United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
defendant David Kahn, DVM (“Dr. Kahn”) moves to
dismiss defendant-third-party plaintiff Janet Karr's
(“Karr's”) action under Fed.R.Civ.P.
12(b)(6). Plaintiff Denise Johnson (“Johnson”)
moves to strike Karr's first amended answer. Karr opposes
Johnson's motion to strike, and she moves in her response
for leave to file her amended answer. For the reasons that
follow, the court grants Dr. Kahn's motion to dismiss,
but also grants Johnson leave to replead. And it grants
Johnson's motion to strike, but also grants Karr leave to
file her amended answer.
an action by Johnson against Karr alleging that Karr is
liable on claims for breach of warranty, negligence, and
violation of the Texas Deceptive Trade Practices-Consumer
Protection Act, Tex. Bus. & Com. Code Ann. § 17.41
et seq. (West 2011). Johnson asserts that Karr, an
experienced cat owner and breeder, knew or should have known
that “Dallas, ” the kitten she sold to Johnson,
was infected with ringworm. Karr, as third-party plaintiff,
brings a third-party action against Dr. Kahn and two other
third-party defendants, alleging claims for negligence and
negligent misrepresentation in connection with their
treatment of “Dallas” for ringworm.
court turns first to Dr. Kahn's motion to dismiss, to
which Karr has not responded.
deciding the motion, the court addresses sua sponte
whether Dr. Kahn's March 6, 2017 motion to dismiss, which
is addressed to Karr's third-party complaint, filed
January 20, 2017, has been mooted by Karr's filing on
March 24, 2017 of a first amended third-party complaint. The
court holds that it has not been mooted, because the first
amended third-party complaint was improperly filed without
leave of court and can be disregarded.
a party moves to amend his complaint, he must do so in a
procedurally proper manner by complying with applicable rules
of procedure.” Lefevre v. Connextions, Inc.,
2014 WL 1390861, at *2 (N.D. Tex. Apr. 10, 2014) (Fitzwater,
C.J.) (quoting Tealer v. Martinez, 2005 WL 1214707,
at *1 (N.D. Tex. May 23, 2005) (Ramirez, J.)). Under Rule
15(a), a party may amend its pleading once as a matter of
course within 21 days after serving it, but “[i]n all
other cases, a party may amend its pleading only with the
opposing party's written consent or the court's
leave.” Karr did not seek leave before filing her
amended third party complaint, and it does not appear that
she obtained the opposing parties' written consent.
Accordingly, the court in deciding Dr. Kahn's motion to
dismiss will disregard Karr's improperly-filed first
amended third-party complaint and address the sufficiency of
her third-party complaint.
deciding a Rule 12(b)(6) motion, the court evaluates the
sufficiency of the third-party complaint “by accepting
all well-pleaded facts as true, viewing them in the light
most favorable to the [third-party] plaintiff.”
Bramlett v. Med. Protective Co. of Fort Wayne, Ind.,
855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.)
(brackets omitted) (quoting In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007)). “The
court's review [of a Rule 12(b)(6) motion] is limited to
the [third-party] complaint, any documents attached to the
[third-party] complaint, and any documents attached to the
motion to dismiss that are central to the claim and
referenced by the [third-party] complaint.” Lone
Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d
383, 387 (5th Cir. 2010). To survive Dr. Kahn's motion,
Karr's third-party complaint must allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant[s] [are]
liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “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.”
Id.; see also Twombly, 550 U.S. at 555
(“Factual allegations must be enough to raise a right
to relief above the speculative level[.]”).
“[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
‘shown'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (brackets
omitted) (quoting Rule 8(a)(2)). Furthermore, under Rule
8(a)(2), a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Although “the pleading standard Rule
8 announces does not require ‘detailed factual
allegations, '” it demands more than
“‘labels and conclusions.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). And “‘a formulaic recitation of
the elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
third-party complaint, Karr asserts a negligence claim
against Dr. Kahn. But she does not plausibly allege any
facts that would permit the court to reasonably infer that
Dr. Kahn acted negligently. Karr alleges that “[t]he
treating veterinarian, [Dr. Kahn], diagnosed Dallas with
ringworm, prescribed Terbinafine to be given for 7 days, and
recommended that Dallas be reevaluated 28 days after
diagnosis, ” 3d Party Compl. ¶ 9, and that
“Karr began the ringworm treatment at the instruction
and under the supervision of Dr.
and Animal Medical Center of Richardson, ” id.
¶ 10. In support of her negligence cause of action, Karr
As licensed veterinarians, Third-Party Defendants had a duty
to Karr to examine, evaluate, diagnose, and treat
Dallas's ringworm consistent with the applicable standard
of care in the veterinarian practice. To the extent the
finder of fact finds that Dallas was not free of ringworm on
December 3-4, 2015, or that some standard of care was not met
in diagnosing, treating, or assessing Dallas's ringworm
condition, Third-Party Defendants are liable to Plaintiff for
breach of their professional duties as licensed
Id. ¶ 18. Karr has failed to plausibly allege,
however, that in treating “Dallas” for ringworm,
Dr. Kahn acted negligently or breached any standard of care.
As Dr. Kahn argues in his motion to dismiss, “[t]here
is no allegation that Dr. Kahn performed the reevaluation,
misdiagnosed ringworm (especially since ringworm is the
complained of disease), or somehow failed to inform [Karr] or
[Johnson] that ‘Dallas' had ringworm.” D.
Kahn Br. 2. Because Karr has failed to plausibly allege that
Dr. Kahn acted negligently in his diagnosis ...