Berg v. Johnson & Johnson

• Decision Date: 12 September 2013
• Docket Number: CIV. 09-4179-KES
• Court: U.S. District Court — District of South Dakota
• Parties: DEANE BERG, Plaintiff, v. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendants.

DEANE BERG, Plaintiff, v. JOHNSON & JOHNSON; JOHNSON & JOHNSONCONSUMER COMPANIES, INC., Defendants.

CIV. 09-4179-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

Dated September 12, 2013

ORDER DENYING DEFENDANTS'

MOTION FOR JUDGMENT ON THE

PLEADINGS

The remaining defendants in this suit, Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc., move for judgment on the pleadings to dismiss plaintiff's civil conspiracy and acting in concert claims. Plaintiff, Deane Berg, resists the motion. For the following reasons, defendants' motion is denied.

DISCUSSION

Defendants' motion for judgment on the pleadings is brought under Federal Rule of Civil Procedure 12(c). "Judgment on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law, the same standard used to address a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (internal quotations and citations omitted). To survive a motion for judgmenton the pleadings, "the factual allegations in a complaint, assumed true, must suffice to state a claim to relief that is plausible on its face." Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011) (internal quotations omitted).

Defendants argue Berg's civil conspiracy claim should be dismissed for two reasons: (1) it no longer has any legal foundation, and (2) it is a legal impossibility. Both theories rely on the fact that Luzenac America, Inc. is no longer a party to this case.

First, defendants argue that because Luzenac is no longer a party to this action, Berg's civil conspiracy claim is redundant. Under South Dakota law, "civil conspiracy is not an independent cause of action, but is sustainable only after an underlying tort claim has been established." Selle v. Tozser, 786 N.W.2d 748, 756 (S.D. 2010). Civil conspiracy is "only a theory to establish [a defendant's] vicarious liability for the damages caused by the underlying tort." Id. If a defendant is found liable for the underlying tort itself, then it is unnecessary to "consider whether he may have also been vicariously liable for those damages under a civil conspiracy theory." Id. Here, because Luzenac is no longer a defendant in this action and defendants can no longer be held liable for Luzenac's torts, defendants argue the civil conspiracy claim against them is no longer appropriate.

The court agrees with defendants' interpretation of the law and the proposition that arises therefrom, which is that a civil conspiracy claim is redundant when there is only one defendant. But the court disagrees withdefendants' application of the law to the facts here because two defendants still remain—(1) Johnson & Johnson and (2) Johnson & Johnson Consumer Companies, Inc. As a result, the issue now is whether Berg's complaint sufficiently pleads a conspiracy between Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc.

Berg's civil conspiracy allegations in her complaint do not refer to specific defendants but instead refer to the defendants in the aggregate. For example, the complaint states that "Defendants individually, jointly, and in conspiracy with each other, fraudulently, willfully and maliciously withheld, concealed and suppressed said medical information regarding the increased risk of ovarian cancer from Plaintiff." Docket 1 at ¶ 45. Nowhere in the complaint's "Count Four - Civil Conspiracy" section is there a reference that only Luzenac and Johnson & Johnson or Luzenac and Johnson &...