United States District Court, W.D. Washington, Seattle
JERMAINE D. DOSS, Plaintiff,
JANSSEN PHARMACEUTICAL, INC., and JOHNSON & JOHNSON CORPORATION, Defendants.
ORDER GRANTING MOTION TO DISMISS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Johnson & Johnson and
Janssen Research and Development, LLC's Motion to Dismiss
(“Defendants' Motion”). Dkt. #37.
Plaintiff's Amended Complaint (“Complaint”)
alleges that a drug “manufactured, distributed,
promoted and sold” by Defendants caused him to suffer
serious side effects that were known to Defendants but not
disclosed to Plaintiff. See generally, Dkt. #30.
Defendants make several arguments supporting dismissal of
Plaintiff's Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Dkt. #37. Specifically, Defendants argue
that Plaintiff impermissibly utilizes group pleading to
allege all his claims against both Defendants, omits
necessary factual allegations supporting his claims, includes
legal claims preempted by Washington law, inexplicably relies
on inapplicable California law, and does not adequately plead
any claims that may otherwise remain. See generally,
after Defendants' Motion was filed, Plaintiff sought an
extension of time to file a response because of the
“plethora of legal defenses” raised. Dkt. #38 at
2. Plaintiff indicated that he had been performing legal
research and understood the requirements for adequately
responding to Defendants' Motion. Id. Plaintiff
specifically requested an “extension of time until the
5th day of July, 2019” to file a response. Id.
Defendants did not oppose the motion and the Court gave
Plaintiff until July 8 to respond. Dkts. #40 and #41.
Plaintiff did not respond.
Plaintiff filed, on July 3, 2019, a motion to appoint
counsel. Dkt. #42. This was the second time the Plaintiff
sought appointed counsel. Previously, the Court concluded
that this is not an exceptional case warranting appointed
counsel in a civil case and denied the request. Dkt. #22 at
2-3; United States ex. Rel. Gardner v. Madden, 352
F.2d 792, 793 (9th Cir. 1965). Plaintiff's second motion
to appoint counsel merely repeats many of the conclusory
allegations of the Complaint and argues that Plaintiff needs
counsel. Dkt. #42 at 3-7. But the Court does not find
Plaintiff's second motion any more compelling than the
glaringly, Plaintiff makes no attempt to respond to the
arguments in Defendants' Motion. Plaintiff knows of, and
in fact summarizes, the factual deficiencies that Defendants
argue plague his Complaint:
Plaintiff fails to allege when he was prescribed
Risperdal/risperidone; the diagnosis for which he was
prescribed Risperdal/risperidone; when he ingested
Risperdal/risperidone; the duration of time that he ingested
Risperdal/risperidone; when he began exhibiting symptoms of
any of the side effects that he alleges were caused by
Risperdal/risperidone; or, how the alleged actions of
[Defendants] caused his alleged injuries.
Id. at 5-6 (summarizing Dkt. #37 at 2-3). Yet
Plaintiff does nothing to demonstrate the merits of his
claims, assert that he can remedy the factual deficiencies,
or demonstrate why appointed counsel would aid him in
addressing the factual deficiencies.
importantly, Plaintiff entirely fails to substantively
respond to the arguments advanced in Defendants' Motion.
Pursuant to this Court's Local Civil Rules, failure to
respond to a motion, other than a motion for summary
judgment, “may be considered by the court as an
admission that the motion has merit.” LCR 7(b)(2). The
Court finds it appropriate to do so here and will dismiss the
Complaint without leave to amend.
having reviewed Defendants' Motion and the remainder of
the record, and for the reasons identified in Defendants'
Motion and this Order, the Court finds and ORDERS:
1. Johnson & Johnson and Janssen Research and
Development, LLC's Motion to Dismiss (Dkt. #37) is
2. Plaintiff's Motion for the Appointment of Counsel
(Dkt. #42) is DENIED as moot.
3. The claims Plaintiff asserts in his Amended Complaint
(Dkt. #30) are DISMISSED with prejudice.
4. This matter is CLOSED.
5. The Clerk shall send a copy of this Order to Plaintiff at
his last known mailing address. Dated this 23rd