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Johnson v. Karr

United States District Court, N.D. Texas, Dallas Division

May 31, 2017

JANET KARR, d/b/a KARR CATS CATTERY, Defendant-Third-Party Plaintiff,
DR. DAVID KAHN, et al., Third-Party Defendants.



         Third-party 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.


         This is 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[1], alleging claims for negligence and negligent misrepresentation in connection with their treatment of “Dallas” for ringworm.


         The court turns first to Dr. Kahn's motion to dismiss, to which Karr has not responded.


         Before 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.

         “When 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.


         In 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).


         In her third-party complaint, Karr asserts a negligence claim against Dr. Kahn.[2] 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.

         Kahn and Animal Medical Center of Richardson, ” id. ¶ 10. In support of her negligence cause of action, Karr alleges:

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 veterinarians.

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 ...

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