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Frederick B. Nimtz v. Guidant LLC's Daniel Cepin

March 3, 2011

FREDERICK B. NIMTZ,
PLAINTIFF,
v.
GUIDANT LLC'S DANIEL CEPIN, M.D., ET AL DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING WITHOUT PREJUDICE DEFENDANT MOTION TO DISMISS; DENYING MOTION TO ., STRIKE FAILURE TO WARN [doc.#18]; GRANTING LEAVE TO

AMEND THE COMPLAINT

Defendant Guidant LLC ("Guidant") moves to dismiss pro se plaintiff's complaint or alternatively to strike portions of the complaint. Plaintiff requested and was granted several extensions of time in which to oppose defendant's motion. On February 28, 2011, plaintiff filed his opposition to defendant's motion.*fn1

Background

Plaintiff Frederick Nimtz had surgery in 2006, to implant an Insignia I Ultra, Model 1290 pacemaker that was manufactured by Guidant. He alleges that he suffered injury as a result of the implantation of this device. This action against Guidant is based on strict liability, i.e., the pacemaker was defective and unreasonably dangerous in design and manufacture and did not contain adequate instructions as to its use, limitations and/or adequate warnings. (Compl., ¶¶ 17,

18.) Plaintiff alleges a claim of medical malpractice against Daniel Cepin, M.D., who has filed an answer to the complaint. The medical malpractice claim is not addressed in this Order.

Legal Standard for a Motion to Dismiss

A plaintiff must "plead a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). This statement must be sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Rule 12(b)(6) provides that a complaint may be dismissed for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6). A complaint may be dismissed as a matter of law if it lacks a cognizable legal theory or states insufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

The factual allegations of a complaint must be "enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). A plaintiff must plead more than conclusory allegations to show "plausible liability" and avoid dismissal.

In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond result in the documents being stricken from the record.

Further, plaintiff's opposition is presented in all upper case letters which reduces the legibility of his document. All further submissions by plaintiff shall be presented in appropriate upper and lower case letters. the complaint for additional facts, e.g., facts presented in plaintiff's memorandum in opposition to a defendant's motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also OORE'S FEDERAL PRACTICE, § 12.34[2] (Matthew Bender 3d ed.) ("The court may not . . . take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a).").

Discussion

1. Inadequate Pleading

In the complaint, plaintiff states that the pacemaker was defective and unreasonably dangerous but fails to offer any facts suggesting what the defective condition was or how the product was unreasonably dangerous. Although courts generally treat pro se pleadings under a less stringent standard than pleadings drafted by attorneys, Haines v. Kerner, 404 U.S. 519, 520 (1972), courts should not assume that a plaintiff can prove facts that he has not alleged. Assoc. Gen. Contractors of Cal., Inc. V. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Here, plaintiff's bald assertion that the pacemaker was defective is not sufficient to state a cause of action. Papasan v. Allain, 478 U.S. 265, 286 (1986). Paragraphs 17, ...


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