Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Amacker v. Janssen Pharmaceutical

United States District Court, M.D. Louisiana

August 28, 2018

ALEXIS AMACKER
v.
JANSSEN PHARMACEUTICAL, ET AL.

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         REPORT AND RECOMMENDATION

         Plaintiff, Alexis Amacker (“Plaintiff”), proceeding pro se, filed a form Complaint for Civil Case against Janssen Pharmaceutical and Johnson & Johnson on July 10, 2018 (the “Original Complaint”). On August 10, 2018, and following an order granting Plaintiff leave to proceed in forma pauperis (“IFP”), [1] a hearing was held in this matter pursuant to Spears v. McCotter, [2] during which Plaintiff explained to the Court the basis of his claims. Following the hearing, Plaintiff was ordered to file an Amended Complaint setting forth the citizenship of the defendants, Janssen Pharmaceutical and Johnson & Johnson.[3] On August 22, 2018, Plaintiff filed an Amended Complaint.[4] For the reasons set forth herein, the undersigned RECOMMENDS that Plaintiff's suit be DISMISSED with prejudice.

         I. Background

         Per his Original Complaint, Plaintiff alleges that “I started taking Risperdal in 1993. While taking Risperdal, I was having dizziness, arm pains, leg pains, fluid around the heart, swollen glands, short of breath, leaking of the breast, swelling of the breast. I was diagnosed with gynecomastia.[5] I had breast tissue removed in each breast in 1997.”[6] Plaintiff further asserts that “Taking Risperdal really messed up my life. I [sic] cause a lot of harm to my body and led to a light heart attack and even led to surgery. It have me with low self esteem and a configured chest.

         I am asking the courts for 3 million dollars for damages and pain and suffering.”[7]

         II. Law and Analysis

         A. Standard for Dismissal Under 28 U.S.C. § 1915

         On July 12, 2018, Plaintiff was granted leave to proceed IFP.[8] Pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B), this Court is authorized to dismiss an action brought in forma pauperis if satisfied that the action is frivolous or malicious.[9] An in forma pauperis suit is properly dismissed as frivolous if the claim lacks an arguable basis in either fact or in law.[10] A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.”[11] The Fifth Circuit has stated three standards which a district court may use to determine whether a claim is frivolous. “The first requires a determination of whether the IFP complaint has a realistic chance of ultimate success. The second requires that the complaint have ‘arguable merit ... in terms of the arguable substance of the claim presented, both in law and in fact.' The third prohibits dismissal ‘unless the court is satisfied ‘beyond doubt' that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'”[12]

         B. Plaintiff Has Failed to Adequately Allege Federal Subject Matter Jurisdiction

         In his Original Complaint, Plaintiff alleges that this Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332.[13] Pursuant to 28 U.S.C. § 1332, “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between - (1) citizens of different States.”

         In his Original Complaint, Plaintiff alleges that he is a citizen of Louisiana and that Janssen Pharmaceutical is a New Jersey corporation with its principal place of business in New Jersey.[14]Because Plaintiff failed to allege the citizenship of Johnson & Johnson in his Original Complaint, Plaintiff was ordered to complete a form Amended Complaint setting out the citizenship of the parties.[15] Plaintiff filed an Amended Complaint on August 22, 2018 wherein he alleges that he is a citizen of Louisiana, that Johnson & Johnson is a Louisiana corporation with its principal place of business in New Jersey, and that Janssen Pharmaceutical is a Louisiana corporation with its principal place of business in New Jersey.[16] Plaintiff's allegation regarding the citizenship of Janssen Pharmaceutical contradicts his allegation as set forth in the Original Complaint. In any event, neither Plaintiff's Original nor his Amended Complaint adequately alleges complete diversity necessary to sustain jurisdiction pursuant to 28 U.S.C. § 1332.[17] However, even if Plaintiff could establish subject matter jurisdiction, dismissal would still be warranted.[18]

         C. Plaintiff's Claims Are Prescribed

         “Claims brought under the LPLA [the Louisiana Products Liability Act] are governed by the one year prescriptive period for delictual actions in Article 3492 which provides in pertinent part: ‘Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.'”[19] “Although prescription begins to run from the day injury or damage is sustained, damage is considered to have been sustained only when it has manifested itself with sufficient certainty to support accrual of a cause of action.”[20] “In cases where injury or damage is not immediately apparent, prescription does not begin to run until a reasonable plaintiff would become aware of the connection between [the] condition and the defendant's alleged tortious actions, that is, until the plaintiff knows or should reasonably know that [he] has suffered damages.”[21] “IFP claims that are time-barred are properly dismissed as frivolous….”[22]

         Per his Original Complaint, Plaintiff alleges that he “started taking Risperdal in 1993” and “had breast tissue removed in each breast in 1997.”[23] Based on the documents attached to Plaintiff's complaint, [24] Plaintiff's last dose of Risperdal was taken in 1995[25] and he had surgery in 1997 to reduce the size of his breasts.[26] There is a letter from a Louisiana attorney (Kevin Tauzin), dated April 25, 2015, stating that “Tauzin & Lorio do not represent you for any claim you may have versus Johnson & Johnson involving Risperdal.”[27] There is also what appears to be a retention letter between Plaintiff and Morgan & Morgan Complex Litigation Group (“M&M”) which Plaintiff looks to have signed on February 9, 2017 wherein M&M “will provide legal services to Alexis Amacker…with respect to product liability claims relating to injury/damages suffered as a result of your use of a product, pharmaceutical or medical device.”[28] Additionally, on February 19, 2016, Plaintiff filed suit against Johnson and Johnson in the United States District Court for the Northern District of California.[29] Although Plaintiff's Complaint in that suit is sealed, the California court dismissed the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.