Schmidt v. C.R. Bard. Inc. et al
Filing
16
ORDER denying 9 Motion to Dismiss; denying 9 Motion to Strike. Signed by Judge B. Avant Edenfield on 10/14/14. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
RICHARD SCHMIDT,
Plaintiff,
6:14-cv-62
V.
C.R. BARD, INC. and DAVOL, INC.,
Defendants.
ORDER
I. INTRODUCTION
C.R. Bard, Inc. and Davol, Inc.
("Defendants") have moved to dismiss
Plaintiff Richard Schmidt's Complaint for
failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). ECF No.
13 at 1. In the alternative, Defendants have
moved to strike Plaintiffs request for
punitive damages. Id.
For the reasons set forth below, the
Court DENIES Defendants' motion to
dismiss and Defendants' motion to strike
Plaintiffs prayer for punitive damages.
II. BACKGROUND
On July 12, 2005, Plaintiff underwent a
hernia repair surgery in Michigan during
which his surgeon implanted him with a
Bard Mesh PerFixTM Plug ("Plug"), a
product that Defendants designed,
manufactured, and sold. ECF No. 1 at 2.
Subsequently, Plaintiff suffered severe pain
and permanent bodily injuries. Id. at 3. As
a result of these injuries, on September 14,
2011, Plaintiff had to have the Plug
surgically removed at Georgia Regional
Medical Center in Bulloch County, Georgia.
Id. Plaintiff alleges that his injuries were the
result of the Plug's defective design. Id. In
support of this allegation, Plaintiff has listed
at least nine alleged defects in the Plug's
design. Id. at 3-4. Additionally, Plaintiff
alleges that Defendants were aware of these
defects, failed to warn Plaintiffs physicians
of the risks associated with the defects, and
even represented that the Plug was safe in
order to sell their product. Id. at 4-5.
On June 13, 2014, based on these factual
allegations, Plaintiff filed his Complaint in
this case advancing claims of negligence,
strict liability defective design, failure to
warn, and breach of warranty. Id at 7-13.
Plaintiffs Complaint also seeks punitive
damages. Id. at 14. Plaintiff has since
abandoned his breach of warranty claim.
ECFN0. 11 at 9.
III. STANDARD OF REVIEW
In considering a Federal Rule of Civil
Procedure 12(b)(6) motion, all facts in the
plaintiffs complaint "are to be accepted as
true and the court limits its consideration to
the pleadings and exhibits attached
thereto." GSW, Inc. v. Long Cnty., 999 F.2d
1508, 1510 (11th Cir. 1993). The Court,
however, is not limited to the four corners of
the pleadings, rather a proper review of a
motion to dismiss "requires the reviewing
court to draw on its judicial experience and
common sense." See Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
A complaint will not be dismissed so
long as it contains factual allegations
sufficient "to raise a right to relief above the
speculative level." Bell Ad. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see
Iqbal, 556 U.S. at 678 (claim must have
"facial plausibility"); Edwards v. Prime,
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
Yet, "a plaintiffs obligation to provide
'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions,
and a formulaic recitation of the elements of
a cause of action will not do." Twombly,
550 U.S. at 555 (alteration in original).
In Iqbal, the Court further explained the
required level of specificity:
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. The plausibility
standard is not akin to a probability
requirement, but it asks for more than a
sheer possibility that a defendant has
acted unlawfully.
556 U.S. at 678 (internal citation and
quotation omitted).
In order to assess the plausibility of a
complaint, a court must be mindful of two
principles. "First, the tenet that a court must
accept as true all of the allegations contained
in a complaint is inapplicable to legal
conclusions."
Id.
"Second, only a
complaint that states a plausible claim for
relief survives a motion to dismiss." Id. at
679. Thus, Iqbal suggests a "two-pronged
approach" to assessing a defendant's Rule
12(b)(6) motion: "1) eliminate any
allegations in the complaint that are merely
legal conclusions; and 2) where there are
well-pleaded factual allegations, 'assume
their veracity and then determine whether
they plausibly give rise to an entitlement to
relief." Am. Dental Assn v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679)).
Importantly, however, the "plausibility
standard is not akin to a 'probability
requirement' at the pleading stage." Id. at
1289. Instead, it "simply calls for enough
fact to raise a reasonable expectation that
discovery will reveal evidence of the
necessary elements" of a plaintiffs claim for
relief. See McCray v. Potter, 263 F. App'x
771, 773 (11th Cir. 2008) (quoting
Twombly, 550 U.S. at 556).
IV. ANALYSIS
Defendants have moved to dismiss
Plaintiff's Complaint on the grounds that it
fails to state a claim under both strict
liability and negligence theories of recovery.
ECFN0. 10at6, 11.
A. Choice of Law
As a preliminary matter, the Court must
identify which state's laws apply in
assessing Defendants' motion to dismiss.
Defendants have argued that "Plaintiff's
failure to plead a factual basis to support his
claims . . . makes it nearly impossible to
determine what state law should apply." Id
at 6. "In a case founded on diversity
jurisdiction, the district court must apply the
forum state's choice of law rules."
Federated Rural Elec. Ins. Exch. v. R.D.
Moody & Assocs., Inc., 468 F.3d 1322, 1325
(11th Cir. 2006). "Conflict of laws issues in
tort cases brought in Georgia are governed
by the rule of lex loci delicti, which requires
application of the substantive law of the
place where the tort or wrong occurred."
Carroll Fulmer Logistics Corp. v, Hines,
710 S.E.2d 888, 890 (Ga. Ct. App. 2011).
the use intended and its condition when sold
is the proximate cause of the injury
sustained." Hall v. Scott USA, Ltd., 400
S.E.2d 700, 703 (Ga. Ct. App. 1990)
(emphasis omitted) (quoting Talley v. City
Tank Corp., 729 S.E.2d 264, 269 (Ga. Ct.
App. 1981)) (internal quotation marks
omitted). In order to establish a prima facie
case for strict products liability in Georgia, a
plaintiff must show that (I) the defendant
was a manufacturer; (2) the defendant sold a
defective product; and (3) the product's
defects were the proximate cause of
plaintiffs injuries. See O.C.G.A. § 51-111 (b)(1). A design defect is a legal
conclusion that a court arrives at by utilizing
"a balancing test whereby the risks inherent
in a product design are weighed against the
utility or benefit derived from the product."
Banks v. IClAmericas, Inc., 450 S.E.2d 671,
673 (Ga. 1994). This test "incorporates the
concept of 'reasonableness." Id. Thus, the
risk-utility analysis encompasses a variety of
factors applicable in different factual
scenarios, not one of which is dispositive.
See Ogletree v. Navistar Intl Transp. Corp.,
500 S.E.2d 570, 571 (Ga. 1998); see also
Raymond v. Amada Co., Ltd, 925 F. Supp.
1572, 1578 (N.D. Ga. 1996) ("Consistent
with the mandate to weigh the product's risk
against its utility, facts impinging upon that
risk are not dispositive but are to be
balanced with other factors against the
benefit derived from the product.").
In response to Defendants' arguments
regarding uncertainty as to the law
applicable to this action, Plaintiff asserts his
injuries occurred while he was a resident of
Georgia, "long after the implant" in
Michigan. ECF No. 11 at 5. Mindful that
the Court's task at the motion to dismiss
stage is not limited to the four corners of the
complaint, but instead is an exercise in
common sense, see Iqbal, 556 U.S. at 679,
the Court finds that Plaintiff's Complaint
supports this argument. Plaintiffs Plug was
implanted on July 12, 2005, in Michigan,
and it was not until September 14, 2011, in
Georgia, that Plaintiffs injuries caused him
to have the implant removed. ECF No. 1 at
2-3. It would be unreasonable to think that a
substantial amount of Plaintiff's injuries
occurred in Michigan over the course of a
period longer than six years before Plaintiff
moved to Georgia and had surgery to
remove the Plug. Rather, common sense
compels the conclusion that at least a
substantial amount, if not all, of the injuries
allegedly caused by the Plug's alleged
defects occurred in Georgia. Therefore,
because "the last event . . . necessary to
make [Defendants] liable for the alleged
tort[s]" likely occurred in Georgia, the Court
applies Georgia law in assessing
Defendants' motion to dismiss. See Panik v.
Dunes Viii. Props., LLC, 744 S.E.2d 900,
902 (Ga. Ct. App. 2013) (quotation omitted).
B. Plaintiff Has Sufficiently Pled His
Strict Liability Design Defect
Claim Under Georgia Law
Defendants argue that Plaintiff has failed
to state a strict liability design defect claim
because Plaintiff has failed to allege any
defects specific to his Plug and, therefore,
no reasonable inferences regarding causation
can be drawn. ECF No. 10 at 7. Further,
Under Georgia law, "strict liability is
imposed for injuries suffered because the
property when sold by the manufacturer was
not merchantable and reasonably suited to
C]
liability action" makes it not obvious which
of many alleged defects might have caused
Plaintiff's injury, Plaintiff may set out
various alternative or hypothetical sources
of his injury. See Bailey v. Janssen
Pharmaceutica, Inc., 288 F. App'x 597, 605
(11th Cir. 2008) (citing Fed. R. Civ. P.
8(d)(2)). "Nothing in Rule 8(a), Twombly,
Iqbal, or any other binding precedent
requires a plaintiff to specifically plead facts
that establish every element (e.g., causation)
in order to state a claim." Edwards v. Wis.
Pharmacal Co., 987 F. Supp. 2d 1340,
1345-46 (N.D. Ga. 2013).
Defendants argue, Plaintiff's design defect
claim must "fail[] because he alleges no
safer alternative by which [Defendants] may
have designed the Bard PerFixTM Plug." Id.
at 8. Defendants' arguments, however,
misconceive what Plaintiff must plead to
weather a Rule 12(b)(6) motion and what
Georgia's risk-utility analysis requires. For
the following reasons, Defendants' motion
to dismiss Plaintiff's design defect claim
fails.
First, Defendants' contention that
Plaintiff must identify a specific design
defect present in his particular Plug asks too
much of Plaintiff at this stage in litigation.
Contrary to Defendants' argument that
Plaintiff's Complaint is silent as to design
defects, id., the Complaint lists at least nine
specific alleged design defects. See ECF
No. 1 at 11-12. Thus, this is not a situation
where, as Defendant contends, the
Complaint is so completely devoid of
reference to a design defect that "it is
impossible to draw any reasonable inference
that a design defect caused plaintiff's
injuries." ECF No. 10 at 7.
What is required, under both Georgia
law and the Federal Rules of Civil
Procedure, is an allegation of specific design
defects from which the Court can draw a
reasonable inference that at least one of the
Cf
defects caused Plaintiffs injuries.
Coney v. Mylan Pharm., Inc., 2012 WL
170143, at *6 (S.D. Ga. Jan. 19, 2012)
(dismissing plaintiffs claims because he
failed to assert any specific defects from
which the court could draw a reasonable
inference of causation). Plaintiff has
satisfied that requirement here.
To be sure, a bald assertion that the Plug
was defective in design when it left
Defendants' hands, was unreasonably
dangerous, and the foreseeable risks
outweighed the Plug's benefits would be
insufficient to survive a motion to dismiss.
See, e.g., Moore v. Mylan Inc., 840 F. Supp.
2d 1337, 1344-45 (N.D. Ga. 2012). But
Plaintiff has done much more here. He has
alleged a litany of specific defects, any one
of which reasonably could have caused the
injuries he complains of. See ECF No. 1 at
11-12. At this stage of the proceedings,
when "[t]he very nature of a products
Second, Defendants' focus on Plaintiffs
failure to allege a "safer alternative by
which Bard may have designed the" Plug is
misplaced. See ECF No. 10 at 8. At the
outset, the Court notes that, contrary to
Defendants' argument, Plaintiff has indeed
identified a safer, equally-effective
alternative design to the Plug. Plaintiff's
Complaint alleges that the Plug's design is
defective because the risks associated with
the design do not outweigh its benefits
because "the risk of recurrence of the hernia
is no better than with native tissue repairs
4
J
and other hernia repair procedures."
ECF No. 1 at 5.
The burden ultimately will be on
Plaintiff to present evidence that the risks of
the Plug's design outweigh the benefits of
that design. Wheat v. Sofamor, S.N.C., 46 F.
Supp. 2d 1351, 1361 (N.D. Ga. 1999). But
the determination of whether or not the Plug
is defective under Georgia's risk-utility
analysis generally is a question for the jury.
See Bryant v. Hoffman-La Roche, Inc., 585
S.E.2d 723, 730 (Ga. Ct. App. 2003).
Accordingly, at this early stage of the
proceedings it would be improper for the
Court to require Plaintiff to do more than he
has done here—i.e., set forth factual
allegations from which the Court can draw a
reasonable inference that the Plug was
defectively designed. See cf Bryant v.
F. Supp. 2d -, 2014 WL
BGHA, Inc.,
1271689, at *4 (M.D. Ga. Mar. 27, 2014)
(even "[tjo prevail at summary judgment, a
defendant must 'show plainly and
indisputably an absence of any evidence that
a product as designed is defective."
(quoting Ogletree, 522 S.E. 2d at 470)). As
such, the Court finds that Plaintiff has
sufficiently pled that the Plug was
defectively designed.
See
Notwithstanding Plaintiff's allegation of
a safer alternative to the Plug, at this point in
the proceedings Plaintiff need not establish
that the Plug was indeed defective, he
merely must set forth sufficient facts from
which the Court can reasonably infer that
the design was defective. See Frazier v.
My/an Inc., 911 F. Supp. 2d 1285, 1297
(N.D. Ga. 2012). To be sure, in Georgia
"[t]he 'heart' of a design defect case is the
reasonableness of selecting from among
alternative product designs and adopting the
safest feasible one." Jones v. NordicTrack,
Inc., 550 S.E.2d 101, 103 (Ga. 2001) (citing
Banks, 450 S.E.2d at 674). "However,
although Banks identifies the existence of an
alternative design as one factor affecting the
risk-utility analysis, it does not indicate that
Bodymasters
such fact is controlling."
Sports Indus., Inc. v. Wimberley, 501 S.E. 2d
556, 560 (Ga. Ct. App. 1998); see Timmons
v. Ford Motor Co., 982 F. Supp. 1475, 1479
(S.D. Ga. 1997) ("Although the Georgia
Supreme Court placed great emphasis on
alternative designs, alternatives are not the
sole factor."); see also Volkswagen of Am.,
Inc. v. Gentry, 564 S.E.2d 733, 741 (Ga. Ct.
App. 2002) (finding "no error in the trial
court's failure to charge that [Plaintiffs] had
to offer proof of an alternative, safer design,
practicable under the circumstances"). Thus,
although the existence of an alternative
design is an important factor, there is no
talismanic requirement that Plaintiff allege
and prove that there was a safer feasible
alternative design. See Raymond, 925 F.
Supp. at 1578.
The Court finds that Plaintiff has set
forth a sufficient factual basis to raise a
reasonable expectation that discovery will
reveal evidence regarding which, if any, of
the alleged defects caused Plaintiff's
injuries. See McCray, 263 F. App'x at 773.
Therefore, Defendants' motion to dismiss
Plaintiff's strict liability design defect claim
is denied.
5
C. Plaintiff Has Sufficiently Pled His
Failure to Warn Claim'
Under Georgia law, "[i]n standard
products liability cases premised on a failure
to warn, Georgia law insists that a plaintiff
show that the defendant had a duty to warn,
that the defendant breached that duty, and
that the breach proximately caused the
Dietz v. Smithkline
plaintiff's injury."
Beecham Corp., 598 F.3d 812, 815 (11th
Cir. 2010). "[T]he duty to warn arises
whenever the manufacturer knows or
reasonably should know of the danger
arising from the use of its product."
Chrysler Corp. v. Batten, 450 S.E.2d 208,
211 (Ga. 1994). "This duty may be
breached by (1) failing to adequately
communicate the warning to the ultimate
user or (2) failing to provide an adequate
warning of the product's potential risks."
Thornton v. E.J. Du Pont De Nemours &
Co., 22 F.3d 284, 289 (11th Cir. 1994).
However, a manufacturer of medical devices
does not have a duty to warn ultimate users
of the dangers associated with its product.
Rather, a medical device manufacturer "has
a duty to warn the patient's doctor, who acts
as a learned intermediary between the
patient and the manufacturer." McCombs v.
Synthes (U.S.A.), 587 S.E.2d 594, 595 (Ga.
2003).
Defendants argue that Plaintiff has failed
to state a claim for strict liability failure to
warn, because Plaintiff merely alleges that
'Although Plaintiff styles his failure to warn claim as
a strict liability claim, failure to warn under Georgia
law is "based on a negligence theory of product
liability." Mack Trucks, Inc. v. Conkle, 436 S.E.2d
635, 637 (Ga. 1993). Therefore, the Court treats
Plaintiff's failure to warn as a claim for negligent
failure to warn.
the warnings, if any, provided to Plaintiffs'
doctors were inadequate and because
Plaintiff fails to identify any warning
provided to Plaintiffs physician or its
inadequacy. ECF No. 10 at 10 (citing ECF
No. 1 at 12). However, reading Plaintiffs
Complaint holistically, the Court finds that
Plaintiff has sufficiently pled his failure to
warn claim.
Plaintiff first alleges that prior to the
time that his Plug was implanted in him,
"Defendants were aware of or should have
been aware of' at least nine specific defects.
See ECF No. 1 at 5. While this allegation is
not included under "Count II" of Plaintiffs
Complaint but is included instead under his
"Factual Allegations," "the Court cannot
ignore the prior allegation[] . . . even if [it is]
not reiterated under 'Count [II]." See
Wiggins v. McHugh, 2010 WL 1640968, at
*3 (S.D. Ga. Apr. 22, 2010). Plaintiff
further alleges that Defendants failed to
warn his healthcare providers of those risks
and, that "[h]ad Defendants adequately
warned Plaintiffs healthcare providers of
the risks associated with the [Plug], the
healthcare providers acting as reasonably
prudent healthcare providers would have
elected not to use the [Plug] to repair [his]
hernia." ECF No. I at 12. Finally, Plaintiff
alleges that as a result of Defendants' failure
to warn, "Plaintiff suffered serious bodily
injuries." Id. at 12.
Despite the fact that Plaintiff has not
identified the specific inadequate warnings
as of yet, the Court finds that these
allegations "provide sufficient factual detail
to state a plausible failure to warn claim."
See Henderson v. Sun Pharm. Indus., Ltd.,
2011 WL 4024656, at *4 (N.D. Ga. June 9,
2011) (denying a motion to dismiss a failure
to warn claim founded on similar factual
allegations). Therefore, the Court denies
Defendants' motion to dismiss Plaintiff's
failure to warn claim.
motion to dismiss Plaintiffs negligence
claim is denied and the Court will
consolidate Plaintiffs negligence and design
defect claims under one count.
D. Plaintiff Has Sufficiently Pled His
Negligence Claim Based on Design
Defect
Federal Rule of Civil Procedure 12(f)
allows the Court on its own, or on motion by
either party, to "strike from a pleading an
insufficient defense or any redundant,
immaterial, impertinent, or scandalous
matter." Fed. R. Civ. P. 12(f).
E. Defendants' Motion to Strike
Plaintiffs Complaint purports to
advance negligence claims premised on both
negligent design and negligent manufacture.
ECF No. 1 at 7. But under Georgia law, "[a]
manufacturing defect is a defect that is
'measurable against a built-in objective
standard or norm of proper manufacture."
Jones v. Amazing Prods., Inc., 231 F. Supp.
2d 1228, 1236 (N.D. Ga. 2002) (quoting
Banks, 450 S.E.2d at 673 n. 2). Plaintiff has
provided no factual basis from which the
Court can reasonably infer that the Plug
implanted in him deviated from the
Defendants' otherwise proper manufacturing
specifications. See Id. Therefore, Plaintiff
cannot advance negligence claims
predicated on alleged manufacturing defects.
See Miller v. Ford Motor Co., 653 S.E.2d
82, 84 (Ga. Ct. App. 2007) ("In order to
establish a negligent manufacturing claim,
the plaintiff must come forward with
evidence that . . . there was a defect in the
product when it left the manufacturer. ..
Motions to strike are disfavored and
will be denied unless the pleading
sought to be stricken is clearly
insufficient as a matter of law.
Generally, a court will not exercise
its discretion to strike "unless the
matter sought to be omitted has no
possible relationship to the
controversy, may confuse the issues,
or otherwise prejudice a party."
Knous v. United States, 981 F. Supp. 2d
1365, 1366-67 (N.D. Ga. 2013) (citation
omitted) (quoting Bank of the Ozarks v.
Khan, 903 F. Supp. 2d 1370, 1376 (N.D. Ga.
2012)).
Defendants have moved the Court to
strike Plaintiffs prayer for punitive
damages, though they seem to conflate the
standard for a motion to dismiss with the
standard for a motion to strike. ECF No. 10
at 17-18 (asking the Court to strike
Plaintiffs request for punitive damages, but
applying Iqbal's motion to dismiss
standard).
With regard to Plaintiffs negligence
claims predicated on alleged design defects,
both negligence and design defect "claims
use the same risk-utility analysis, and
therefore will be treated as one claim."
Frazier, 911 F. Supp. 2d at 1299-1300
(citing Kelley v. Hedwin Corp., 707 S.E.2d
895, 898-901). Accordingly, Defendants'
A survey of relevant case law and
commentary leads the Court to the
conclusion that striking a prayer for relief
7
Rule 12(f) motions are "not intended to
'procure the dismissal of all or part of a
complaint." (quoting Rockholt v. United Van
Lines, 697 F. Supp. 383, 386 (D. Idaho
1988))).
pursuant to a Rule 12(f) motion is proper
only where the relief requested is not
available as a matter of law. See, e.g.,
Hodge v. Orlando Utils. Comm 'n, 2009 WL
4042930, at *4 (M.D. Fla. Nov. 23, 2009)
("[A] prayer for relief not available under
the applicable law is properly subject to a
motion to strike."); Baldwin v. Pea/ce, 2009
WL 1911040, at *1 (W.D. Pa. July 1, 2009)
(concluding "that where a claim for relief is
precluded by law . . . a motion to strike is a
proper method for narrowing the damages
aspect of the case"); Rokosik v. City of Chi.,
Dept. of Police, 1999 WL 966098, at *2..3
(N.D. Ill. Oct. 13, 1999) (striking prayer for
compensatory damages as unrecoverable
under the ADEA); Erhard v. Local Union
Co. No. 604, 914 F. Supp. 954, 956
(W.D.N.Y. 1996) ("[T]he Court may strike
plaintiff's demand for punitive damages as
immaterial or impertinent only if punitive
damages are not recoverable . . . in this type
of action."); see also 2 Moore's Federal
Practice § 12.37[3], at 12-130 (3d ed. 2011)
("[M]otions to strike requests for certain
types of relief, such as punitive. . . damages,
are generally granted if such relief is not
recoverable under the applicable law."). But
Defendants here do not argue that punitive
damages are not available for the claims
stated in Plaintiffs Complaint. Rather, they
challenge the factual basis of Plaintiffs
prayer for punitive damages. ECF No. 10 at
18. However, "[t]he absence of allegations
supporting a particular theory of recovery
should not provide grounds for striking a
claim." Moore's Federal Practice, supra, §
12.37[3], at 12-130; see also Hutchings v.
Fed Ins. Co., 2008 WL 4186994, at *2
(M.D. Fla. Sept. 8, 2008) (concluding that
In such situations, a number of courts
have concluded, either expressly or
impliedly, that a Rule 12(b)(6) motion is the
proper vehicle for challenging the
sufficiency of a prayer for relief. See, e.g.,
Taylor v. MillerCoors, LLC, 2014 WL
4179918, at *1 (M.D. Ga. Aug. 20, 2014)
(granting, without comment as to propriety,
motions to dismiss plaintiffs claim for
punitive damages); Pate v. Winn-Dixie
Stores, Inc., 2014 WL 895610, at *2 (S.D.
Ga. Mar. 6, 2014) (Wood, C.J.) (treating,
without comment, defendant's request to
strike plaintiffs prayer for punitive damages
as a motion to dismiss prayer); Kelley v.
Corrs. Corp. of Am., 750 F. Supp. 2d 1132,
1148 (E.D. Cal. 2010) ("Defendant's motion
to strike Plaintiffs claims for punitive
damages pursuant to Rule 12(f) is construed
by the court to be a motion to dismiss
pursuant to Rule 12(b)(6)."); Beaulieu v. Bd.
of Trs. of Univ. of W. Fla., 2007 WL
2900332, at *8 (N.D. Fla. 2007)
("Defendant's motion to strike is more
properly characterized as a motion to
dismiss and shall be treated as such.");
Lahey v. JM Mortg. Servs., Inc., 2000 WL
420851, at *7 (N.D. Iii. Apr. 18, 2000)
("[T]he correct Rule under which a
defendant asserts that a plaintiff is not
entitled to punitive damages[] is Rule
12(b)(6).") However, a fresh review of
cases on point convince the Court that
subjecting Plaintiffs prayer for relief to
8
dismissal pursuant to a Rule 12(b)(6) motion
is improper.
"It is clear. . . that a request for punitive
damages is not a 'claim' within the meaning
of [Federal Rule of Civil Procedure] 8(a)(2);
it is only part of the relief prayed for in a
claim." Cohen v. Office Depot, Inc., 184
F.3d 1292, 1297 (11th Cir. 1999), vacated in
part on other grounds by 204 F.3d 1069
(11th Cir. 2000); see also Bowden v. City of
Franklin, Ky., 13 F. App'x 266, 276 (6th
Cir. 2001) ("Count VI is not a claim for
relief but a request for punitive damages.").
"[A] plain reading of Rule 12(b)(6) indicates
that the rule may be used only to dismiss a
'claim' in its entirety." Janis v. Nelson,
2009 WL 4505935, at *7 (D.S.D. Nov. 24,
2009). To be sure, the requested relief is
irrelevant to a court's determination as to
whether or not a plaintiff has stated a claim
for relief for purposes of Federal Rule of
Civil Procedure 8(a)(2). Whether a claim
for relief should be dismissed under Rule
12(b)(6) "turns not on 'whether [a plaintiff]
has asked for the proper remedy but whether
he is entitled to any remedy." See City of
Los Angeles v. Lyons, 461 U.S. 95, 130
(1983) (quoting Wright & Miller, Federal
Practice and Procedure § 1664). It follows
then that Rule 12(b)(6), a vehicle for testing
whether a plaintiff is entitled to relief, see
Acosta v. Campbell, 309 F. App'x 315, 317
(11th Cir. 2009), is an improper vehicle for
challenging the sufficiency of a prayer for
relief, which is merely part of the relief
sought. Accordingly, "punitive damages is
not a 'cause of action' subject to dismissal
under Rule 12(b)(6)."
Rathbone v.
Haywood Cnty., 2008 WL 2789770, at *1
(W.D.N.C. July 17, 2008) (treating motion
to dismiss a prayer for punitive damages as a
motion to strike and ultimately striking the
prayer as unrecoverable as a matter of law).
As such, the Court disagrees with
Iqbal' s
Defendants' contention that
standards governing statements of claims
mandates dismissal of Plaintiffs prayer for
punitive damages. See ECF No. 10 at 18.
Plaintiffs request for
Therefore,
punitive damages is subject neither to
dismissal nor striking.
This is not to say, however, that
Defendants are not entitled to know the facts
supporting Plaintiffs demand for punitive
damages. See Apex Solutions of Cincinnati
LLC v. Apex Energy Solutions of Ind, LLC,
2010 WL 4642902, at *9 (S.D. Ohio Nov. 9,
2010). Indeed, Georgia law requires "[a]
award of punitive damages [to] be
specifically prayed for in the complaint."
O.C.G.A. § 51-12-5.1(d)(1). Under this
statute, a lone statement in the prayer that
plaintiff be awarded punitive damages is
insufficient. Drug Emporium, Inc. v. Peaks,
488 S.E.2d 500, 507 (Ga. Ct. App. 1997).
However, when a specific prayer for
punitive damages is coupled with allegations
in the body of the Complaint that are
sufficient to support an award of punitive
damages under O.C.G.A. § 5 1-12-5. 1 (b), the
requirements of O.C.G.A. § 51-12-5.1(d)(1)
are met. See K-Mart Corp. v. Hackett, 514
S.E.2d 884, 889 (Ga. Ct. App. 1999). Here,
in addition to specifically requesting
punitive damages in his prayer for relief,
Plaintiff alleges in the body of his
Complaint that Defendants knew of the
Plug's defects, knew of the dangerous nature
of the defects, and still represented that the
Plug was safe. ECF No. I at 5. Such
conduct, if proven to be true, would
constitute willful misconduct warranting
punitive damages under O.C.G.A. § 51-125.1.
Whether discovery will reveal facts
sufficient to carry Plaintiffs burden of
proving his entitlement to punitive damages
by clear and convincing evidence is yet to be
seen, see O.C.G.A. § 51-12-5.1(b), but he
has shown enough to satisfy O.C.G.A. § 5112-5.1 (d)( 1 )'s requirement that punitive
damages be specifically prayed. Therefore,
Defendants' motion regarding Plaintiff's
punitive damages request is denied.
V. CONCLUSION
Because the Court finds that Plaintiff has
stated claims for relief under Georgia law
for strict liability design defect, negligent
failure to warn, and negligence, the Court
DENIES Defendants' motion to dismiss.
Further, because the Court finds that
Plaintiff has satisfied O.C.G.A. § 51-125.1 (d)( 1)' s requirement that awards of
punitive damages be specifically prayed, the
Court DENIES Defendants' motion
regarding Plaintiffs prayer for punitive
damages.
This
day of October 2014.
UNITED STATES DISTRICT COU T
SOUTHERN DISTRICT OF GEORGIA
10
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