Clem et al v. Delta Pharma, Inc.

Filing 29

ORDER denying 15 Motion to Dismiss. Signed by Judge Jon Phipps McCalla on 3/26/2015. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DENVER FLOYD CLEM and wife,
LORETTA CLEM,

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Plaintiffs,
v.
DELTA PHARMA, INC.,
Defendant / Third-Party
Plaintiff,
v.
CARE RITE, PLLC, and JOHN
and/or JANE DOES 1–4,
Third-Party Defendants.

No. 2:14-cv-01220-JPM-dkv
JURY DEMAND

ORDER DENYING MOTION TO DISMISS
Before the court is Third-Party Defendant Care Rite, PLLC’s
Motion to Dismiss, filed January 19, 2015.

(ECF No. 15.)

For

the reasons stated below, the Motion is DENIED.
I.

BACKGROUND
A.

Factual Background

This case concerns an injection of Deltalone – 40, which is
alleged to have been contaminated with methicillin-susceptible
staphylococcus aureus (MSSA).

(Compl., ECF No. 1.)

Plaintiff

Denver Floyd Clem alleges that complications from the injection
resulted in several invasive medical procedures and continuing
damages.

(Id. ¶¶ 17–23.).

Care Rite, PLLC (“Care Rite”)

acknowledged during the Telephonic Scheduling Conference (ECF
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No. 17) that it administered the injection at its clinic in
Ripley, Tennessee.

Delta Pharma, Inc. (“Delta Pharma”) admits

that it synthesized the drug that was injected, but asserts that
it was sterile at the time that it was shipped.
No. 8.)

(Answer, ECF

Delta Pharma alleges that Third-Party Defendants are

wholly liable for the injuries alleged by Plaintiffs, and that
Delta Pharma is entitled to full indemnity for any judgment that
may be rendered in favor of Plaintiffs.

(3d Party Compl., ECF

No. 9.)
B.

Procedural Background

Plaintiffs filed their Complaint on September 4, 2014.
(ECF No. 1.)

Defendant Delta Pharma filed its Answer on

November 25, 2014.

(ECF No. 8.)

Also on November 25, 2014,

Delta Pharma filed its Third-Party Complaint against Care Rite
and John and/or Jane Does 1–4.

(ECF No. 9.)

As a responsive pleading to the Third-Party Complaint, Care
Rite filed the Motion to Dismiss before the Court on January 19,
2015.

(ECF No. 15.)

Delta Pharma filed a response on January

30, 2015.

(ECF No. 21.)

12, 2015.

(ECF No. 25.)

II.

Care Rite filed a reply on February

Legal Standard
Under Rule 12(b)(6), a court can dismiss a complaint for

“failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).

“A pleading that states a claim for
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relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.”

Fed. R.

Civ. P. 8(a)(2).
In assessing a complaint for failure to state a claim,
[a court] must construe the complaint in the light
most favorable to the plaintiff, accept all well-pled
factual allegations as true, and determine whether the
complaint “contain[s] sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.”
Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 790
(6th Cir. 2012) (second alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“This standard is

not akin to a probability requirement, but it asks for more than
a sheer possibility that defendant has acted unlawfully.”
Williams v. Duke Energy Int’l, 681 F.3d 788, 799 (6th Cir. 2012)
(quoting Iqbal, 556 U.S. at 678) (internal quotation marks
omitted).
The Court, however, “need not accept as true legal
conclusions or unwarranted factual inferences, and [c]onclusory
allegations or legal conclusions masquerading as factual
allegations will not suffice.”

In re Travel Agent Comm’n

Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (alteration
in original) (citation omitted) (internal quotation marks
omitted); see also Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d
149, 157 (6th Cir. 2014) (“[A] complaint must contain ‘more than
labels and conclusions, and a formulaic recitation of the
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elements of a cause of action will not do.’”) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007))).

“Issues adverted

to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.

It is not

sufficient for a party to mention a possible argument in [a]
skeletal way, leaving the court to put flesh on its bones.”

El-

Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009) (alteration
in original) (internal quotation marks omitted).
III. Analysis
Care Rite argues that the Third-Party Complaint must be
dismissed due to the absence of a certificate of good faith with
the complaint as required by Tennessee law. 1
11.)

(ECF No. 15 at 7,

The Court disagrees.
Because Tennessee law does not require a certificate of

good faith when a party files a third-party complaint, the Court
finds that Care Rite’s argument fails.

The plain language of

Tenn. Code Ann. § 29-26-122 does not apply to third-party
claims.

Every reference to when a certificate of good faith is

required -- or to when an action must be dismissed -- simply
uses the word “complaint” without mentioning any other form of
pleading.

Tenn. Code Ann. § 29-26-122.

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The Tennessee

Delta Pharma argues that Tenn. Code Ann. § 29-26-122 does not apply to Delta
Pharma because this is not a “health care liability action.” (See ECF No.
21.) Because the Court finds that a certificate of good faith need not be
filed in this case even assuming this case is a health-care liability action,
the Court declines to consider Delta Pharma’s arguments.

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legislature is capable of referencing other forms of pleadings,
including counter claims, cross-claims, and third-party
complaints when it wishes to do so.

See, e.g., § 28-1-114(a)

(“A counterclaim or third party complaint or cross-claim is not
barred by the applicable statute of limitations or any statutory
limitation of time, however characterized, if it was not barred
at the time the claims asserted in the complaint were
interposed.”); § 47-2A-506 (“A counterclaim or third-party
complaint is not barred by the statute of limitations provided
by this section if it was not barred at the time the claims
asserted in the complaint were interposed.”); § 66-11-126
(“[T]he owner or owners shall have the right to make the prime
contractor or remote contractor a defendant by third-party
complaint or cross-claim as is otherwise provided by law.”)
It would be improper to read in a dispositive requirement
to a third-party complaint that is not required by the plain
language of the statute.

As Care Rite acknowledged during the

Telephonic Scheduling Conference, no Tennessee court has ever
applied § 29-26-122 to a third-party complaint.

“Federal courts

should be extremely cautious about adopting substantive
innovation in state law.”

Berrington v. Wal-Mart Stores, Inc.,

696 F.3d 604, 608 (6th Cir. 2012) (internal citations and
quotation marks omitted).

Accordingly, the Court finds that a

certificate of good faith need not be filed in this case.
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IV.

CONCLUSION
For the reasons stated above, Care Rite’s Motion to Dismiss

(ECF No. 15) is DENIED.
IT IS SO ORDERED, this 26th day of March, 2015.

/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

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