Berg v. Johnson & Johnson et al

Filing 268

ORDER denying 246 Motion for Judgment on the Pleadings. Signed by U.S. District Judge Karen E. Schreier on 09/12/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEANE BERG,
Plaintiff,
vs.
JOHNSON & JOHNSON;
JOHNSON & JOHNSON
CONSUMER COMPANIES, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CIV. 09-4179-KES

ORDER DENYING DEFENDANTS’
MOTION FOR JUDGMENT ON THE
PLEADINGS

The remaining defendants in this suit, Johnson & Johnson and Johnson
& Johnson Consumer Companies, Inc., move for judgment on the pleadings to
dismiss plaintiff’s civil conspiracy and acting in concert claims. Plaintiff, Deane
Berg, resists the motion. For the following reasons, defendants’ motion is
denied.
DISCUSSION
Defendants’ motion for judgment on the pleadings is brought under
Federal Rule of Civil Procedure 12(c). “Judgment on the pleadings is
appropriate only when there is no dispute as to any material facts and the
moving party is entitled to judgment as a matter of law, the same standard
used to address a motion to dismiss for failure to state a claim under Rule
12(b)(6).” Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)
(internal quotations and citations omitted). To survive a motion for judgment

on the pleadings, “the factual allegations in a complaint, assumed true, must
suffice to state a claim to relief that is plausible on its face.” Ritchie v. St. Louis
Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011) (internal quotations omitted).
Defendants argue Berg’s civil conspiracy claim should be dismissed for
two reasons: (1) it no longer has any legal foundation, and (2) it is a legal
impossibility. Both theories rely on the fact that Luzenac America, Inc. is no
longer a party to this case.
First, defendants argue that because Luzenac is no longer a party to this
action, Berg’s civil conspiracy claim is redundant. Under South Dakota law,
“civil conspiracy is not an independent cause of action, but is sustainable only
after an underlying tort claim has been established.” Selle v. Tozser, 786
N.W.2d 748, 756 (S.D. 2010). Civil conspiracy is “only a theory to establish [a
defendant’s] vicarious liability for the damages caused by the underlying tort.”
Id. If a defendant is found liable for the underlying tort itself, then it is
unnecessary to “consider whether he may have also been vicariously liable for
those damages under a civil conspiracy theory.” Id. Here, because Luzenac is
no longer a defendant in this action and defendants can no longer be held
liable for Luzenac’s torts, defendants argue the civil conspiracy claim against
them is no longer appropriate.
The court agrees with defendants’ interpretation of the law and the
proposition that arises therefrom, which is that a civil conspiracy claim is
redundant when there is only one defendant. But the court disagrees with
2

defendants’ application of the law to the facts here because two defendants still
remain—(1) Johnson & Johnson and (2) Johnson & Johnson Consumer
Companies, Inc. As a result, the issue now is whether Berg’s complaint
sufficiently pleads a conspiracy between Johnson & Johnson and Johnson &
Johnson Consumer Companies, Inc.
Berg’s civil conspiracy allegations in her complaint do not refer to specific
defendants but instead refer to the defendants in the aggregate. For example,
the complaint states that “Defendants individually, jointly, and in conspiracy
with each other, fraudulently, willfully and maliciously withheld, concealed and
suppressed said medical information regarding the increased risk of ovarian
cancer from Plaintiff.” Docket 1 at ¶ 45. Nowhere in the complaint’s “Count
Four – Civil Conspiracy” section is there a reference that only Luzenac and
Johnson & Johnson or Luzenac and Johnson & Johnson Consumer
Companies, Inc. were involved in the alleged conspiracy. The complaint
sufficiently pleads facts which allege that Johnson & Johnson conspired with
Johnson & Johnson Consumer Companies, Inc. Therefore, because the
complaint sufficiently pleads a civil conspiracy between Johnson & Johnson
and Johnson & Johnson Consumer Companies, Inc. and because Johnson &
Johnson and Johnson & Johnson Consumer Companies, Inc. are both still
defendants in this action, Berg’s civil conspiracy claim is not redundant.
Defendants’ second argument—Berg’s civil conspiracy claim is a legal
impossibility—is a more difficult question, but not for the reasons pointed out
3

by defendants. Defendants, incorrectly assuming the complaint only envisioned
a conspiracy between Luzenac and one of the Johnson & Johnson defendants,
argue that because Luzenac has been dismissed, the only remaining party
(whether it is Johnson & Johnson or Johnson & Johnson Consumer
Companies, Inc.) involved in the alleged conspiracy cannot conspire with itself.
By not accounting for the situation in which Johnson & Johnson conspired
with Johnson & Johnson Consumer Companies, Inc., defendants’ argument
misses the mark. Therefore, the issue here is not whether a party can conspire
with itself, but whether a parent corporation can conspire with one of its
subsidiaries.
The parties have not briefed this issue, and the court is unaware of a
South Dakota Supreme Court case, or any other case interpreting South
Dakota law, that has specifically addressed this issue. Without clear guidance
from the South Dakota Supreme Court and in the absence of any briefing by
the parties on what appears to be an issue of first impression, the court will
not decide at this time whether, under South Dakota law, a parent corporation
can conspire with one of its subsidiaries. Therefore, the motion to dismiss
Berg’s civil conspiracy claim is denied, but defendants are free to raise this
issue during trial at the close of plaintiff’s case.
With respect to Berg’s acting in concert claim, defendants argue that her
acting in concert claim is not separate and apart from her civil conspiracy
claim. Under the circumstances here, the court agrees that Berg’s civil
4

conspiracy and acting in concert claims are one and the same. The purpose of
each is to establish joint tortfeasor liability. Therefore, the court does not
intend to give two separate jury instructions—one for civil conspiracy and one
for acting in concert—at the conclusion of trial because doing so would be
superfluous. Accordingly, it is
ORDERED that defendants’ motion for judgment on the pleadings
(Docket 246) is denied without prejudice.
Dated September 12, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

5