Summary
refusing to dismiss fraud claims if they contain allegations of affirmative misrepresentations that go beyond a mere failure to warn
Summary of this case from Bell v. Boehringer Ingelheim Pharms., Inc.Opinion
Civil Action No. 14-1474
12-10-2015
REBECA CUTRUZZULA, Plaintiff, v. BAYER HEALTHCARE PHARMACEUTICALS INC., BAYER PHARMA AG and BAYER OY, Defendants.
United States Magistrate Judge Cynthia Reed Eddy MEMORANDUM ORDER MARK R. HORNAK, United States District Judge.
The present action was filed with this Court on October 29, 2014. The case was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with Magistrate Judges Act, 28 U.S.C. § 636(b)(1) and Local Rules of Court 72.C and 72.D.
Defendant Bayer Healthcare Pharmaceuticals Inc. submitted a motion to dismiss for failure to state a claim [ECF No. 20] on April 23, 2015. The Magistrate Judge's Report and Recommendation [ECF No. 28] filed November 17, 2015 recommended that the motion to dismiss filed on behalf of Defendant should be DENIED AS MOOT as to Counts II and III, GRANTED as to Counts IV and V, and DENIED as to Counts VII and VIII. Service of the Report and Recommendation was made on all parties. The parties were informed that in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2 they had until December 1, 2015 to file any objections. As of this date, no objections have been filed.
Accordingly, after a de novo review of the pleadings and documents in this case, together with the Report and Recommendation, the following Order is entered:
AND NOW, this 10TH day of December, 2015, IT IS HEREBY ORDERED that Defendant Bayer Healthcare Pharmaceuticals Inc.'s motion to dismiss for failure to state a claim [ECF No. 20] is DENIED AS MOOT as to Counts II and III, GRANTED as to Counts IV and V, and DENIED as to Counts VII and VIII. Defendant shall file an Answer to the remaining claims by January 12, 2016.
IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate Judge Cynthia Reed Eddy is hereby adopted as the Opinion of the District Court.
By the Court,
/s/_________
The Honorable Mark R. Hornak
United States District Judge cc: The Honorable Cynthia Reed Eddy
United States District Court
Western District of Pennsylvania
Counsel of record via CM-ECF