Pavao et al v. USPlabs, LLC et al

Filing 118

ORDER GRANTING DEFENDANTS' 31 MOTION FOR JUDGMENT ON THE PLEADINGS AS TO PLAINTIFF MICHAEL SORIANO. Signed by JUDGE LESLIE E. KOBAYASHI on 3/23/2015. USPlabs and GNC's Motion for Judgment on the Pleadings as to Plaintiff M ichael Soriano, filed February 4, 2015, is HEREBY GRANTED. Soriano's loss of consortium claim is HEREBY DISMISSED WITHOUT PREJUDICE. Although this Court has granted Plaintiffs leave to amend Sorianos loss of consortium claim, it ORDERS Plainti ffs not to file their amended complaint until after it rules on all of the motions to dismiss in this case. See supra nn.2-3. This Court will give Plaintiffs a deadline for the filing of their amended complaint after it rules on all of the motions to dismiss. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
USPLABS, LLC, JONATHAN
)
VINCENT DOYLE (an
)
individual), JACOB GEISSLER
(an individual) a/k/a/ JACOBO )
)
GEISSLER, USPLABS OXYELITE,
)
LLC, USPLABS OXYELITE PN,
)
LLC, GNC CORPORATION, S.K.
LABORATORIES, INC., VITA-TECH )
INTERNATIONAL, INC. and DOES )
)
1-500, Inclusive,
)
)
Defendants.
_____________________________ )
KEAHI PAVAO, DEREK KAMIYA as
personal representative of
the ESTATE OF SONNETTE
MARRAS, GARY POWELL on behalf
of and as conservator for
M.P.C.F.S.M., a minor child,
R.P.O.C.S.S.M., a minor
child, M.P.C.I.H.S.M., a
minor child, and M.K.C.S.M.,
a minor child; MICHAEL
SORIANO; and LANCE TANIGUCHI,

CIVIL 14-00367 LEK-KSC

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT
ON THE PLEADINGS AS TO PLAINTIFF MICHAEL SORIANO
Before the Court is Defendants’ USPlabs, LLC
(“USPlabs”) and GNC Corporation’s (“GNC”) Motion for Judgment on
the Pleadings as to Plaintiff Michael Soriano (“Motion”), filed
on February 4, 2015.

[Dkt. no. 31.]

Plaintiff Michael Soriano

(“Soriano”) filed his memorandum in opposition on
February 18, 2015, and USPlabs and GNC filed their reply on

March 4, 2015.

[Dkt. nos. 51, 99.]

The Court finds this matter

suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, the Motion
is HEREBY GRANTED for the reasons set forth below.
BACKGROUND
Plaintiffs Keahi Pavao (“Pavao”); Derek Kamiya
(“Kamiya”), as personal representative of the Estate of
Sonnette Marras (“Marras”); Gary Powell (“Powell”), on behalf of
and as conservator for M.P.C.F.S.M., a minor child,
R.P.O.C.S.S.M., a minor child, M.P.C.I.H.S.M., a minor child, and
M.K.C.S.M., a minor child (collectively, “the Minor Children”);
Soriano; and Lance Taniguchi (“Taniguchi,” and all collectively,
“Plaintiffs”) filed this action on August 15, 2014.

The

Complaint alleges that: OxyElite Pro Super Thermo (“the Product”)
was designed, manufactured, marketed and/or sold - either
directly or indirectly - by USPlabs; Marras purchased the Product
from GNC and took the recommended dosage for approximately one
month; and, as a result of her use of the Product, Marras
suffered acute liver failure and eventually died on October 4,

2

2013.1

[Complaint at ¶¶ 45, 47.]

law wife.

Marras was Soriano’s common

[Id. at ¶ 43.]
The Complaint alleges the following claims: negligence

against USPlabs and Defendants Jonathan Vincent Doyle (“Doyle”),
Jacob Geissler (also known as Jacobo Geissler) (“Geissler”),
USPlabs OxyElite, LLC (“OxyElite”), and USPlabs OxyElite PN, LLC
(“OxyElite PN,” all collectively “the USP Defendants” and
“Count I”);2 negligence against GNC (“Count II”); negligence
against Defendants S.K. Laboratories, Inc. (“S.K.”) and Vita-Tech
International, Inc. (“Vita-Tech,” collectively, “the
Manufacturers” and “Count III”);3 strict products liability manufacturing defect - against the USP Defendants (“Count IV”);

1

Pavao and Taniguchi also allegedly suffered acute liver
failure as a result of their use of the Product. [Complaint at
¶¶ 42, 52.]
2

On February 24, 2015, the USP Defendants filed a motion to
dismiss all claims against Doyle, Geissler, OxyElite, and
OxyElite PN (“USP Defendants Motion”). [Dkt. no. 59.] This
Court will address the issues in the USP Defendants Motion after
ruling on the motion in Davidson, et al. v. USPlabs, LLC, et al.,
CV 14-00364 LEK-KSC, filed 2/23/15 (dkt. no. 61), which the
parties have designated as the representative motion regarding
the USP Defendants. [Dkt. no 105.]
3

S.K. filed its Motion to Dismiss or, in the Alternative,
for Summary Judgment (“S.K. Motion”) on December 30, 2014. [Dkt.
no. 17.] Vitatech Nutritional Sciences, Inc., incorrectly named
as Vita-Tech International, Inc. (“Vitatech”) filed its Motion to
Dismiss for Lack of Personal Jurisdiction (“Vitatech Motion”) on
February 4, 2015. [Dkt. no. 32.] The S.K. Motion is set for
hearing on April 13, 2015, and the Vitatech Motion will be
decided as a non-hearing motion after the parties’ memoranda are
filed in May. [Dkt. nos. 39, 40.]
3

strict products liability - manufacturing defect - against GNC
(“Count V”); strict products liability - manufacturing defect against the Manufacturers (“Count VI”); strict products liability
- design defect - against the USP Defendants (“Count VII”);
strict products liability - design defect - against GNC (“Count
VIII”); strict products liability - design defect - against the
Manufacturers (“Count IX”); strict products liability - failure
to warn - against the USP Defendants (“Count X”); strict products
liability - failure to warn - against GNC (“Count XI”); strict
products liability - failure to warn - against the Manufacturers
(“Count XII”); breach of implied warranty against the USP
Defendants (“Count XIII”); breach of implied warranty against GNC
(“Count XIV”); and breach of implied warranty against the
Manufacturers (“Count XV”).

Although not identified as separate

counts, Plaintiffs also include: punitive damages allegations
against the USP Defendants and GNC; wrongful death allegations by
Powell on behalf of and as conservator for the Minor Children and
by Soriano; and survival allegations by Kamiya, as personal
representative of Marras’s estate.

The wrongful death

allegations include, in pertinent part, the allegation that
Soriano “suffered the loss of consortium, including the loss of
[Marras’s] love, service, society, comfort, affection, moral
support, companionship” and “incurred the cost of burial and
funeral expenses and will lose any future financial support,

4

gifts, benefits and value from household services that [Marras]
would have provided.”

[Complaint at ¶¶ 229-30.]

The Complaint seeks the following relief: Plaintiffs’
past and future medical care expenses; past and future lost
earnings and/or profits; other economic losses; damages for
physical pain and discomfort; damages for fright, nervousness,
anxiety, worry, and apprehension; pre- and post-judgment
interest; reasonable costs; punitive and treble damages against
USPlabs and GNC; any other appropriate relief; and, as to Kamiya,
Powell, and Soriano, relief for their respective survival and
wrongful death actions.
In the instant Motion, USPlabs and GNC seek judgment on
the pleadings as to Soriano’s loss of consortium claim because:
1) there is no common law claim under Hawai`i law for loss of
consortium by a common law spouse or other unmarried partner; and
2) to the extent that Soriano is attempting to bring his claim
pursuant to Haw. Rev. Stat. § 663-3, he has failed to plead
sufficient factual allegations to support the claim.
DISCUSSION
I.

Applicable Standard
USPlabs and GNC bring the instant Motion pursuant to

Fed. R. Civ. P. 12(c), which states: “After the pleadings are
closed - but early enough not to delay trial - a party may move
for judgment on the pleadings.”

Soriano argues that the Motion
5

is premature because not all of the defendants in this case have
filed their answers to the Complaint, and therefore the Court
should analyze the Motion under Fed. R. Civ. P. 12(b)(6) instead.
“Analysis under Rule 12(c) is substantially identical to analysis
under Rule 12(b)(6) because, under both rules, a court must
determine whether the facts alleged in the complaint, taken as
true, entitle the plaintiff to a legal remedy.”

Chavez v. United

States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation and
internal quotation marks omitted).

USPlabs and GNC argue that

this Court has the discretion to allow a Rule 12(c) motion, even
before all of the defendants have filed answers, but they
acknowledge that there is no prejudice to them if this Court
construes their Motion as a Rule 12(b)(6) motion.

[Reply at 3.]

Even assuming, arguendo, that it may consider a Rule 12(c) motion
before the pleadings have closed, this Court, in the exercise of
its discretion, construes the Motion as a Rule 12(b)(6) motion.
II.

Common Law Loss of Consortium Claim
USPlabs and GNC argues that, because the Complaint does

not cite Haw. Rev. Stat. § 663-3,4 Soriano is asserting a common

4

Haw. Rev. Stat. § 663-3 states, in pertinent part:
(a) When the death of a person is caused by the
wrongful act, neglect, or default of any person,
the deceased’s legal representative, or any of the
persons enumerated in subsection (b), may maintain
an action against the person causing the death or
against the person responsible for the death. The
(continued...)
6

law loss of consortium claim.

They argue that Soriano’s claim

fails because Hawai`i law does not recognize a loss of consortium
claim by a common law spouse or other unmarried partner.

See,

e.g., Thompson v. Saint Louis Sch., No. 28856, 2011 WL 661818, at
*8 (Hawai`i Ct. App. Feb. 24, 2011) (“Loss of consortium claims
are derivative, as they are based on the underlying claim of a
spouse or child who has suffered injury.” (emphasis added) (some
citations omitted) (citing Brown v. KFC Nat’l Mgmt. Co., 82
Hawai`i 226, 241, 921 P.2d 146, 161 (1996))).
Although the Complaint does not cite § 663-3, which is
titled “Death by wrongful act,” the Complaint asserts Soriano’s

4

(...continued)
action shall be maintained on behalf of the
persons enumerated in subsection (b), except that
the legal representative may recover on behalf of
the estate the reasonable expenses of the
deceased’s last illness and burial.
(b) In any action under this section, such
damages may be given as under the circumstances
shall be deemed fair and just compensation, with
reference to the pecuniary injury and loss of love
and affection, including:
(1) Loss of society, companionship, comfort,
consortium, or protection;
. . . .
by the surviving spouse, reciprocal beneficiary,
children, father, mother, and by any person wholly
or partly dependent upon the deceased
person. . . .

7

loss of consortium claim in a section titled “Wrongful Death.”
This Court therefore does not construe Soriano’s loss of
consortium claim as arising under Hawai`i common law; it
construes his claim as a claim pursuant to § 663-3.
III. Haw. Rev. Stat. 663-3 Claim
This Court assumes the factual allegations of the
Complaint to be true for purposes of the instant Motion.

See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“for the purposes of
a motion to dismiss we must take all of the factual allegations
in the complaint as true” (citing Bell Atl. Corp. v. Twombly, 550
U.S. 554, 555, 127 S. Ct. 1955 (2007)).

Based on the allegations

in the Complaint, Soriano is not Marras’s surviving spouse,
reciprocal beneficiary, child, father, or mother.

Thus, he can

only bring a wrongful death claim under § 663-3 if he was “wholly
or partly dependent upon” her.

The Hawai`i Supreme Court has

stated:
Previously, this court defined “dependents” as
used in this State’s wrongful death act in Young
v. Hon. C. & D. Co., 34 Haw. 426 (1938). The
Young court stated that:
[t]he term “dependent” has been variously
construed. But as employed in death acts it
connotes the existence of necessitous
want. . . .
Dependency may result from different
causes. It may result from the lack of
physical necessities such as food, shelter
and clothing. It may result from moral and
social necessities such as education.
Physical, moral and social necessities are
8

not confined to the subjects mentioned.
Others are readily conceivable.
Id., 34 Haw. at 442 (citations omitted). Thus,
under § 663–3 Appellants are the dependents of
[the decedent] if they wholly or partly derived
physical, moral, and/or social necessities from
him.
Lealaimatafao v. Woodward-Clyde Consultants, 75 Haw. 544, 552,
867 P.2d 220, 224 (1994) (some alterations in Lealaimatafao)
(footnote omitted).5
In the instant case, the Complaint does not allege
sufficient facts that, if proven, would support a finding that
Soriano “wholly or partly derived physical, moral, and/or social
necessities” from Marras.

Thus, this Court concludes that

Soriano has failed to plead a plausible § 663-3 claim because,
based on the factual allegations in the Complaint, he is not a
person who is eligible to bring a claim under that statute.

See

Iqbal, 556 U.S. at 678 (“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.’” (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955)).
This Court, however, finds that it is arguably possible
for Plaintiffs to cure this defect in Soriano’s claim by
amendment.

See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th

5

“At the time Young was decided, this State’s wrongful
death act was codified as Section 4052, Revised Laws 1935.”
Lealaimatafao, 75 Haw. 552 n.5, 867 P.2d at 224 n.5.
9

Cir. 2009) (“Dismissal without leave to amend is improper unless
it is clear that the complaint could not be saved by any
amendment.” (citation and quotation marks omitted)).

USPlabs and

GNC’s Motion is GRANTED insofar as Soriano’s loss of consortium
claim is DISMISSED WITHOUT PREJUDICE.
CONCLUSION
On the basis of the foregoing, USPlabs and GNC’s Motion
for Judgment on the Pleadings as to Plaintiff Michael Soriano,
filed February 4, 2015, is HEREBY GRANTED.

Soriano’s loss of

consortium claim is HEREBY DISMISSED WITHOUT PREJUDICE.
Although this Court has granted Plaintiffs leave to
amend Soriano’s loss of consortium claim, it ORDERS Plaintiffs
not to file their amended complaint until after it rules on all
of the motions to dismiss in this case.

See supra nn.2-3.

This

Court will give Plaintiffs a deadline for the filing of their
amended complaint after it rules on all of the motions to
dismiss.
IT IS SO ORDERED.

10

DATED AT HONOLULU, HAWAII, March 23, 2015.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

KEAHI PAVAO, ET AL. VS. USPLABS, LLC, ET AL; CIVIL 14-00367 LEKKSC; ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS AS TO PLAINTIFF MICHAEL SORIANO

11