United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
plaintiff Carmen Naomi Watson, proceeding in forma pauperis,
brings this product liability action against defendants,
Mylan Pharmaceuticals, Inc., several related companies, and
two executives of Mylan N.V. (“Executive
Defendants”). Three corporate defendants and Executive
Defendants move to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), arguing that plaintiff's claims are
preempted, barred by claim preclusion, and inadequately
pleaded. (Docs. 17, 26.) Plaintiff moves to strike Executive
Defendants' motion to dismiss, for default judgment
against Executive Defendants, and both objects to and moves
to vacate the magistrate judge's order staying discovery.
(Docs. 29, 30, 31.)
FACTUAL AND PROCEDURAL BACKGROUND
alleges multiple claims against defendants including
failure-to-warn and failure-to-update, breach of express and
implied warranty, and negligence. Each of plaintiff's
claims are based on injuries allegedly resulting from her
2014 use of defendants' Amnesteem product, an
FDA-approved generic of the anti-acne drug Accutane.
filed a substantively similar state law failure-to-warn
action against defendants Mylan Pharmaceuticals, Inc. and
Mylan Inc. in the District of Kansas on June 21, 2016.
Watson v. Mylan Pharm., Inc., No. 16-2449-CM, 2016
WL 6996263, at *1 (D. Kan. Nov. 30, 2016). The court entered
judgment against plaintiff, dismissing her claims on the
basis of federal preemption, on November 30, 2016.
Id. at *5. Plaintiff appealed, and the Tenth Circuit
affirmed the court's judgment on July 13, 2017.
Watson v. Mylan Pharm., Inc., 701 Fed.Appx. 729,
730-31 (10th Cir. 2017). Plaintiff now alleges her injuries
have worsened and argues that she may pursue another claim
based on her same use of defendants' drug, under the
theory that defendants failed to update the warnings of their
generic drug. Plaintiff again claims against defendant Mylan
Pharmaceuticals, Inc., but now adds Executive Defendants and
multiple corporations affiliated with Mylan.
procedural history of both the previous case and the instant
action are quite similar. In the original action, plaintiff
opposed the magistrate judge's order staying discovery
and moved for default judgment against the defendants, though
the defendants had timely responded. Plaintiff again opposes
the magistrate judge's order staying discovery, again
moves for default judgment against defendants who have timely
responded, but now adds a motion to strike Executive
Defendants' motion to dismiss.
motion to dismiss under Rule 12(b)(6), the court assumes true
all well-pleaded facts in the complaint, disregards all legal
conclusions worded as factual allegations, and grants the
plaintiff all reasonable inferences from the pleadings.
Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th
Cir. 2012). To survive a motion to dismiss, the complaint
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face, ” not merely possible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Co. v. Twombly, 550 U.S. 544, 570 (2007)) (quotation
marks omitted); see Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). When a
plaintiff proceeds pro se, the court construes his or her
filings liberally, but does not assume the role of an
advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
proceeding to defendants' motions to dismiss under Rule
12(b)(6), the court will briefly resolve plaintiff's
multiple motions and objection to the magistrate judge's
Motion for Default Judgment
moves for default judgment against Executive Defendants,
arguing that Executive Defendants' motion to dismiss is
untimely. (Doc. 31.) Before proceeding to default judgment,
Rule 55 requires that a party “has failed to plead or
otherwise defend, ” and otherwise does not apply.
Defendants were never properly served with process, but
waived service on November 27, 2018. (Docs. 8-9.) After
waiving service, Executive Defendants were required to file
and serve an answer or Rule 12 motion within 60 days of their
waivers-on or by January 19, 2019. (Id.) Executive
Defendants filed their motion to dismiss (Doc. 26) on January
19, 2019, as required by the terms of their waivers, so have
not failed to plead or otherwise defend. Plaintiff's
motion for default judgment is therefore denied.