Lemley v. Red Bull
Filing
23
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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for tfie ^ottfi^ertt BifiCtnct of <(leorgta
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FILED
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,
Plaintiff,
No. 4:17-CV-33
V.
RED BULL NORTH AMERICA, INC.,
Defendant.
ORDER
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.
{''Red
For the reasons
stated below, it is DENIED.
FACTUAL BACKGROUND
The Court assumes the truth of the facts alleged in the
complaint.
Fed.
R.
Civ.
P.
12(b)(6).
Red
Bull,
Inc.
designed, manufactured, tested, marketed, and distributed the
famous energy drink "Red Bull."
contains
caffeine
and
taurine.
Dkt. No. 1 SI 2.
Id.
SI
31.
Red
Red Bull
Bull,
Inc.
markets Red Bull as "provid[ing] benefits to consumers in that
A0 72A
(Rev. 8/82)
it Ogives [them] wings' resulting in increased physical and/or
mental performance."
drinks
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.
He
did so on August 7, 2014 at 8:00 PM, then again the next
morning.
Id.
Id. SI 7.
Thereafter, he was found unresponsive.
He was pronounced dead due to aortic dissection at 2:00
PM on August 8, 2014.
Plaintiff
Ann
February 23, 2017.
design
defect
and
Id.
SISI 7-8.
Edenfield
Lemley
Dkt. No. 1.
failure
filed
this
suit
on
She alleged strict-liability
to
warn;
negligent
design,
manufacture, and sale; negligent failure to warn; fraud; and
wrongful death.
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.
LEGAL STANDARD
A complaint must be ^^a short and plain statement of the
claim showing that the pleader is entitled to relief."
R.
Civ.
P.
8(a)(2).
It
must
go
beyond
^'labels
Fed.
and
conclusions, and a formulaic recitation of the elements of a
cause of action."
555 (2007).
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
necessary
to
theory."
Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.Sd
678,
(11th
684
sustain
Cir.
a
recovery
2001).
under
"Factual
some
viable
allegations
legal
must
be
enough to raise a right to relief above the speculative level
. . . ."
across
Twombly, 550 U.S. at 555.
the
threshold
from
They must send a case
possibility
to
plausibility.
Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009).
DISCUSSION
Red Bull, Inc.'s motion to dismiss will be denied.
Bull,
Inc.'s
shotgun
only
pleading
arguments
and
it
does
are
not
that
the
complaint
adequately
plead
Red
is
a
fraud.
Neither contention succeeds.
I. THE COMPLAINT IS NOT A SHOTGUN PLEADING.
Red Bull, Inc. unpersuasively characterizes the complaint
as
an
improper
shotgun
pleading.
Dkt.
No.
12-1
at
8-9.
Specifically, Red Bull, Inc. says the complaint improperly has
each count "incorporate[ ] by reference all preceding and all
subsequent paragraphs."
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.
Weiland
v.
Palm
Beach
Cty.
Sheriff^ s Office, 792
F.Sd
1313,
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.
Here,
the complaint just ^^provides a detailed factual background,
and then reincorporates that background . . . into each count.
The
allegations
respond," and
counts.
are
they
not
are
so
vague
^'properly
that
Defendants
separated" into
cannot
different
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.
Thus, the
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,
Fed. Prac.
&
Proc. Civ. § 1326 (3d ed.)
connection
with
one
count,
defense,
(''Facts alleged in
or
paragraph
may
be
incorporated by reference in a different count, defense, or
paragraph of the same pleading. . . . When the pleader asserts
several
factual
claims
for
pattern,
unnecessary
relief
or
defenses
incorporation
repetition
of
the
by
that
rest
reference
transactions
on
a
common
eliminates
and
which the pleader relies." (footnotes omitted)).
events
any
upon
II. THE FRAUD CLAIM IS ADEQUATELY PLED.
Lemley's
fraud
claim
satisfies
the
heightened pleading standards for fraud.
ordinary
and
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
deceiving
the
plaintiff;
(4)
that
the
plaintiff
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
Dasher
v.
Davis,
618
S.E.2d
728,
730
{Ga.
Ct.
App.
2005)
(identifying omissions as a way of satisfying first element).
The
complaint
here
alleges
that:
(1)
Red
Bull,
Inc.
kept
silent regarding health risks posed by Red Bull; (2) Red Bull,
Inc. actually or constructively knew of such risks; (3) Red
Bull, Inc.
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.
The complaint
adequately pleads fraud under the ordinary standard.
It
imposed
also
by
satisfies
Federal
Rule
the
of
requires the complaint to state
heightened
Civil
pleading
Procedure
standard
9(b),
which
(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
fraud.
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
in
original).
Here,
the
complaint alleges that
Red
Bull,
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.
This
pleading is adequate under Rule 9(b).
CONCLUSION
For
the
reasons
above.
Red
Dismiss, dkt. no. 12, is DENIED.
Bull,
Inc.'s
Motion
to
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
SOUTHERN
A0 72A
(Rev. 8/82)
DISTRICT OF GEORGIA
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