United States District Court, D. Nevada
BEVERLY J. EZRA, Plaintiff, WEITZ & LUXENBERG, P.C., et al. Defendants.
ORDER DEFENDANTS' MOTIONS TO DISMISS (ECF NOS. 11
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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
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.
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