Jones v. Bayer Healthcare Pharmaceuticals, Inc.

Filing 15

ORDER granting 10 Motion to Dismiss for Failure to State a Claim. Bayers motion to DISMISS is GRANTED. The complaint is DISMISSED in its entirety WITH PREJUDICE. The Court DIRECTS the Clerk of the Court to enter JUDGMENT reflecting the same. Signed by Judge David R. Herndon on 5/5/2015. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TIMIKA L. JONES,
Plaintiff,
vs.

No.

3:15-cv-65-DRH-DGW

BAYER HEALTHCARE
PHARMACEUTICALS INC.,
Defendant.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court on Defendant Bayer HealthCare
Pharmaceuticals Inc.’s (“Bayer”) motion to dismiss plaintiff’s amended complaint
for failure to state a claim upon which relief can be granted (Doc. 10). Bayer
contends the plaintiff’s claims are time-barred pursuant to Illinois’ two-year statute
of limitations for personal injury actions. The plaintiff, who is proceeding pro se,
filed a response (Doc. 13). For the following reasons, Bayer’s motion is GRANTED.
In the instant case, it is evident that plaintiff’s claims must be dismissed on
statute of limitations grounds. Although “a statute of limitations defense is not
normally part of a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), when the allegations of the complaint reveal that relief is barred by the
applicable statute of limitations, the complaint is subject to dismissal for failure
to state a claim.” Logan v. Wilkins, 644 F.3d 577, 582–83 (7th Cir. 2011). A
plaintiff can effectively “plead[ ] himself out of court by alleging facts sufficient to
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establish the complaint's tardiness.” Cancer Foundation, Inc. v. Cerberus Capital
Mgmt., LP, 559 F.3d 671, 674–75 (7th Cir. 2009). Where, as here, the relevant
dates of the events giving rise to the claims are clearly set out in the allegations in
the complaint, dismissal based on the statute of limitations is appropriate. Brooks
v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (“We find it appropriate here to
consider the statute of limitations because the relevant dates are set forth
unambiguously in the complaint.”).
Plaintiff, who is an Illinois resident, alleges that her Mirena was placed on
January 10, 2010 (Doc. 8). Plaintiff claims that on April 24, 2010, she “went into
the emergency room” and told the doctors that “the Mirena ha[d] fallen out” and she
could not “stop bleeding.” (Doc. 8). Plaintiff alleges that she had “large bloodclots
falling out of” her (Doc. 8). Plaintiff claims that she had “an emergency
hysterectomy” and “needed a blood transfusion.” (Doc. 8). Plaintiff further alleges
that she had gastroesophageal reflux disease and also had an allergic reaction.
(Doc. 8).
In the instant case, Illinois’ two-year statute of limitations for personal injury
claims is applicable. 1 The Complaint asserts that plaintiff presented to the
emergency room on April 24, 2010 and told the doctors that her Mirena had

1

A district court sitting in diversity must apply the choice of law principles from the forum state to
determine which state's law governs. West Bend Mut. Ins. Co. v. Arbor Homes LLC, 703 F.3d 1092,
1095 (7th Cir. 2013). The Court must therefore apply Illinois choice of law rules to determine the
governing statute of limitations. In Illinois, statutes of limitation are procedural, and thus the Illinois
statute of limitations applies to all claims unless the Illinois borrowing statute is triggered. See
Newell Co. v. Petersen, 325 Ill.App.3d 661, 668–69, 758 N.E.2d 903, 908 (2001). The statute of
limitations in Illinois for personal injury claims is two years. 735 ILL. COMP. STAT. 5/13-202; see
also 735 ILL. COMP. STAT. 5/13-213(d).

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expelled, which caused her to start bleeding (Doc. 8). Plaintiff admits to knowing
about these alleged injuries by April 24, 2010, when she presented to the
emergency room (Doc. 8). Thus, Plaintiff knew about the alleged injury and its
alleged cause before December 13, 2011 – two years before Plaintiff filed suit on
December 13, 2013.
Accordingly, allegations of the complaint reveal that relief is barred by the
applicable statute of limitations. The Court has no choice but to dismiss the
plaintiff’s complaint in its entirety with prejudice. The Court, therefore, ORDERS as
follows:
Bayer’s motion to DISMISS is GRANTED. The complaint is DISMISSED in
its entirety WITH PREJUDICE. The Court DIRECTS the Clerk of the Court to enter
JUDGMENT reflecting the same.
IT IS SO ORDERED.
Signed this 4th day of May, 2015.

Digitally signed by
David R. Herndon
Date: 2015.05.04
15:55:20 -05'00'
United States District Court

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