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Ezra v. Weitz & Luxenberg, P.C.

United States District Court, D. Nevada

October 10, 2017

BEVERLY J. EZRA, Plaintiff, WEITZ & LUXENBERG, P.C., et al. Defendants.

          ORDER DEFENDANTS' MOTIONS TO DISMISS (ECF NOS. 11 AND 45)

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This case is before the Court on a Motion to Dismiss by Defendant Bristol-Myers Squibb (“BMS”) (ECF No. 11) and a Motion to Dismiss by Defendant Medical Engineering Corporation (“MEC”) (ECF No. 45). Plaintiff Beverly J. Ezra (“Ezra” or “Plaintiff”) claims that Defendants, who were involved in litigation with Plaintiff in the Eastern District of New York from 1998-2000, breached a Tolling Agreement signed with Plaintiff during the course of that litigation. BMS and MEC have joined in one another's motions, so the Court considers the motions together.

         For the reasons stated below, the motions are GRANTED with respect to Plaintiff's fraud and IIED claims, and DENIED with respect to Plaintiff's breach of contract and breach of covenant of good faith and fair dealing claims.

         II. BACKGROUND

         A. Factual Background

         The following factual allegations are taken from Plaintiff's complaint. (ECF No. 1). Plaintiff Beverly J. Ezra sustained severe injuries as a result of her exposure to toxic chemicals used in her breast implants, manufactured and distributed by BMS and MEC. On or about July 7, 1997, Ezra retained Sybil Shainwald, Esq., to represent her in an action against the manufacturers. On January 9, 1998, by and through her attorney, Sybil Shainwald, Ezra filed a summons and complaint against BMS and MEC in the U.S. District Court, Eastern District of New York, under Case No. 1-98-cv-00118-JBW.

         Soon thereafter, the Law Office of Sybil Shainwald referred Ezra's case to Defendant Weitz & Luxenberg, P.C., who assumed the role of Ezra's legal representatives in the New York case. On or about January 21, 2000, Robert J. Gordon, a member of Weitz & Luxenberg, sent a letter to Ezra indicating that he had negotiated a Tolling Agreement with the attorneys for Defendants, BMS and MEC. It was explained to Ezra that the Tolling Agreement would allow her to withdraw her case without costs and without prejudice to refiling at a later time. The letter informed Ezra that it was in her best interests to sign the Tolling Agreement so that she could keep her existing local case intact and later litigate it, using additional medical information which was soon to be published.

         Ezra was assured by her lawyer that the statute of limitations would not run against her if she filed the Tolling Agreement. Ezra signed the Tolling Agreement on January 26, 2000. The Tolling Agreement further specified that if she did not refile her action within one year of the dismissal of the referenced case, that the named Defendants would agree to toll the applicable statute of limitations for those actions, from the date of the dismissal to a date two years after Ezra's death.

         On August 31, 2000, without Ezra's consent or knowledge, and in contradiction to the Tolling Agreement, her attorneys and the named Defendants entered into, and filed with the Court, a Stipulation dismissing Ezra's case with prejudice.

         Ezra first became aware that her case had been dismissed with prejudice on October 26, 2015, when her attorney in the instant case looked up the earlier case, and informed her of this fact. Ezra generally alleges that Defendants caused severe emotional distress to her.

         B. Procedural Background

         Plaintiff filed her Complaint on March 6, 2016. (ECF No. 1). Defendant BMS filed its Motion to Dismiss on April 19, 2016. (ECF No. 11). Plaintiff responded on May 3, 2016 (ECF No. 17), and Defendant Replied on May 13, 2016 (ECF No. 25). Defendant MEC filed its Motion to Dismiss on September 27, 2016. (ECF No. 45). Plaintiff responded on October 12, 2016 (ECF No. 47), and Defendant replied on October 24, 2016. (ECF No. 48). Defendants BMS and MEC joined in one another's motions. Plaintiff brings claims for Breach of Contract; Breach of the Covenant of Good Faith and Fair Dealing; Misrepresentation, Fraud, and Deceit; and Intentional Infliction of Emotional Distress.

         III. ...


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