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Knoles v. Teva Pharmaceuticals USA, Inc.

United States District Court, N.D. California, San Jose Division

October 17, 2019

MARLESSA KNOLES, Plaintiff,
v.
TEVA PHARMACEUTICALS USA, INC.; TEVA BRANDED PHARMACEUTICALS PRODUCTS R&D, INC.; FEI WOMEN'S HEALTH LLC; ORTHO-MCNEIL PHARMACEUTICAL, LLC; and DURAMED PHARMACEUTICALS, Defendants.

          ORDER GRANTING TEVA DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION; TERMINATING AS MOOT TEVA DEFENDANTS' MOTION TO STRIKE THE SECOND AMENDED COMPLAINT; AND DIRECTING PLAINTIFF TO SHOW CAUSE WHY THE SECOND AMENDED COMPLAINT SHOULD NOT BE DISMISSED AS TO REMAINING DEFENDANTS [RE: ECF 72, 73]

          BETH LAB SON FREEMAN UNITED STATES DISTRICT JUDGE

         Plaintiff Marlessa Knoles sues a number of entities for injuries she suffered due to implantation and removal of a Paragard Intrauterine Device (“IUD”). Defendants Teva Pharmaceuticals USA, Inc. (“Teva USA”) and Teva Branded Pharmaceuticals Products R&D, Inc. (“Teva Branded”) have filed a motion to dismiss the operative second amended complaint (“SAC”) for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), and a motion to strike the SAC for failure to comply with a Court order.

         Following completion of briefing on the motions, the Court vacated the scheduled hearing dates of October 24, 2019 and October 31, 2019 and advised the parties that the motions would be submitted for decision without oral argument. See Order Vacating Motion Hearings, ECF 80. For the reasons discussed below, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND; the motion to strike is TERMINATED AS MOOT; and the Court sua sponte orders Plaintiff to SHOW CAUSE why the SAC should not be dismissed as to the remaining Defendants.

         I. BACKGROUND

         Plaintiff filed this action in November 2017, asserting state law products liability and negligence claims against Teva USA and Teva Branded based on allegations that they designed, manufactured, marketed, and/or sold the Paragard IUD. See Compl., ECF 2. The Teva Defendants moved for judgment on the pleadings, arguing that they had no involvement with the Paragard IUD and that they are not subject personal jurisdiction in California. See Motion for JOP, ECF 52. The Court granted the motion for judgment on the pleadings with leave to amend. See Order Granting Motion for JOP, ECF 62. Leave to amend was expressly limited to the claims asserted against the Teva Defendants, and Plaintiff was directed not to add new claims or parties without prior leave of the Court. See id.

         Prior to amending her claims against the Teva Defendants, Plaintiff filed a motion to substitute a true name, “Paragard, ” for a fictitiously named defendant. See Motion to Substitute, ECF 66. With the motion, Plaintiff submitted a proposed second amended complaint asserting claims against new party “Paragard IUD.” See Proposed Second Amended Complaint, ECF 66-1. The Court granted the motion to substitute, noting the discrepancy between Plaintiff's identification of the new party as “Paragard” in the motion but “Paragard IUD” in the proposed second amended complaint, and cautioning Plaintiff to ensure that the correct name of the entity was used in the amended pleading. See Order Granting Motion to Substitute at 4, ECF 70. The Court ordered that “[t]he amended complaint shall add the appropriate Paragard entity as a defendant and shall cure the deficiencies identified in the Court's prior Order Granting Motion for JOP, ” and that “Plaintiff may not add any other new parties or claims without express leave of the Court.” Id.

         On May 17, 2019, Plaintiff filed the operative second amended complaint (“SAC”). See SAC, ECF 71. The SAC Plaintiff filed is substantially different from the proposed second amended she submitted with her motion to substitute. Compare ECF 66-1 with ECF 71. Notably, the SAC does not add “the appropriate Paragard entity” as authorized by the Court, but instead it adds three different defendant entities: FEI Women's Health LLC, Ortho-McNeil Pharmaceutical, LLC, and Duramed Pharmaceuticals. See SAC, ECF 71.

         The SAC alleges that Plaintiff had a Paragard IUD inserted on December 7, 2004; an attempted retrieval of the IUD in May 2015 was only partially successful, as the IUD broke and some of the pieces could not be retrieved; and a second attempted retrieval in June 2015 was unsuccessful. See SAC ¶¶ 19-22. Plaintiff was advised that a hysterectomy would be required to remove the remaining IUD piece. See SAC ¶ 22. Plaintiff did not have a hysterectomy, and she continues to suffer discomfort from the piece of IUD remaining inside her. See SAC ¶ 23. The SAC asserts state law claims for: (1) strict products liability; (2) failure to warn; (3) defective design; and (4) negligence.

         On May 29, 2019, the Teva Defendants moved to strike the SAC on the basis that it was filed in violation of the Court's order granting leave to amend to add a single new “Paragard” defendant. See Motion to Strike, ECF 72. On May 31, 2019, the Teva Defendants simultaneously answered the SAC and moved to dismiss the SAC under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. See Answers, ECF 74, 75; Motion to Dismiss, ECF 73. Following completion of briefing on the motion to strike and motion to dismiss, the Court vacated the scheduled hearing dates of October 24, 2019 and October 31, 2019 and advised the parties that the motions would be submitted for decision without oral argument. See Order Vacating Motion Hearings, ECF 80.

         For the reasons discussed below, the Court GRANTS the Teva Defendants' motion to dismiss the SAC for lack of personal jurisdiction, without leave to amend; TERMINATES AS MOOT the Teva Defendants' motion to strike the SAC; and sua sponte ORDERS Plaintiff to SHOW CAUSE why the SAC should not be dismissed as to the remaining Defendants.

         I. TEVA DEFENDANTS' MOTION TO DISMISS SAC UNDER RULE 12(b)(2)

         The Court first addresses the Teva Defendants' motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2). A Rule 12(b)(2) motion “must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b). In the present case, the Teva Defendants filed the Rule 12(b)(2) motion simultaneously with their answers. See Motion to Dismiss, ECF 73; Answers, ECF 74, 75. “[S]hould the defendant file a Rule 12(b) motion simultaneously with the answer, the district court will view the motion as having preceded the answer and thus as having been interposed in timely fashion.” 5C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1361 (3d ed. 2004); see also Hosain-Bhuiyan v. Barr Labs., Inc., No. 17 CV 114 (VB), 2017 WL 4122621, at *2 (S.D.N.Y. Sept. 14, 2017) (finding Rule 12(b)(2) motion to dismiss timely where motion was filed simultaneously with answer). Accordingly, the Court finds the Rule 12(b)(2) motion to be timely. Plaintiff does not argue to the contrary.

         A. Legal Standard

         A party may challenge the Court's personal jurisdiction over it by bringing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2). When a defendant raises a challenge to personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). The plaintiff may meet that burden by submitting affidavits and discovery materials. Id. “Where, as here, the defendant's motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.” Id. (internal quotation marks and citation omitted). “[T]he plaintiff cannot simply rest on the bare allegations of its complaint, ” but when evaluating the plaintiff's showing, the court must accept uncontroverted allegations in ...


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