, with bare conclusions, contrary to the pleading standard of Ashcroft v.

Iqbal, supra.
In conclusion, the Second Amended Complaint is not a meaningful improvement over the
Amended Complaint. Moreover, it fails to allege a cause of action against Sterling. The Second
Amended Complaint is accordingly DISMISSED. Defendant Smith & Nephew, Inc. need not file
a response to the Second Amended Complaint.
If Plaintiff intends to file a third amended complaint, Plaintiff shall file a motion seeking to
reopen the case and for leave to amend, attaching the proposed amended pleading as an exhibit. Long

v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999). Plaintiff is reminded that any proposed complaint
shall comply with Rule 8(a)(2), Federal Rules of Civil Procedure.
The Clerk is directed to ADMINISTRATIVELY CLOSE this case.

4:of

DONE AND ORDERED thls

Copies to: Counsel of Record

5

August, 2013.