United States District Court, D. Nevada
before the court is defendant Jubilant Cadista
Pharmaceutical's (“Jubilant”) motion to
dismiss (ECF No. 41) plaintiff Devra Haney-Williams'
amended complaint (ECF No. 30). Haney-Williams filed a
response (ECF No. 55), to which Jubilant replied (ECF No.
before the court is Jubilant's motion to dismiss (ECF No.
43) cross-claimant Sam's West, Inc.'s d/b/a Sam's
Pharmacy #10-4974 (“Sam's Pharmacy”) amended
crossclaim (ECF No. 33). Sam's Pharmacy filed a response
(ECF No. 47), to which Jubilant replied (ECF No. 59).
action arises from injuries Haney-Williams allegedly suffered
as a result of her use of Lamotrigine, a generic prescription
medication. (ECF No. 30). The amended complaint contains the
is a pharmaceutical company that manufactures Lamotrigine, a
generic prescription drug used to treat epilepsy.
Id. On September 25, 2015, Haney-Williams was
prescribed 25mg of Lamotrigine to be taken daily for one
week, and then 50mg of the same to be taken daily during the
second week. Id. The dosage was to increase on a
weekly basis, up to 125 mg of Lamotrigine by the fifth week.
October 6, 2015, Sam's Pharmacy dispensed one bottle of
100mg tablets of Lamotrigine (270 count) to Haney-Williams,
rather than the prescribed 25mg tablets. Id.
Sam's Pharmacy was aware that this was
Haney-Williams' first prescription for Lamotrigine at the
time it dispensed her prescription. Id.
about October 13, 2015, Haney-Williams began taking the 100mg
tablets on a daily basis. Id. On or about October
24, 2015, Haney-Williams was hospitalized and ultimately
diagnosed with Toxic Epidermal Necrolysis. Id. She
suffered blistering and loss of skin over eighty percent of
her body, as well as neurological injuries, and was rendered
permanently blind. Id.
originally filed her complaint in Nevada state court on
October 20, 2017. (ECF No. 1, Ex. A). Defendant
GlaxoSmithKline LLC removed this action on November 20, 2017.
(ECF No. 1). On November 13, 2018, Haney-Williams filed an
amended complaint dismissing GlaxoSmithKline as a defendant
and adding Jubilant as a defendant. (ECF No. 30). The amended
complaint appears to assert several causes of action against
Jubilant and Sam's Pharmacy. Id.
November 27, 2018, Sam's Pharmacy filed an amended
crossclaim against Jubilant, alleging seven causes of action:
(1) comparative negligence; (2) equitable indemnity; (3)
contractual indemnity; (4) contribution; (5) breach of
contract; (6) breach of express and implied warranty; and (7)
declaratory relief. (ECF No. 33).
Jubilant moves to dismiss Haney-Williams' amended
complaint (ECF No. 41) and Sam's Pharmacy's amended
crossclaim (ECF No. 43).
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must
provide “[a] short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not
require detailed factual allegations, it demands “more
than labels and conclusions” or a “formulaic
recitation of the elements of a cause of action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pleaded factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged - but it has not shown - that the pleader is
entitled to relief.” Id. at 679. When the
allegations in a complaint have not crossed the line from
conceivable to plausible, plaintiff's claim must be
dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held,
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is ...