Wal-Mart Stores, Inc. v. PDX, Inc, et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiffs Amended Complaint for Failure to State a Claim upon Which Relief Can Be Granted (ECF No. 19 ) is DENIED. Signed by District Judge Ronnie L. White on April 3, 2015. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
WAL-MART STORES, INC.,
Case No. 4:14CV1805 RLW
PDX INC., et al. ,
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion to Dismiss Plaintiffs Amended
Complaint for Failure to State a Claim upon Which Relief Can Be Granted (ECF No. 19). This
matter is fully briefed and ready for disposition.
Wal-Mart sold Jean Pendino prescription drug Tegretol, a known teratogen, prior to her
pregnancy with Paul Pendino, Jr. , who was born with spina bifida. (Amended Complaint, ECF
No. 18 at 6-10).
Wal-Mart was named as a defendant in a case filed by Paul and Jean Pendino
(collectively, "the Pendinos"), as next friend to their minor son, Paul Pendino, Jr. , in the Circuit
Court for the City of St. Louis, Missouri. (Amended Complaint, 'i['i[8, 11 ). The Pendinos alleged
that Wal-Mart was negligent in failing to warn Jean Pendino about the risks of using Tegretol prior
to her pregnancy. (Amended Complaint, 'i[12). The Pendinos also named PDX, Inc. ("PDX")
and Landmark Data, Inc. n/k/a National Health Information Network, Inc. ("NHIN"), both of
which licensed various copyrighted databases of pharmaceutical information and periodical
Because this matter is before the Court on a motion to dismiss, the Court assumes all facts
alleged in the Amended Complaint are true. See Florida State Bd. ofAdmin. v. Green Tree Fin.
Corp., 270 F.3d 645, 660 (8th Cir. 2001)("under Fed.R.Civ.P. 12(b)(6), the plaintiff is entitled to
all reasonable inferences that may be drawn from the allegations of the complaint").
updates thereto. (Amended Complaint, ~~2-3) . On or around May 25, 2004, the Pendinos and
Wal-Mart, for valid consideration, entered into a Full and Final Release ("Release"), releasing
Medi-Span, and its successors and assigns. (Amended Complaint,
In 2008, the Pendinos
and Wal-Mart, for valid consideration, entered into an Addendum to Full and Final Release
("Addendum"). (Amended Complaint, ~14). The Circuit Court of the Twenty-Second Circuit,
State of Missouri, found in its June 25, 2014 Findings of Fact, Conclusions of Law, Order and
Judgment, in Wal-Mart Stores, Inc. v. Pendino, et al. , No. 1122-CC8325, that the Addendum to the
Release was valid and enforceable, supported by consideration, and release PDX, Landmark, and
their respective successors and assigns. (Amended Complaint, ~15). The Addendum expressly
incorporates the amount paid in the Release to relieve PDX, Landmark, and their respective
successors and assigns, from liability to the Pendinos, as well as the consideration to enter into the
Addendum, and such other good and valuable consideration. (Amended Complaint, ~16). The
consideration for the Release of the Pendinos' claims against Wal-Mart Stores, PDX and NHIN is
an amount subject to a confidentiality agreement, was in excess of $25 ,000, and was paid by
Wal-Mart in accordance with the terms of the Release. (Amended Complaint, ~19).
This case was originally filed in the Circuit Court of the City of St. Louis, State of Missouri
on or about June 15, 2012. A copy of the Petition was served on Defendants PDX and NHIN on
September 25, 2014. Defendants removed this action to this Court on or about October 24, 2014.
On December 17, 2014, Wal-Mart filed its Amended Complaint, alleging claims for contribution
against Defendants. Wal-Mart alleges that the settlement amount paid solely by Wal-Mart was
inequitable and that any liability to the Pendinos should be apportioned between Wal-Mart and
Defendants based upon their relative fault under the common law and Mo.Rev.Stat. §537.060.
(Amended Complaint, ~~53-54 , 75-76).
STANDARD OF REVIEW
In ruling on a motion to dismiss, the Court must view the allegations in the Complaint
liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F .3d 801, 806
(8th Cir. 2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)).
Additionally, the Court "must accept the allegations contained in the complaint as true and draw
all reasonable inferences in favor of the nonmoving party." Coons v. Mineta , 410 F.3d 1036,
1039 (8th Cir. 2005) (citation omitted). To survive a motion to dismiss, a complaint must contain
"enough facts to state a claim to relief that is plausible on its face. " Bell At!. Corp. v. Twombly,
550 U.S. 544, 570 (2007) (abrogating the "no set of facts" standard for Fed. R. Civ. P. 12(b)(6)
found in Conley v. Gibson, 355 U.S. 41 , 45-46 (1957)). While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to
provide the grounds of his entitlement 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;
Huang v. Gateway Hotel Holdings, 520 F. Supp. 2d 1137, 1140 (E.D. Mo. 2007).
Defendants contend that Wal-Mart' s action must be dismissed for "lack of ripeness"
because the language of the Addendum demonstrates that "any payment for the release of these
Defendants is contingent on a future recovery" by Wal-Mart.
(ECF No. 20 at 4-5).
In consideration of releasing any claim we have or may have against PDX, Inc.
and/or Landmark Data, Inc. and their agents, employers, officers, successors,
assigns, divisions, and subsidiaries, Wal-Mart agrees to pay Jean Pendino and Paul
Pendino, as Next Friend of Minor Paul Pendino, Jr. 10% of any amounts received
... from any contribution action, or action for indemnity.
(ECF No. 20-1 ).
Defendants argue that their release is contingent on a "future event and
therefore, nothing has yet to be paid on behalf of these Defendants." (ECF No. 22 at 2 (citing
ECF No. 16-2 at 9-10).
In response, Wal-Mart maintains that Defendants' theory is contradicted by the allegations
in the Amended Complaint, and by the June 25, 2014 Findings of Fact, Conclusions of Law, Order
and Judgment entered by the Circuit Court of the Twenty-Second Circuit, State of Missouri.
(ECF No. 21 at 1). Therein, the Circuit Court of the Twenty-Second Circuit found that the
Addendum was valid and enforceable, supported by consideration, and released PDX, Landmark,
and their respective successors and assigns.
Wal-Mart maintains that the Amended
Complaint clearly alleges that Defendants were released and that a debt was paid on behalf of
Defendants by Wal-Mart, and that the settlement was reasonable. (ECF No. 21 at 3). Wal-Mart
notes that there is nothing contingent in the Release and nothing contingent in the amount paid by
Wal-Mart to release Defendants.
"When two or more persons become liable in tort to the same person for the same harm,
there is a right of contribution among them". Safeway Stores, Inc. v. Raytown, 633 S.W.2d 727,
730 (Mo. bane 1982) (quoting Restatement (Second) of Torts § 896A(l) (1965)). To maintain an
action for contribution, both the party seeking contribution and the "defendant against whom
contribution is sought must be ... tortfeasor[ s], originally liable to the plaintiff-injured party." Id.
"If the party seeking contribution entered into settlement with the original plaintiff, the party must
hurdle additional obstacles before being entitled to contribution. Contribution is available to the
settling party only (1) if the liability of the person against whom contribution is sought has been
extinguished; and (2) to the extent that the amount paid in settlement was reasonable." Gramex
Corp. v. Green Supply, Inc., 89 S.W.3d 432, 443 (Mo. 2002)(intemal citations and quotations
The Court holds that Wal-Mart's Amended Complaint adequately states claims for
contribution against Defendants. Wal-Mart has alleged that any liability that PDX and NHIN had
as to the Pendinos was extinguished by the Release and the Addendum and for valid consideration.
(Amended Complaint, i/51 , 73). Wal-Mart alleges that it paid the settlement amount, but that the
amount paid by Wal-Mart was inequitable and should be reapportioned between Defendants based
upon their relative fault under the common law and Mo.Rev.Stat. §537.060.
Complaint, i!i/53-54, 75-76). These allegations demonstrate that the debt of the Defendants has
been extinguished by, and that consideration was paid for, the execution of the Release and
Addendum. The Court holds that these allegations adequately state a claim for contribution based
upon Wal-Mart' s consideration paid to the Pendinos to release the claims against Defendants
based upon the same harm to the Pendinos. See Gramex Corp., 89 S.W.3d at 443.
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiffs Amended
Complaint for Failure to State a Claim upon Which Relief Can Be Granted (ECF No. 19) is
Dated this 3rd day of April, 2015.
UNITED STATES DISTRICT JUDGE
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