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Ko v. Mutual Pharmaceutical Company, Inc.

United States District Court, Ninth Circuit

July 1, 2013

JOSIE C. KO, Plaintiff,
v.
MUTUAL PHARMACEUTICAL COMPANY, INC., Defendant.

ORDER GRANTING DEFENEDANT MUTUAL PHARMACEUTICAL'S MOTION TO DISMISS [Re Docket Nos. 8 and 21]

RONALD M. WHYTE, District Judge.

Plaintiff Josie C. Ko brings state-law products liability claims against defendant Mutual Pharmaceutical Company, alleging injuries caused by defendant's product sulindac, a generic anti-inflammatory medication. Mutual moves to dismiss for failure to state a claim, or in the alternative, on the basis that Ko's claims are preempted. Mutual also moves to strike Ko's response to the motion to dismiss. As explained below, the court GRANTS Mutual's motion to dismiss.

I. BACKGROUND

On January 17, 2013, plaintiff Josie C. Ko, proceeding pro se, filed a form complaint in the Santa Clara County Superior Court, alleging "products liability" for injuries suffered following her prescribed use of sulindac, a generic anti-inflammatory medication manufactured by defendant Mutual Pharmaceutical Company. Compl. 1, Dkt. No. 1, Ex. 1. On the form complaint, Ko stated that she had suffered "internal heart organ failure - myocarditis - due to prescribed sulindac medication." Id. at 2. Ko did not attach any causes of action to the form complaint, nor did she give any other description of her injuries.

On February 27, 2013, Mutual removed the case to federal court on the basis of diversity jurisdiction.[1] Notice of Removal ¶¶ 7-9, Dkt. No. 1. On March 6, 2013, Mutual filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. Dismiss, Dkt. No. 8. Subsequently, on April 19, Ko filed a response to the motion to dismiss signed by her husband, Antonio C. Ko, that contains an "Attachment to Complaint and Demand for Jury Trial, " and a "Declaration in Support of Opposition to Motion, " as well as several other attachments and exhibits that elaborate on the original complaint. Pl.'s Resp., Dkt. No. 20. On April 26, 2013, Mutual filed a motion to strike this response. Mot. Strike, Dkt. 21.

II. ANALYSIS

Mutual moves to strike Ko's opposition and dismiss the entire complaint. However, the court first notes that "the allegations of a pro se litigant's complaint are to be held to less stringent standards than formal pleadings drafted by lawyers.'" Castro v. U.S., 540 U.S. 375, 386 (2003) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). Furthermore, " pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

A. Motion to Strike

Mutual argues that Ko's entire response to the motion to dismiss violates Rule 11(a) of the Federal Rules of Civil Procedure, because it was signed and submitted by Ko's husband, who is neither a party to the action nor an attorney authorized to represent Ko. Mutual also argues that Ko's "Attachment to Complaint and Demand for Jury Trial" contained in the response to the motion to dismiss is an untimely amendment to the original complaint, in violation of Federal Rule of Civil Procedure 15(a).

Rule 11(a) states that "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name - or by a party personally if the party is unrepresented." Fed.R.Civ.P. 11(a). Furthermore, "[t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or the party's attention." Id. See also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1333 (3d ed. 2004) ("[T]he Rule 11 signature requirement is not satisfied when a non-lawyer signs a paper on behalf of an unrepresented party"); Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ("a non-lawyer has no authority to appear as an attorney for others than himself.'") (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987)). As Ko's husband is neither a party nor an attorney authorized to represent her, his signature does not satisfy the signature requirement of Rule 11(a). While ordinarily the court would give Ko an opportunity to correct this error, other defects, addressed below, obviate the need to correct the signature.

Mutual also argues that the "Attachment to Complaint" contained in the response to the motion to dismiss is untimely. The "Attachment to Complaint" contains some of the information that ought to have been included in the original complaint, namely, Ko's causes of action and a slightly more detailed account of the injuries she has suffered. However, Ko filed this document outside the 21-day period in which Ko could have amended her complaint as a matter of course under Rule 15(a)(1). Ko also could have asked the court for leave to amend, or sought Mutual's written permission to amend, pursuant to Rule 15(a)(2), but did not do so. Again, the court might ordinarily allow Ko to correct this error, but even if the court considered the attachment part of the complaint, the complaint would still fail on the merits as explained in the next section.

B. Motion to Dismiss

Mutual asserts two main arguments in support of its motion to dismiss. First, Ko's complaint fails to state a claim showing that she is entitled to relief. Second, any claim Ko might present is preempted by federal law under the U.S. Supreme ...


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