# Williams v. Mentor Worldwide LLC

> District Court, N.D. Ohio · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10367557

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10367557

## How later opinions describe it (automated extraction)

- affirming summary judgment of LPLA failure to warn claim against collagen plug manufacturer based on preemption

## Opinion text

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JESSICA WILLIAMS, )
) CASE NO. 4:18CV0899
Plaintiff, )
) JUDGE BENITA Y. PEARSON
v. )
) MEMORANDUM OF OPINION
MENTOR WORLDWIDE LLC, ) AND ORDER
) [Resolving ECF Nos. 22, 43, 45, 47, 48,
Defendant. ) and 49]

The following motions are pending:
Defendant Mentor Worldwide LLC’s Motion to Dismiss Plaintiff's Amended
Complaint (ECF No. 22);
Pro Se Plaintiff Jessica Williams’ Motion to Strike Defendant’s Notice of
Supplemental Authority (ECF No. 43);
Pro Se Plaintiffs Motion for Judgment on the Pleadings (ECF No. 45);
Pro Se Plaintiff's Motion to Strike Defendant’s Opposition to Plaintiff's Motion
for Judgment on the Pleadings (ECF No. 47);
Defendant’s Motion to Strike Under Rule 12(f) (ECF No. 48); and,
Pro Se Plaintiff's Motions to Strike Defendant’s Motion to Strike Under Rule
12(f) and “to Strike Defendant’s Opposition to Strike Plaintiff Jessica Williams’
Motion to Strike Plaintiff's Motion for Judgment on the Pleadings” (ECF No. 49).

(4:18CV0899)
The Court has been advised, having reviewed the record, the parties’ briefs,' and the applicable
law. For the reasons that follow, the Court grants the motion to dismiss, denies the motion to
strike Defendant’s notice of supplemental authority, grants Defendant’s motion to strike under
Rule 12(f), and denies as moot the other two (2) motions.
I. Background
Pro Se Plaintiff was first surgically implanted with Mentor Saline Breast Implants in
2002. Amended Complaint (ECF No. 17) at 7.9. Over the next several years, Plaintiff had five
additional surgeries, all of which involved Mentor Saline Breast Implants. ECF No. 17 at J 8.
Plaintiff underwent these additional surgeries for many reasons, such as needing replacement
implants due to ruptures, a hematoma, and a post-operative infection. ECF No. 17 at JJ 10-21. In
2011, years after her surgeries, Plaintiff alleges that she started to experience various injuries,
including arthritis, joint swelling, skin ulcers, depression, shortness of breath, vision loss, severe
fatigue, Sjogren’s syndrome, discoid lupus, and cognitive problems. ECF No. 17 at ¥ 23.
Plaintiff alleges she was eventually diagnosed with Systemic Sclerosis in 2014. ECF No. 17 at □
26.
Plaintiff asserts four (4) claims against Defendant for injuries allegedly relating to her
Mentor Saline Breast Implants: (1) failure to warn, (2) negligence (failure to warn), (3)
manufacturing defect, and (4) “device malfunction.” ECF No. 17 at 4] 30-34. All of Plaintiffs

' The Court has considered Defendant’s Notice of Supplemental Authority (ECF
No. 41). pertinent and significant authorities come to a party’s attention after the
party’s brief has been filed, a party may promptly advise the Court by serving and filing a
Notice of Supplemental Authority that sets forth the citation(s). See, e.g., Fed. R. App. P.
28(j). However, this option is not to be used to reargue issues already raised in the briefs.

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claims and allegations relate solely to the safety and effectiveness of her Mentor Saline Breast
Implants.
The Mentor Saline Breast Implants are Class III medical devices as defined by 21 C.F.R.
§ 878.3530. The most stringent controls apply to Class III devices under the Medical Device
Amendments of 1976 (“MDA”), 21U.S.C. § 360c et seg., to the Federal Food, Drug, and
Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seg. See Riegel v. Medtronic, Inc., 552 U.S. 312,
316 (2008). Because of their Class III status, the commercial sale of Mentor Saline Breast
Implants to healthcare professionals was conditioned upon the device receiving Premarket
Approval (“PMA”) from the Food and Drug Administration (“FDA”). See 21 C.F.R. §
878.3530(c).
On November 12, 1999, Defendant submitted a PMA application for its Saline Breast
Implants.” On May 10, 2000, the FDA found that the Mentor Saline Breast Implants as designed,
manufactured and labeled were safe and effective, and the FDA issued an Approval Order.’
Thereafter, Mentor Saline Breast Implants could only be sold to healthcare professionals in

> See PMA Approval Order and Summary of Safety and Effectiveness for
P990075 (ECF No. 22-3). Courts regularly take judicial notice of approval letters and
other documents on the FDA’s website. See Kodger v. Zimmer Biomet Holdings, Inc.,
No. 1:17-CV-1350, 2017 WL 4348997, at *1 (N.D. Ohio Sept. 29, 2017) (taking notice
of FDA approval letter attached to defendant’s motion to dismiss). Under federal law,
courts are required to take judicial notice of PMA approvals, which are reflected in the
Federal Register. See 44 U.S.C. § 1507 (“The contents of the Federal Register shall be
judicially noticed... .”).
> See Federal Register/Vol. 66, No. 130, July 6, 2001 Notices, TABLE 1: List of
Safety and Effectiveness Summaries for Approved PMAs Made Available from January
1, 2001 to March 31, 2001 (ECF No. 22-4).

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accordance with the design, manufacturing, and labeling specifications approved by the FDA.
ECF No. 22-4; see also 21 C.F.R. § 801.109. These approvals remain in effect and have never
been suspended or revoked.
II. Standard of Review
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must take
all well-pleaded allegations in the complaint as true and construe those allegations in a light most
favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). A
cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility
in th[e] complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Igbal_, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff is not
required to include detailed factual allegations, but must provide more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” /d. at 678. A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid
of “further factual enhancement.” Jd. at 557. It must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible on its face.” Jd. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” /gbal, 556 U.S. at 678. 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. Twombly, 550 U.S. at 556, Where a complaint

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pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’”” Jd. at 557 (brackets omitted).
“[W ]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged but it has not ‘show[n]’ ‘that the pleader is entitled to
relief.’” Jgbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). The Court “need not accept as true a
legal conclusion couched as a factual allegation or an unwarranted factual inference.”
Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (citations and internal
quotation marks omitted). Pleadings filed by pro se litigants are liberally construed. Urbina v.
Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However, this lenient treatment has limits, as “courts
should not have to guess at the nature of the claim asserted.” Wells, 891 F.2d at 594.
III. Choice of Law
Generally, “[a] federal court sitting in diversity must apply the choice-of-law rules of the
forum state.” Nationwide Mut. Fire Ins. Co. v. Gen. Motors Corp., 415 F. Supp.2d 769, 774-75
(N.D. Ohio 2006) (Dowd, J.) (citing Klaxon Co. v. Stentor Elec. Manufacturing Co., 313 US.
487, 496 (1941); Tele-Save Merch. Co. v. Consumers Distrib. Co., 814 F.2d 1120, 1122 (6th Cir.
1987)). Therefore, the Court must apply Ohio’s choice-of-law rules. Ohio follows the
Restatement (Second) of Conflict of Laws when determining choice of law issues. See Morgan
v. Biro Mfg. Co., Inc., 15 Ohio St.3d 339, 341-41 (1984). Under the Restatement, “a
presumption is created that the law of the place of the injury controls unless another jurisdiction
has a more significant relationship to the lawsuit.” Jd. at 342; see also Wahl v. Gen. Elec. Co.,
786 F.3d 491, 500 (6th Cir. 2015).

(4:18CV0899)
Ohio courts apply the following factors from § 145 of the Restatement to determine
which state has the most significant relationship to the lawsuit: (1) the place of the injury, (2) the
place where the conduct causing the injury occurred, (3) the domicile, residence, nationality,
place of incorporation, and place of business of the parties, and (4) the place where the
relationship between the parties, if any, is located. See Morgan, 15 Ohio St.3d at 342. Whena
plaintiffs injuries occur in more than one state, the court should apply the law of the state where
most of the injuries occurred or can be attributed. See Byers v. Lincoln Elec. Co., 607 F. Supp.2d
840, 847 (N.D. Ohio 2009) (O’ Malley) (applying Texas law because plaintiff spent nearly 20
years in Texas and only a few months in other states during the time period he alleged his injuries
occurred).
Although Plaintiff was implanted and received treatment in both Louisiana and Florida,
Louisiana is the state with the most significant relationship to Plaintiff and her injuries. ECF No.
17 at J] 8-26. Only her initial surgeries and two additional procedures occurred in Florida. ECF
No. 17 at 4] 9-10, 18-20. Most of the procedures and treatments Plaintiff received took place in
Louisiana, ECF No. 17 at 11-17, 23-26. Particularly, Plaintiff was diagnosed and treated for
Systemic Sclerosis entirely in Louisiana, which is the injury she devotes the most space to in her
Amended Complaint. ECF No. 17 at 9] 23-26. Additionally, Plaintiff resided in Louisiana
throughout all of her implantation and removal procedures. ECF No. 17 at ¥6. Therefore, as
Louisiana 1s the state where most of Plaintiff's injuries occurred, under Byers, the Court must
apply Louisiana law to Plaintiff's claims. Furthermore, because Louisiana law applies, the
adequacy of Plaintiff's claims must be analyzed under Fifth Circuit preemption law.

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IV. Analysis
A.
Plaintiff’s negligence and “device malfunction” claims must be dismissed under the

Louisiana Products Liability Act (“LPLA”) because such claims are not cognizable under the
Act. The LPLA sets forth four exclusive theories of recovery against a manufacturer: (1) defect
in construction or composition; (2) defect in design; (3) inadequate warning; and (4) failure to
comply with an express warranty. See McQuiston v. Boston Sci. Corp., No. 07-1723, 2009 WL
4016120, at *6 (W.D. La. Nov. 19, 2009) (citing La. Stat. Ann. § 9:2800.55-58). The LPLA
“establishes the exclusive theories of liability for manufacturers for damage caused by their
products.” La. Stat. Ann. § 9:2800.52 (“A claimant may not recover from a manufacturer for
damage caused by a product on the basis of any theory of liability that is not set forth in this

Chapter.”). Louisiana courts have held that the LPLA subsumes all other causes of action against
a manufacturer. See Jefferson v. Lead Indus. Ass’n, Inc., 930 F. Supp. 241, 245 (E.D. La. 1996),
aff’d, 106 F.3d 1245 (5th Cir. 1997) (“[N]either negligence, strict liability, nor breach of express
warranty is any longer viable as an independent theory of recovery against a manufacturer.”);
Grenier v. Med. Eng’g Corp., 99 F. Supp.2d 759, 763 (W.D. La. 2000), aff’d, 243 F.3d 200 (5th
Cir. 2001) (explaining that a negligence claim is “well outside the scope of the LPLA and must
be dismissed”). Thus, Plaintiff’s negligence and “device malfunction” claims must be dismissed.

7
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B.
1.
The U.S. Supreme Court’s decision in Riegel requires dismissal of all of Plaintiff’s

claims. Plaintiff’s claims are expressly preempted by the Medical Device Amendments
(“MDA”) to the FDCA. The MDA preempt additional or different state law requirements related
to the safety or effectiveness of a federally approved medical device. To ensure FDA oversight is
not controverted by state regulatory measures, the MDA contains an express preemption
provision which states in relevant part: “[N]o State or political subdivision of a State may
establish or continue in effect with respect to a device intended for human use any requirement
[¶] (1) which is different from, or in addition to, any requirement applicable under this Act to the
device, and [¶] (2) which relates to the safety or effectiveness of the device or to any other matter

included in a requirement applicable to the device under this chapter.” 21 U.S.C. § 360k(a). All
of Plaintiff’s claims fall squarely within the MDA’s express preemption provision.
In Riegel, the Supreme Court construed the MDA’s express preemption provision to
preempt the plaintiffs’ state law claims against a PMA-approved catheter. In so doing, the court
established a two-step inquiry for determining whether state law claims are preempted by the
MDA. First, the court “must determine whether the Federal Government has established
requirements applicable to” the medical device at issue. 552 U.S. at 321. Second, if there are

applicable federal requirements, the court must then determine whether the “common-law claims
are based upon [state] requirements with respect to the device that are ‘different from, or in

8
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addition to’ the federal ones, and that relate to safety and effectiveness.” /d. at 322 (quoting 21
U.S.C. § 360k(a)).
The court concluded that both elements of its two-step inquiry were satisfied. Approval
of a Class III medical device through the PMA process necessarily established “federal
requirements.” /d. at 321-23. Furthermore, “reference to a State’s ‘requirements’ includes its
common-law duties.” /d. at 324. The court thus ruled that plaintiffs’ state tort law claims against
the PMA-approved catheter were preempted by the express preemption provision of the MDA.
Id.
Following Riegel, “courts across the country have applied Section 360k(a) broadly,
preempting all manner of claims from strict products liability and negligence . . . to breach of
warranty. .. to failure to warn and manufacturing-and-design-defect . . . to negligence per se.” In
re Medtronic, Inc. Sprint Fidelis Leads Prods. Liab. Litig. (“Medtronic Leads’’), 592 F.Supp. 2d
1147, 1152 (D. Minn. Jan. 5, 2009) (collecting cases). Likewise, the Fifth Circuit and Louisiana
federal courts routinely apply Section 360k(a) to dismiss cases against PMA-approved Class III
medical devices based on preemption. See, e.g., Funk v. Strvker Corp., 631 F.3d 777, 782 (Sth
Cir. 2011) (dismissing manufacturing defect claim against hip implant manufacturer based on
preemption); see also Hinkel v. St. Jude Med., S.C., 869 F. Supp.2d 739, 746 (E.D. La. 2012)
(dismissing all LPLA claims involving a spinal implant as “clearly preempted by the

(4:18CV0899)
MDA”).!
2.
The first step of the preemption inquiry is the determination as to “whether the Federal
Government has established requirements applicable to” the medical device at issue i.e. to
Mentor Saline Breast Implants. Riege/, 552 U.S. at 321. The FDA has mandated specific
requirements for the manufacture and labeling of Mentor Saline Breast Implants. The Mentor
Saline Breast Implants at issue in this case is a Class III device approved by the FDA through the
PMA process. See ECF No. 22-3. The Mentor Saline Breast Implant at issue has been
manufactured and marketed pursuant to a valid and current PMA, and such approval has never
been revoked, suspended, or withdrawn. See Riegel, 552 U.S. at 319-20 (“The FDA has the
power to withdraw premarket approval based on newly reported data or existing information and
must withdraw approval if it determines that a device is unsafe or ineffective under the
conditions in its labeling.”).
The FDA-approved specifications relative to the design, manufacture, and labeling of the
Mentor Saline Breast Implants at issue are the only standard of care applicable thereto. /d. at
325. Therefore, any state-law products liability claims attempting to impose design,
manufacturing, or labeling requirements different from, or in addition to, those approved as safe
and effective by the FDA are preempted by the MDA.

* Similarly, courts within the Sixth Circuit consistently dismiss state law claims
against PMA-approved Class III medical devices based on preemption. See e.g., Warstler
v. Medtronic, Inc., 238 F. Supp. 3d 978, 987 (N.D. Ohio 2017) (dismissing negligence,
manufacturing defect, and failure to warn claims against a pain pump manufacturer based
on preemption ).
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3.
The second step of the preemption inquiry is the determination of whether Plaintiff’s state
law claims rely on any requirement of Louisiana law applicable to Mentor Saline Breast Implants

“that is ‘different from, or in addition to’ federal requirements and that ‘relates to the safety or
effectiveness of the device or to any other matter included in a requirement applicable to the
device.’” Riegel, 552 U.S. at 323 (quoting 21 U.S.C. § 360k(a)). The MDA expressly preempts
any state law claim that would impose different or additional duties relating to any requirement
imposed through the PMA process. Id. at 327-28. Like the plaintiffs in Riegel, by alleging state
law tort claims, Plaintiff is attempting to impose manufacturing and labeling requirements upon
the Mentor Saline Breast Implants which conflict with, or add a greater burden to, the specific
federal requirements imposed by the FDA when it was granted PMA. Plaintiff’s threadbare and

conclusory claims against Defendant are identical to those found to be preempted by Riegel and
its progeny. Plaintiff’s state law claims conflict with the FDA requirements for the manufacture
and labeling of Mentor Saline Breast Implants and are therefore preempted.
Plaintiff’s first claim for failure to warn is preempted under Riegel. Plaintiff asserts that
she “was never warned of the risks involved pertaining to Mentor Worldwide LLC Saline Breast
Implants,” and that she “was never told of, or even read anything in regards to the dangers that
Mentor Worldwide LLC Saline Breast Implants could possibly cause her post surgeries.” ECF
No. 17 at ¶ 30.5 Plaintiff does not allege that the labeling of her Saline Breast Implants deviated

5 Under the learned intermediary doctrine, Defendant’s duty to warn is owed to
the prescribing doctor, not Plaintiff. See Brown v. Glaxo, Inc., 790 So.2d 35, 38 (La.
(continued...)
11
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from the FDA-approved labeling. She nonetheless impermissibly seeks to impose labeling
requirements that go beyond what federal law requires. See Riegel, 552 U.S. at 327-28; see also
Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 931 (Sth Cir. 2006) (affirming summary
judgment of LPLA failure to warn claim against collagen plug manufacturer based on
preemption); Cenac v. Hubbell, No. 09-3686, 2010 WL 4174573, at *6 (E.D. La. Oct.
21, 2010) (dismissing claims against pain pump manufacturer based on preemption).
In her third claim for manufacturing defect, Plaintiff continues to assert that Defendant
“did not provide any information in regards to possible health risks associated with Mentor
Worldwide LLC Saline Breast Implants.” ECF No. 17 at 733. Although packaged as a
manufacturing defect claim, Plaintiff's allegations purport to, again, challenge the labeling of her
implants. For the reasons stated above, Plaintiff's claims seeking to impose labeling
requirements that go beyond federal law are preempted. See Riegel, 552 U.S. at 327-28. To the
extent Plaintiff alleges her implants were defectively manufactured, Plaintiff challenges the
FDA’s findings concerning the safety of Mentor Saline Breast Implants, and therefore, once
again, seeks to impose requirements that differ from federal regulations. See id.; see also Funk,
631 F.3d at 782 (dismissing manufacturing defect claim as preempted because plaintiff's claims

°(...continued)
App. Ct. 2000); Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 384
(2002).
12

(4:18CV0899)
were conclusory and vague); Poole v. Hologic, Inc., No. 10-314, 2010 WL 3021528, at *5 (W.D.
La. July 29, 2010) (same).°
The reasoning behind dismissal of each of Plaintiffs claims is in line with Riegel and its
progeny. Each claim would require “judges and juries to second-guess the balancing of benefits
and risks of a specific device to their intended patient population — the central role of the
FDA....” Horn vy. Thoratec, 376 F.3d 163, 178 (3rd Cir 2004) (quoting the FDA’s Amicus
Curiae Letter Brief at 25-26). Riegel explicitly held that state law tort claims, including causes of
action for strict liability, negligence, and breach of implied warranty, impose requirements that
are different from, or in addition to, the device-specific federal requirements, and are thus
preempted. Riegel, 552 US. at 324.
The same reasoning applies here. Plaintiff's Amended Complaint (ECF No. 17) is devoid
of any well-pled allegations that the PMA-approved Mentor Saline Breast Implants at issue in
this case were not manufactured and labeled in accordance with the specifications approved by
the FDA through the PMA process. By contending that her Mentor Saline Breast Implants were,
nevertheless, defective, or that Defendant’s warnings were, nevertheless, inadequate, Plaintiff

° Even if Plaintiff’s negligence claim was not already subject to dismissal as
being subsumed under the LPLA, it would be preempted. See Sons v. Medtronic Inc.,
915 F. Supp.2d 776, 782 (W.D. La. 2013) (dismissing negligence claim as preempted
because such claim imposes “requirements that are different from or in addition to the
federal requirement of pre-market approval”). Furthermore, it is unclear what cause of
action Plaintiff alleges in her device malfunction claim, but, to the extent that she claims
malfunction due to a manufacturing defect or inadequate warning, the claim is preempted
for the reasons stated above. See Poole, 2010 WL 3021528, at *5 (dismissing
manufacturing defect and inadequate warning claims against medical device company as
preempted).
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(4:18CV0899)
seeks to impose requirements regarding the manufacturing or labeling of the implants that are
different from, or in addition to, what the FDA approved. Moreover, Plaintiff's Amended
Complaint (ECF No. 17) is composed of speculative and conclusory allegations that are
inadequately pled. Therefore, Plaintiff has also failed to allege facts sufficient “to state a claim to
relief that is plausible on its face.” 7Twombly, 550 U.S. at 547.
4.
Finally, numerous courts both before and after Riege/ have held state law claims
related to PMA-approved breast implants are preempted. See, e.g., Vieira v. Mentor Worldwide
LLC, ---F. Supp.3d---, No. CV _19-04939-AB (PLAx), 2019 WL 3500331 (C.D.Cal. Aug. 1,
2019) (dismissing plaintiffs’ failure-to-warn and manufacturing defect claims as preempted and
with prejudice); Jacob v. Mentor Worldwide LLC, ---F. Supp.3d---, No. CV 19-01484-AB
(PLAx), 2019 WL 3500325 (C.D.Cal. Aug. 1, 2019) (dismissing plaintiffs’ failure-to-warn and
manufacturing defect claims as preempted and with prejudice); Jacob v. Mentor Worldwide LLC,
389 F. Supp.3d 1024 (M.D. Fla. 2019) (finding plaintiff failed to allege a parallel claim surviving
preemption); Ebrahimi v. Mentor Worldwide LLC, No. CV_16-7316-DMG (Ksx), 2018 WL
6829122 (C.D.Cal. Dec. 27, 2018) (dismissing manufacturing defect claim with prejudice as
preempted); Shelp v. Allergan, Inc., C18-1427-JCC, 2018 WL 6694287 (W.D.Wash. Dec. 20,
2018) (dismissing all of plaintiffs’ claims against Mentor as expressly preempted and with
prejudice); Laux v. Mentor Worldwide, LLC, No. 2:16-cv-01026-ODW(AGR), 2017 WL
5186329, at *3-4 (C.D. Cal. Nov. 8, 2017) (granting defendant’s motion for summary judgment
on preemption in case involving saline implants); Clore v. Mentor Worldwide, LLC, No.

14

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4:17-cv-00003-CVE-TLW (N.D.Okla. April 7, 2017) (dismissing claims regarding saline
implants as preempted) (ECF No. 22-5); Malonzo v. Mentor Worldwide, LLC, No. C 14 01144
JSW, 2014 WL 2212235 (N.D. Cal. May 28, 2014) (same); Ford v. Mentor Worldwide, LLC, No.
2:13-cv-06317 (E.D. La. Dec. 17, 2013) (same) (ECF No. 22-6); Harris v. Mentor Worldwide
LLC, No. 12-cv-916 (E.D. Cal. Aug. 21, 2012) (same) (ECF No. 22-7); Herbert v. Mentor, No.
04-413 (MLC), 2007 WL 2893387, at *3-4 (D.N.J. Sept. 28, 2007) (granting summary judgment
on preemption grounds); Cottengim v. Mentor Corp., No. 05-161-DLB2007 WL 2782885, at *2-
5 (E.D. Ky. Sept. 24, 2007) (same).
C.
In Pro Se Plaintiff's Motion to Strike Defendant’s Opposition to Plaintiff's Motion for
Judgment on the Pleadings, Plaintiff alleges that Defendant and Defense counsel “feel entitled to
have Plaintiff Jessica Williams’ case dismissed because these other basic, most likely bribed, and
definitely biased courts dismissed six recent cases” against Defendant. ECF No. 47 at PageID #:
527. The Court agrees with Defendant that this impertinent and scandalous allegation of
unethical and criminal conduct by Defendant, Defense counsel and/or various state and federal
judges, is unacceptable. ECF No. 48 at PageID #: 547.
Plaintiff is required to comply with Fed. R. Civ. P. 11. “By its own terms, Rule 11
applies to pro se litigants as well as to attorneys.” Weiler v. IRS, No. 1:17CV2226, 2019 WL
2331763, at *3 (N.D. Ohio May 14, 2019) (Baughman, M.J.), report and recommendation
adopted, 2019 WL 2346915 (N.D. Ohio May 31, 2019) (Nugent, J.). “The Rule 11 standard
‘takes into account the special circumstances that often arise in pro se situations[. But] pro se

15

(4:18CV0899)
filings do not serve as an impenetrable shield, for one acting pro se has no license to harass
others, clog the judicial machinery with meritless litigation, and abuse already overloaded court
dockets.’” In re Polyurethane Foam Antitrust Litig., 165 F. Supp.3d 664, 666 (N.D. Ohio 2015)
(quoting Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir.1988)) (Zouhary, J.).
Accordingly, Pro Se Plaintiff's Motion to Strike Defendant’s Opposition to Plaintiff's
Motion for Judgment on the Pleadings (ECF No. 47) is stricken from the record. See, e.g., Bletas
v. Deluca, No. 11 Civ. 1777, 2011 WL 13130879, at *11-13 (S.D.N.Y. Nov. 15, 2011) (pro se
plaintiff alleging defendants “‘possibly’ bribed” the judge was sanctioned under Rule 11); Kelly
yv. City of Topeka, Street Maintenance, No. 97-4079-SAC, 1998 WL 1054225, at *1 (D. Kan.
Dec. 4, 1998) (pro se plaintiff's unfounded accusation that the court accepted a bribe in exchange
for granting defendant’s motion for summary judgment “borders on contempt”); Davis v. TRM
Copy Centers, Corp., No. 88 C 0990, 1988 WL 92921, at *1-3 (N.D. Ill. Aug. 16, 1988) (striking
paper filed by pro se plaintiff that accused judge of racism and taking bribes as impertinent and
scandalous under Rule 12(f) and referring plaintiff for Rule 11 sanctions).
V. Conclusion
Defendant Mentor Worldwide LLC’s Motion to Dismiss Plaintiff's Amended
Complaint (ECF No. 22) is granted;
Pro Se Plaintiff Jessica Williams’ Motion to Strike Defendant’s Notice of
Supplemental Authority (ECF No. 43) is denied;
Pro Se Plaintiffs Motion for Judgment on the Pleadings (ECF No. 45) is denied
as moot;
Pro Se Plaintiff's Motion to Strike Defendant’s Opposition to Plaintiff's Motion
for Judgment on the Pleadings (ECF No. 47) is stricken;

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Defendant’s Motion to Strike Under Rule 12(f) (ECF No. 48) is granted; and,
Pro Se Plaintiff’s Motions to Strike Defendant’s Motion to Strike Under Rule
12(f) and “to Strike Defendant’s Opposition to Strike Plaintiff Jessica Williams’
Motion to Strike Plaintiff’s Motion for Judgment on the Pleadings” (ECF No. 49)
is denied as moot.
IT IS SO ORDERED.

September 30, 2019 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367557. Public record. Not legal advice.