Lemley v. Red Bull
ORDER denying Red Bull, Inc.'s 12 Motion to Dismiss. Per this Court's previous order, 15 , Red Bull Inc. has 14 days from today's Order to file its answer. Signed by Judge Lisa G. Wood on 5/16/2017. (ca)
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Scott L. Poff, Clerk
United States District Court
By casbell at 8:26 am, May 16, 2017
ANN EDENFIELD LEMLEY,
Individually and as
Administrator of the Estate of
WILLIAM JACOB WADE, Deceased,
RED BULL NORTH AMERICA, INC.,
Before the Court in this products liability and wrongful
death case is Defendant Red Bull North America, Inc.'s
Bull, Inc.") Motion to Dismiss, dkt. no. 12.
For the reasons
stated below, it is DENIED.
The Court assumes the truth of the facts alleged in the
designed, manufactured, tested, marketed, and distributed the
famous energy drink "Red Bull."
Dkt. No. 1 SI 2.
markets Red Bull as "provid[ing] benefits to consumers in that
it Ogives [them] wings' resulting in increased physical and/or
Id. 5 25.
Red Bull and similar energy
have been the subject of media, legal, and medical
scrutiny for their supposed role in heart problems—some fatal.
Id. M 10-23.
Decedent William Jacob Wade started drinking four twelve-
ounce cans of Red Bull a day beginning in 2009.
Id. SI 6.
did so on August 7, 2014 at 8:00 PM, then again the next
Id. SI 7.
Thereafter, he was found unresponsive.
He was pronounced dead due to aortic dissection at 2:00
PM on August 8, 2014.
February 23, 2017.
Dkt. No. 1.
She alleged strict-liability
manufacture, and sale; negligent failure to warn; fraud; and
See generally id.
Red Bull, Inc. moved to dismiss for failure to state a
claim on March 24, 2017.
Dkt. No. 12.
briefed and ripe for decision.
The motion is fully
Dkt. Nos. 12-1, 18, 20.
A complaint must be ^^a short and plain statement of the
claim showing that the pleader is entitled to relief."
conclusions, and a formulaic recitation of the elements of a
cause of action."
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
It has to ''contain inferential allegations from
which [the court] can identify each of the material elements
Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.Sd
enough to raise a right to relief above the speculative level
. . . ."
Twombly, 550 U.S. at 555.
They must send a case
Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009).
Red Bull, Inc.'s motion to dismiss will be denied.
Neither contention succeeds.
I. THE COMPLAINT IS NOT A SHOTGUN PLEADING.
Red Bull, Inc. unpersuasively characterizes the complaint
Specifically, Red Bull, Inc. says the complaint improperly has
each count "incorporate[ ] by reference all preceding and all
Id. at 8; see also Dkt. No. 20 at 5.
That accusation does line up with one of the four species of
shotgun pleadings recently recognized by the Eleventh Circuit.
Sheriff^ s Office, 792
1321 (llth Cir. 2015).
But it misses what is actually wrong
with a shotgun pleading—that such a complaint ''fail[s] to one
degree or another, and in one way or another, to give the
defendant[ ] adequate notice of the claims against [it] and
the grounds upon which each claim rests."
Id. at 1323.
the complaint just ^^provides a detailed factual background,
and then reincorporates that background . . . into each count.
Homonai v. City of Fruitland Park, No. 5:16-CV-610,
2017 WL 1495806, at *3 (M.D. Fla. Apr. 26, 2017).
complaint is not a shotgun pleading.
See id.; Fed. R. Civ. P.
10(c) (""A statement in a pleading may be adopted by reference
elsewhere in the same pleading . . . ."); Wright & Miller,
Proc. Civ. § 1326 (3d ed.)
(''Facts alleged in
incorporated by reference in a different count, defense, or
paragraph of the same pleading. . . . When the pleader asserts
which the pleader relies." (footnotes omitted)).
II. THE FRAUD CLAIM IS ADEQUATELY PLED.
heightened pleading standards for fraud.
As to the ordinary
standard, fraud has five elements:
(1) that the defendant made representations; (2)
that at the time he knew they were false; (3) that
he made them with the intention and purpose of
relied on the representations; and (5) that the
plaintiff sustained the alleged loss and damage as
the proximate result of their having been made.
Bacote v. Wyckoff, 310 S.E.2d 520, 523 (Ga. 1984); see also
(identifying omissions as a way of satisfying first element).
silent regarding health risks posed by Red Bull; (2) Red Bull,
Inc. actually or constructively knew of such risks; (3) Red
kept silent about the risks to induce Wade and
other customers to buy and drink Red Bull; (4) Wade relied on
Red Bull, Inc. to disclose health risks associated with Red
Bull; and (5) Wade died because as a proximate result of Red
Bull, Inc.'s silence.
Dkt. No. 1 SISI 75, 77-81.
adequately pleads fraud under the ordinary standard.
requires the complaint to state
(1) precisely what . . . omissions were made, and
(2) the time and place of each such statement and
the person responsible for . . . not making same,
and (3) the content of such statements and the
manner in which they misled the plaintiff, and (4)
what the defendants obtained as a consequence of the
Ziemba v. Cascade Int^l, Inc., 256 F.3d 1194, 1202 (11th Cir.
2001) (quoting Brooks v. Blue Cross & Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)) (quotation omitted
complaint alleges that
Inc.: (1) kept silent as to facts regarding health risks posed
by Red Bull; (2) it did so between 2009 and August 7, 2014,
the period when Wade regularly drank four Red Bull cans a day;
(3) Wade was misled into thinking Red Bull was not associated
with potential health risks; and (4) Red Bull, Inc. got Wade
to drink about four cans of Red Bull a day for about five
years as a consequence.
Dkt. No. 1
6-7, 75, 79-80.
pleading is adequate under Rule 9(b).
Dismiss, dkt. no. 12, is DENIED.
Per this Court's previous
order, dkt. no. 15, Red Bull, Inc. has 14 days from today's
Order to file its answer.^
^ Accordingly, Lemley's request that default judgment be entered against
Red Bull, Inc. is DENIED.
so ORDERED, this 16th day of May, 2017.
LISA GODBEY WO(»D, JUDGE
UNITED STATES DISTRICT COURT
DISTRICT OF GEORGIA
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