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Thelma Bunting, Individually and As Personal Representative of the Estate of v. Bristol-Myers Squibb Co

July 12, 2011


The opinion of the court was delivered by: Wolfson, District Judge:



Presently before the Court is a motion to dismiss Plaintiff Thelma Bunting's ("Mrs. Bunting" or "Plaintiff") survival action based upon the applicable statute of limitations, filed by Defendants Bristol Myers-Squibb Company, Sanofi-Aventis U.S., L.L.C., Sanofi-Aventis U.S., Inc., and Sanofi-Synthelabo, Inc., (collectively, "Defendants"). For the following reasons, the Court grants Defendants' motion.


This case arises from a diversity action filed by Mr. and Mrs. Bunting (the "Buntings"), who are Colorado residents, against Defendants on December 18, 2006, alleging various causes of action related to Mr. Bunting's ingestion of Plavix. The Buntings filed an Amended Complaint on May 1, 2009. Essentially, the Amended Complaint alleges negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promotion, marketing, distributing, labeling and/or the sale of Plavix. Am. Compl. ¶¶ 6-8. In that connection, the Amended Complaint asserts the following Colorado state law claims: (1) products liability -- design (Count I); (2) products liability -- manufacturer (Count II); (3) products liability -- failure to warn (Count III); (4) negligence (Count IV); (5) negligent misrepresentation (Count V); (6) violations of Colorado's Consumer Protection Act (Count VI); (7) loss of consortium (Count VII). See Id. Subsequently, the Court dismissed Counts V and VI of the Amended Complaint.

Mr. Bunting died on May 6, 2009. Shortly thereafter, Defendants filed a Suggestion of Death on June 9, 2010. Because Mrs. Bunting had not been named personal representative for her husband's estate within 90 days of the Suggestion of Death being entered, she did not move to substitute party within the time limits set forth by Fed. R. Civ. P. 25. Based upon that deficiency, Defendants filed a motion to dismiss Plaintiff's Amended Complaint. After a hearing, on December 13, 2010, this Court dismissed the Amended Complaint and provided Plaintiff ten days to re-file the complaint with the proper party. On December 21, 2010, Plaintiff re-filed the complaint, naming her as the proper party to the lawsuit ("Survival Action"). Thereafter, Defendants filed the instant motion maintaining that because the Court dismissed the Amended Complaint, the statute of limitations had run on Plaintiff's Survival Action.


A.Standard of Review

The Federal Rules of Civil Procedure provide that a complaint "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). The purpose of a complaint is "to inform the opposing party and the court of the nature of the claims and defenses being asserted by the pleader and, in the case of an affirmative pleading, the relief being demanded." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).

In reviewing a motion to dismiss for failure to state a claim under 12(b)(6), a Court must take all allegations in the complaint as true, viewed in the light most favorable to the plaintiff "and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted.) In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court "retired" the language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Rather, the factual allegations in a complaint "must be enough to raise a right to relief about the speculative level." Id. at 555. The Third Circuit summarized the pleading requirement post-Twombly:

The Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of 'the necessary element.'

Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).

In affirming that the Twombly standard applies to all motions to dismiss, the Supreme Court recently further clarified the 12(b)(6) standard. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1950. Accordingly, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. In short, "a complaint must do more than alleged the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

The Third Circuit recently reiterated that "judging the sufficiency of a pleading is a context-dependent exercise" and "[s]ome claims require more factual explication than others to state a plausible claim for relief." West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010). This means that, "[f]or example, it generally takes fewer factual allegations to state a claim for simple battery than to state a claim for antitrust conspiracy." Id. That said, the Rule 8 ...

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