Watson v. Mylan Pharmaceuticals, Inc.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         Pro se 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”).^[1] 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.)

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         The 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.

         II. LEGAL STANDARDS

         On a 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 Cir. 1991).

         III. DISCUSSION

         Before 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 order.

         A. Motion for Default Judgment

         Plaintiff 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. Fed.R.Civ.P. 55.

         Executive 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.

         B. ...