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Ware v. C.R. Bard

August 28, 2007

CARMEN YVETTE WARE AND GERALD L. WARE, PLAINTIFFS,
v.
C.R. BARD, INC. AND/OR D/B/A BARD ACCESS SYSTEMS, INC., DEFENDANTS.



The opinion of the court was delivered by: Edgar

MEMORANDUM

Plaintiffs Carmen Yvette Ware and Gerald L. Ware bring this action for relief pursuant to the Tennessee Consumer Protection Act, Tenn. Code Ann. §§ 29-28-101 et seq. ("TCPA"). The Plaintiffs originally filed their complaint in the Circuit Court of Hamilton County, Tennessee. Defendants C.R. Bard, Inc. and/or d/b/a Bard Access Systems, Inc. ("Bard") removed the action to this court on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332. [Court Doc. No. 1]. Prior to filing its answer to the complaint, Bard filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). [Court Doc. No. 3]. Plaintiffs oppose the motion to dismiss, and they have also filed an amended complaint. [Court Doc. Nos. 5, 9].

The Court has reviewed the relevant pleadings and applicable law relating to this motion and has determined that Bard's motion to dismiss will be DENIED as moot. Bard's request for oral argument pertaining to its motion to dismiss will also be denied as moot.

I. Background

Plaintiffs' original complaint alleges that Bard manufactures devices known as "port-a- caths," devices implanted internally for the administration of intravenous medications. [Court Doc. No. 1-2]. Plaintiffs contend that Bard promoted its port-a-caths as suitable for the long-term administration of medications with a lifespan of up to 10 years. The original complaint alleges that Carmen Ware underwent surgery for placement of a Bard port-a-cath on September 5, 2005 for the purpose of the infusion of chemotherapeutic medication for the long-term treatment of breast cancer. Plaintiffs allege that the device remained sealed in its original box until Carmen Ware's surgeon removed it immediately prior to the surgery. Ms. Ware received medications via the port-a-cath for about two months during October and November of 2005.

Plaintiffs allege that around June 7, 2006 Ms. Ware complained to her doctor of heart fluttering, chest pain, perspiration, shortness of breath, dizziness, weakness and near fainting. [Court Doc. No. 1-2]. Ms. Ware received a chest X-ray and an electrocardiogram ("EKG"). Her physicians asked her to return to the hospital, and on June 8, 2006, Ms. Ware underwent surgery to remove the port-a-cath, which had allegedly traveled to her heart causing "life threatening abnormal rhythms of the heart." Id. Ms. Ware's physicians informed her that the port-a-cath had broken loose and traveled to her heart. They further informed her that while having the port-acath travel to the heart is an uncommon occurrence, if it does happen at all, it is not until five or ten years after implantation. Id.

Plaintiffs assert that Ms. Ware remained in the hospital for three days following surgery to remove the port-a-cath. She allegedly experienced pain due to the surgery and wandering porta-cath, as well as substantial medical expenses and lost time from work. The first complaint alleges a claim of tortious misrepresentation, breach of the implied warranties of merchantability and fitness for a particular purpose, and violation of the TCPA.

Bard moved to dismiss Plaintiffs' original complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). [Court Doc. No. 3]. Prior to this court's ruling on Bard's motion to dismiss, Plaintiffs filed an amended complaint. [Court Doc. No. 9].

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court "must read all well-pleaded allegations of the complaint as true." Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997) (citing Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996)). In addition, a court must construe all allegations in the light most favorable to the plaintiff. Bower, 96 F.3d at 203 (citing Sinay v. Lamson & Sessions, 948 F.2d 1037, 1039 (6th Cir. 1991)). The U.S. Supreme Court has recently explained "an accepted pleading standard" that "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, __ U.S. ___, 127 S.Ct. 1955, 1969 (2007). The complaint "must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory." Weiner, 108 F.3d at 88 (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993)).

III. Analysis

Plaintiffs point out that Fed. R. Civ. P. 15(a) allows them to amend their complaint once as a matter of right before a responsive pleading is served. The rule states in relevant part: "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). Further, it is well-established that a motion to dismiss does not constitute a responsive pleading. See e.g., Youn v. Track, Inc., 324 F.3d 409, 415 n.6 (6th Cir. 2003); Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 420 (6th Cir. 2000); United States v. Snyder, 2007 WL 1029781, No. 06cv0141 *1 (W.D. Penn. April 2, 2007); Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1131 (10th Cir. 1994); McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002). The term "responsive pleading" is defined in Fed. R. Civ. P. 7(a) and includes only a complaint, an answer to a complaint or cross-claim, a third-party complaint and answer thereto, and a reply to a counterclaim. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003); Fed. R. Civ. P. 7(a).

Bard has not yet filed its answer to the complaint, thus under Fed. R. Civ. P. 15(a), Plaintiffs have the absolute right to amend their complaint without leave of this court. Therefore, Bard's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) has been rendered moot by Plaintiff's filing of their amended complaint. See e.g., Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) (citing Standard Chlorine of Delaware, Inc. v. Sinibaldi, 821 F.Supp. 232, 239-40 (D. Del. 1992)); Chandler v. Cheesecake Factory Restaurants, Inc., 239 F.R.D. 432, 440 n.5 (M.D.N.C. 2006); Turner v. Kight, 192 F.Supp.2d 391, 397 (D. Md. 2002).This court will thus DENY the motion to dismiss the original complaint as moot.

In the event that Bard is tempted to bring another motion to dismiss pursuant to Rule 12(b)(6), this court has reviewed the amended complaint and has determined that Plaintiffs have corrected the ...


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