Dickerson v. DIMA S.L. et al

Filing 38

ORDER granting in part and denying in part 33 Motion to Dismiss for Failure to State a Claim; that is, granted as to plf's fraudulent misrepresentation and negligent misrepresentation claims and denied in all other res pects; granting parties' 36 Joint Motion to Stay All Proceedings Pending Transfer Decision by the Judicial Panel on Multidistrict Litigation. This matter is stayed pending the decision of the Judicial panel on Multidistrict Litigation. Signed by Magistrate Judge David S. Cayer on 11/20/2013. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:12-CV-00192-DSC
TAMATHA DICKERSON,
Plaintiff,
v.
DIMA S.L., et. al.,
Defendants.

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ORDER

THIS MATTER is before the Court on Defendants’ “Motion to Dismiss” (document
#33), the parties’ “Joint Motion to Stay All Proceedings Pending Transfer Decision by the
Judicial Panel on Multidistrict Litigation” (document #36), and the parties’ associated briefs and
exhibits. See documents ## 33-1 and 34-37.
Defendants contend that all of Plaintiff’s claims are barred by the three-year statute of
limitations in N.C. Gen. Stat. §1-52(16). Plaintiff does not allege that she suffered injury on a
specific date, but rather sometime after the device was implanted.

Since the Amended

Complaint does not specify the date on which Plaintiff suffered injury, the statute cannot be
found to have run based upon any time alleged in the Amended Complaint. I R Const. Products
Co., Inc. v. D.R. Allen & Son, Inc., 737 F. Supp. 895, 896 (W.D.N.C. 1990). For these and the
other reasons stated in Plaintiff’s brief, Defendant’s Motion to Dismiss based on the statute of
limitations is denied.

Defendant also moves to dismiss Plaintiff’s fraudulent misrepresentation and negligent
misrepresentation claims.

Plaintiff has not addressed those claims in her brief. See document

#34. Accordingly, Defendant’s Motion to Dismiss is granted as to those claims.
NOW THEREFORE IT IS ORDERED:
1.

Defendant’s “Motion to Dismiss” (document #33) is GRANTED IN PART and

DENIED IN PART, that is, GRANTED as to Plaintiff’s fraudulent misrepresentation and
negligent misrepresentation claims and DENIED in all other respects.
2.

The parties’ “Joint Motion to Stay All Proceedings Pending Transfer Decision by

the Judicial Panel on Multidistrict Litigation” (document #36) is GRANTED and this matter is
STAYED pending the decision of the Judicial Panel on Multidistrict Litigation.
3.

The Clerk is directed to send copies of this Order to counsel for the parties.

SO ORDERED.

Signed: November 20, 2013