The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:22-CV-00658-FDW-SCR
ALBERT C. BURGESS JR., )
)
Plaintiffs, )
)
v. ) ORDER
)
MYLAN PHARMACEUTICALS, INC. )
RUGBY LABORATORIES, INC., )
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Defendants. )
)
THIS MATTER is before the Court on Defendant Mylan Pharmaceuticals, Inc.’s
(“Mylan”) Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted and, alternatively, Motion for More Definite Statement pursuant to
Fed. R. Civ. P. 12(e), (Doc. No. 26); and Defendant Rugby Laboratories, Inc.’s (“Rugby”) Motion
to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and, alternatively, Motion for More Definite
Statement pursuant to Fed. R. Civ. P. 12(e), (Doc. No. 28). These motions have been fully briefed,
(Doc. Nos. 27, 28, 36, 37, 38), and are ripe for ruling. For the reasons set forth below, Defendant
Mylan’s Motion to Dismiss is GRANTED; Defendant Rugby’s Motion to Dismiss is GRANTED;
and Plaintiff’s Complaint, (Doc. No. 23), is DISMISSED WITH PREJUDICE. Furthermore,
Defendant Mylan’s Motion for More Definite Statement is DENIED AS MOOT and Defendant
Rugby’s Motion for More Definite Statement is DENIED AS MOOT.
I. Background
Plaintiff, who is proceeding pro se, initiated this action in a North Carolina state court on
October 3, 2022. (Doc. No. 1-2). Defendant Mylan, with the consent of Defendant Rugby, removed
the case to this Court on December 8, 2022. (Doc. No. 1). Both Defendants filed their first Motion
to Dismiss Plaintiff’s initial Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and, alternatively,
Motion for More Definite Statement pursuant to Fed. R. Civ. P. 12(e) on December 15, 2022.
(Doc. Nos. 4, 5, 7). For the reasons stated in Defendants’ initial motions, the Court granted the
portion of the initial motions seeking a more definite statement pursuant to Fed. R. Civ. P. 12(e)
and denying the portion seeking dismissal on December 22, 2022. (Doc. No. 11). In response to
the Court’s Order, Plaintiff filed an Amended Complaint on February 27, 2023. (Doc. No. 17).
Defendants responded by filing a second Motion to Dismiss Plaintiff’s Amended Complaint
pursuant to Fed. R. Civ. P. 12(b)(6) and, alternatively, Motion for More Definite Statement
pursuant to Fed. R. Civ. P. 12(e) on March 13, 2023. (Doc. Nos. 18, 19, 20). Once again, the Court
granted the portion of the second Motions seeking a more definite statement pursuant to Fed. R.
Civ. P. 12(e) and denying the portion seeking dismissal on April 4, 2023. (Doc. No. 21). In
response to the Court’s Order, Plaintiff filed a second Amended Complaint (“Second Amended
Complaint”) on May 1, 2023. (Doc. No. 23). Defendants responded with another Motion to
Dismiss Plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6) and, alternatively, Motion for
More Definite Statement pursuant to Fed. R. Civ. P. 12(e) on May 15, 2023. (Doc. Nos. 26, 27,
28). Plaintiff responded to the motions related to his Second Amended Complaint on July 25, 2023.
(Doc. No. 36). Defendants responded to Plaintiff’s response on August 1, 2023. (Doc. Nos. 37,
38).
Plaintiff’s Second Amended Complaint seeks to recover monetary damages for injuries
caused by products allegedly sold by Defendants. (Doc. No. 23, p. 4). At best and construing the
allegations liberally, the Second Amended Complaint lists two causes of action: (1) “the
Defendants [are] negligent in their buying and re-selling a produce [sic] which is not up to the
standars [sic] the FDA requires for [all] medicines distributed in this country,” which the Court
liberally construes to mean product liability under negligence; and (2) “[p]roduct [l]iability claims
under North Carolina [l]aw,” which the Court liberally construes to mean product liability under
contract principles of warranty. (Doc. No. 23, pp. 3-4). To support the causes of action, Plaintiff
alleges Defendants knowingly distributed subpar lidocaine patches that did not meet FDA
standards and were inferior to similar products made in China. (Doc. No. 23, p. 3). Plaintiff alleges
the patches were subpar because they were “paper thin,” contained small amounts of medication,
and were unusable. (Doc. No. 23, pp. 2-3). As a result of the subpar patches, Plaintiff alleges he
suffered pain. (Doc. No. 23, pp. 2-3). The allegations supporting his two causes of action end there.
II. Analysis
A. Rule 12(b)(6) Motion to Dismiss
In order to survive a 12(b)(6) motion to dismiss, a complaint must contain more than mere
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must plead facts
sufficient to “raise a right to relief above the speculative level” and to demonstrate that the claim
is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim is
facially plausible when the factual content of the complaint allows the court to “draw the
reasonable inference that the defendant is liable for the misconduct.” Iqbal, 556 U.S. at 678.
Moreover, when considering a Rule 12(b)(6) motion to dismiss, a court must accept as true
all the well-pleaded factual allegations contained within the complaint and must draw all
reasonable inferences in the plaintiff's favor. Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir.
2017). However, a court need not accept as true any legal conclusions stated by the plaintiff. Iqbal,
556 U.S. at 678.
Furthermore, when considering a motion to dismiss involving pro se parties, courts should
construe the pleadings liberally to ensure that valid claims do not fail merely for lack of legal
specificity. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see generally Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). This liberal construction, however, need not extend to
outright advocacy for the pro se plaintiff. Gordon, 574 F.2d at 1151.
Finally, the standards listed apply equally to cases removed from state court as they do in
cases originating in federal court. Fed. R. Civ. P. 81(c).
In this case, the Court concludes Plaintiff’s claims must be dismissed because the Second
Amended Complaint fails to provide sufficient factual allegations to put Defendants on notice and
to satisfy the federal pleading requirements to support either a claim of product liability under the
tort of negligence or product liability under contract principles of warranty.
Product liability actions in North Carolina are governed by statute. See N.C. GEN. STAT.
§99B-1, et seq. A product liability action is defined as “any action brought for or on account of
. . . property damage caused by or resulting from the manufacture, construction, design,
formulation, development of standards, preparation, processing, assembly, testing, listing,
certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any
product.” Id. § 99B-1(3). “A products liability claim normally contemplates injury or damage
caused by a defective product . . . and recovery is premised on either negligence or on the contract
principles of warranty.” Red Hill Hosiery Mill, Inc. v. MagneTek, Inc., 530 S.E.2d 321, 325–26
(N.C. Ct. App. 2000) (emphasis added; quotation omitted); see Moore v. Coachmen Indus., Inc.,
499 S.E.2d 772, 777 (N.C. Ct. App. 1998); Crews v. W.A. Brown & Son, Inc., 416 S.E.2d 924,
928 (N.C. Ct. App. 1992).
1. Product Liability Based on Negligence
When a plaintiff asserts a product liability claim based on negligence, “the plaintiff must
prove duty, breach, causation, and damages.” Sparks v. Oxy-Health, LLC, 134 F. Supp. 3d 961,
986 (E.D.N.C. 2015) (citing Bryant v. Adams, 448 S.E.2d 832 (N.C. Ct. App. 1994)). Those
elements are satisfied as to a design or manufacturing defect if the plaintiff demonstrates “(1) the
product was defective at the time it left the control of the defendant, (2) the defect was the result
of defendant’s negligence, and (3) the defect proximately caused plaintiff damage.” Red Hill
Hosiery Mill, Inc. v. MagneTek, Inc., 530 S.E.2d 321, 326 (N.C. Ct. App. 2000); see also City of
High Point, N. Carolina v. Suez Treatment Sols. Inc., 485 F. Supp. 3d 608, 630 (M.D.N.C. 2020).
In this case, Plaintiff has not alleged enough facts for a plausible finding of product liability
under the tort of negligence since there are not enough facts in the complaint to satisfy any of the
three elements listed above. Rather, in support of his negligence claim, Plaintiff alleges Defendants
are negligent for distributing a faulty product that does not meet FDA standards. (Doc. No. 23, p.
4). Nothing in the Second Amended Complaint indicates a defect in the patches. Nothing in the
Second Amendment Complaint identifies how the defect occurred or any negligent act by the
Defendants causing the defect. Furthermore, Plaintiff still does not even allege basic facts to
support an injury proximately caused by Defendants, such as when his injury occurred and how
many times the injury was associated with a lidocaine patch, despite the guidance provided by this
Court. (Doc. No. 21). Without these basic factual allegations, the Court cannot draw a reasonable
inference that Defendants are liable for the tort of negligence.
2. Product Liability Based on the Contract Principles of Warranty
When a plaintiff asserts a product liability claim based on the contract principles of
warranty, the plaintiff must prove “(1) the defendant warranted the product (express or implied) to
plaintiff, (2) there was a breach of that warranty in that the product was defective at the time it left
the control of the defendant, and (3) the defect proximately caused plaintiff damage.” Red Hill
Hosiery Mill, Inc. v. MagneTek, Inc., 530 S.E.2d 321, 326 (N.C. Ct. App. 2000).
In this case, Plaintiff has not alleged enough facts for a plausible finding of product liability
under contract principles of warranty. Other than a conclusory statement, (Doc. No. 23, p. 4),
Plaintiff does not allege that the lidocaine patches were sold with any kind of warranty, who
manufactured the lidocaine patch, or specific instances of injury that were caused by the defective
lidocaine patches. The gravamen of Plaintiff’s allegation is that the patches at issue do not work
as well as other brands. Without these basic factual allegations, the Court cannot draw a reasonable
inference that Defendants are liable for product liability under contract principles of warranty.
B. Motion to Dismiss with Prejudice
Courts may dismiss claims if dismissal without prejudice would be futile. See Mayfield v.
United Grocery Outlet, 2022 WL 2102018, at *4 (W.D.N.C. May 6, 2022). Here, dismissal without
prejudice would be futile because Plaintiff had three opportunities to amend his Complaint to meet
the minimum pleading standards and repeatedly failed to do so despite guidance from the Court.
Accordingly, Plaintiff's claims pursuant to product liability are dismissed with prejudice.
C. Rule 12(e) Motion for a More Definite Statement
Plaintiff's Rule 12(e) motion is MOOT. “[T]o survive a Rule 12(e) motion, ‘a pleading
must be sufficient to survive a Rule 12(b)(6) motion to dismiss.’” Chao v. Rivendell Woods, Inc.,
415 F.3d 342, 349 n. 3 (4th Cir. 2005). As explained herein, Plaintiff’s complaint cannot survive
the Defendants’ 12(b)(6) motions to dismiss. Thus, the Court denies the Rule 12(e) motions.
III. Conclusion
IT IS THEREFORE ORDERED that Defendant Mylan’s Motion, (Doc. No. 26), is
GRANTED IN PART AND DENIED IN PART; Defendant Rugby’s Motion, (Doc. No. 28), is
GRANTED IN PART AND DENIED IN PART; and Plaintiff’s Complaint, (Doc. No. 23), is
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Clerk is respectfully directed to CLOSE THIS
CASE.
IT IS SO ORDERED.
Signed: September 19, 2023
Frank D. Whitney é □ □
United States District Judge Bgl