Stewart v. Sanofi Aventis U.S., LLC

• Decision Date: 30 April 2013
• Docket Number: Case No.: 4:13-CV-539-VEH
• Parties: DANIEL STEWART, JR., Plaintiff, v. SANOFI AVENTIS U.S., LLC, Defendant.
• Court: U.S. District Court — Northern District of Alabama

DANIEL STEWART, JR., Plaintiff,

v.SANOFI AVENTIS U.S., LLC, Defendant.

Case No.: 4:13-CV-539-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

DONE and ORDERED: April 30, 2013

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff Daniel Stewart, Jr. ("Mr. Stewart") initiated this products liability action in the Circuit Court of Etowah County, Alabama, on July 26, 2012. (Doc. 1 ¶ 1). Defendant Sanofi Aventis U.S., LLC ("Sanofi") removed the lawsuit to federal court on March 21, 2013. (Doc. 1 at 1). The case was reassigned to the undersigned on March 26, 2013. (Doc. 9). Sanofi filed an amended removal petition on April 5, 2013. (Doc. 14).

Pending before the court is Sanofi's Motion To Dismiss (Doc. 12) (the "Motion") filed on March 28, 2013. (Doc. 12). Mr. Stewart has filed no opposition to the Motion, which under Appendix III to the court's uniform initial order was due on April 11, 2013. (See Doc. 2 at 23 ¶ B.2 ("The opponent's responsive brief shallbe filed no later than fourteen (14) calendar days thereafter.")). Accordingly, the Motion is now ready for disposition, and, for the reasons explained below, is GRANTED IN PART and is otherwise DENIED.

II. Standards

A. Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the complaint provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).

While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of "detailed factual allegations" within a complaint. Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same time, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563.

"[A] court considering a motion to dismiss can choose to begin by identifyingpleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 129 S. Ct. at 1950. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (emphasis added). "Under Twombly's construction of Rule 8 . . . [a plaintiff's] complaint [must] 'nudge[] [any] claims' . . . 'across the line from conceivable to plausible.' Ibid." Iqbal, 129 S. Ct. at 1950-51.

A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556).

B. Mr. Stewart's Failure to Oppose

Mr. Stewart's failure to file any opposition does not automatically mean that the Motion is due to be granted. As explained by Judge Steele in Branch Banking and Trust Co. v. Howard, No. 12-0175-WS-N, 2013 WL 172903, *1 (S.D. Ala. Jan. 16, 2013):

As noted, Churchill and Howard elected not to be heard inresponse to BB & T's Amended Motion to Dismiss. Notwithstanding that omission, BB & T (as Rule 12(b)(6) movant) bears the initial burden of demonstrating that it is entitled to dismissal of the counterclaims. Churchill's and Howard's lack of response to the Rule 12(b)(6) Motion does not trigger the kneejerk granting of such Motion on an abandonment theory. See Gailes v. Marengo County Sheriff's Dep't, 2013 WL 81227, *5 (S.D. Ala. Jan. 4, 2013) ("the Court will not treat a claim as abandoned merely because the plaintiff has not defended it in opposition to a motion to dismiss"). Rather, it remains BB & T's burden as movant to establish its entitlement to relief under Rule 12(b)(6). In light of these circumstances, the Court scrutinizes BB & T's Motion to Dismiss in accordance with the following legal standard: "the Court will review the merits of the [movant]'s position and, if it is clearly incorrect or inadequate to satisfy the [movant]'s initial burden, will deny the motion despite the [nonmovant]'s failure to respond. If, however, the [movant]'s presentation is adequate to satisfy its initial burden, the Court will not deny the motion based on arguments the [nonmovant] could have made but by silence elected not to raise." Id.

Branch Banking, 2013 WL 172903, *1 (footnotes omitted).

III. Analysis

Mr. Stewart's second amended complaint indicates that he is suing Sanofi in its capacity as a designer, manufacturer, and seller of the prescription drug named Ambien. (Doc. 12-1 at 1 ¶ 1).¹ Mr. Stewart claims that his use of zolpidem, the generic form of Ambien, as a sleeping aid on the night of October 3, 2011, caused him to engage in bizarre and erratic acts of misconduct while he was out of town in Indiana on a business trip, which culminated in his arrest and the loss of his job. (Id.at 3 ¶ 5; id. at 4 ¶¶ 7, 10).

Mr. Stewart does not allege Sanofi is a designer, manufacturer, or seller of zolpidem. (Doc. 12-1 at 3 ¶ 5). Instead, he contends that other former defendants (that were dismissed during the course of the state court proceedings)² are responsible for the production and supply of zolpidem as a generic drug on the market. (Id.). Mr. Stewart's alleged damages include "much humiliation, embarrassment and chagrin . . . psychological and mental pain and suffering . . . ." (Doc. 12-1 at 11 ¶ 13).

Mr. Stewart asserts three separate counts against Sanofi: count one for negligently, wantonly, and/or willfully failing to adequately warn; count two for fraudulent concealment; and count three for breach of implied warranty for a particular purpose. (Doc. 12-1 at 11-12).

A. Applicable Law

As a threshold matter, Sanofi asserts in its Motion that this court should apply Indiana law when evaluating the ability of Mr. Stewart to state a claim against it. More specifically, following Alabama's choice of law principles as this is a diversitycase,³ Sanofi maintains that because Mr. Stewart "was injured in Indiana . . . Indiana law applies to his claims against [it]." (Doc. 12 at 3). The court agrees.

As the Supreme Court of Alabama has articulated:

Lex loci delicti has been the rule in Alabama for almost 100 years. Under this principle, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Norris v. Taylor, 460 So.2d 151, 153 (Ala.1984); Mullins v. Alabama Great Southern R.R., 239 Ala. 608, 195 So. 866 (1940); Dawson v. Dawson, 224 Ala. 13, 138 So. 414 (1931); Alabama Great Southern R.R. v. Carroll, 97 Ala. 126, 11 So. 803 (1892). The plaintiff contends that the doctrine of lex loci delicti is outmoded and unfair. He urges Alabama to adopt the approach of the Restatement (Second) of Conflict of Laws (1971). . . .

After careful consideration, we are not convinced that we should abandon the lex loci delicti rule for the approach of the Restatement (Second) on the facts of the present case. Professor Kay and other commentators tell us that the adoption of the approach of the Restatement (Second) has not brought certainty or uniformity to the law:

"Some state courts routinely list [the Restatement's] relevant sections in their opinions and try to follow them; this task is easiest when the case is controlled by one of the Restatement Second's specific narrow rules. Other state courts have not been consistent in their terminology about what approach they are following, and others have retained primary emphasis on the place of the wrong in tort cases, even while abandoning the lex loci delicti for the Restatement Second. . . . This review of the cases suggests that, if the original Restatement was unsuccessful becauseof its dogmatic rigidity and its insistence on the uncritical application of a few specific rules, the Restatement Second may fail to provide enough guidance to the courts to produce even a semblance of uniformity among the states following its method. In the drafters' attempt to mollify their critics, they have created an umbrella for traditionalist and modern theorist alike: a fragile shelter that may prove itself unable to survive any but the most gentle of showers."

We find that we agree with the Supreme Court of Georgia. The newer approaches to choice of law problems are neither less confusing nor more certain than the traditional approach. "Until it becomes clear that a better rule exists, we will adhere to our traditional approach." General Tel. Co. v. Trimm, supra, 252 Ga. at 96, 311 S.E. 2d at 462.

We also see no need for any special exception in this particular case on public policy grounds, as the plaintiff requests. The plaintiff knew the law of Alabama at the time he filed the suits, and chose to file in Alabama. The judgment of the trial court is due to be affirmed.

Fitts v. Minnesota Min. & Mfg. Co., 581 So. 2d 819, 823 (Ala. 1991) (footnotes omitted) (emphasis added). Therefore, consistent with Fitts, the court will address Mr. Stewart's claims under Indiana law.

B. Plausibility of Mr. Stewart's Claims Under Indiana Law

1. The Indiana Product Liability Act

Sanofi suggests that all of Mr. Stewart's claims are governed by the Indiana Product Liability Act (the "IPLA"). The IPLA provides in relevant part that:

Sec. 1. This article governs all actions that are:

(1)

...