CINDY K. JORGENSON, District Judge.
Pending before the Court are the Motions to Dismiss (Docs. 7 and 12) filed by Defendants and the Motion for Rule 56(d) Relief (Doc. 10) filed by Plaintiff.
I. Procedural Background
On March 1, 2013, Plaintiff Jeffrey Poll ("Poll") filed a Complaint in the Pima County Superior Court alleging claims of strict liability, breach of express warranty, implied warranty, negligence, products liability failure to warn, and products liability defective design against Stryker Sustainability Solutions, Inc., Stryker Sales Corporation, Stryker Corporation and Howmedica Osteonics Corporation (collectively, "Howmedica" or "Defendants"). On June 6, 2013, Howmedica removed the action to this Court.
On June 13, 2013, Howmedica filed a Motion to Dismiss as to the original complaint. A response and a reply have been filed.
On July 8, 2013, Poll filed an Amended Complaint. The Amended Complaint alleges claims of strict liability, breach of express warranty, implied warranty, negligent failure to warn, products liability failure to warn, and products liability defective design against Defendants. Poll alleges he was damaged as a direct and proximate result of Howmedica's wrongful conduct in connection with the Cormet Cup and Cormet Head (collectively, the "Cormet System"), a Class III medical device under the Federal Food, Drug, and Cosmetic Act of 1938 ("FDCA"). Howmedica is alleged to have entered into a marketing and distribution agreement to market and sell the Cormet System. Howmedica is alleged to have received approval from the Food & Drug Administration ("FDA") to market the Cormet System after completing a Pre-Market Approval ("PMA") process. As discussed infra, Poll alleges Howmedica's failure to advise the FD. relevant adverse consequences of the Cormet System which has resulted in Poll's injuries/damages.
Poll also filed a Motion for Rule 56(d) Relief on July 8, 2013. A response and a reply have been filed.
On July 25, 2013, Howmedica filed a Motion to Dismiss as to the Amended Complaint. A response and a reply have been filed.
II. June 13, 2013 Motion to Dismiss (Doc. 7)
Poll asserts this motion is moot because an Amended Complaint has been filed. Howmedica does not dispute this assertion - in its Response to the Motion for Rule 56(d) Relief, Howmedica specifically acknowledges this motion is moot. The Court will deny this motion as moot.
III. Motion for Rule 56(d) Relief (Doc. 10)
Poll asserts Howmedica converted its June 13, 2013, Motion to Dismiss into a motion for summary judgment because it cited to and relied on materials and facts outside of the Complaint and not yet adduced in discovery. Howmedica asserts that, as Poll filed this motion as to the original Motion to Dismiss, it is now mooted as is the original Motion to Dismiss. In his reply, Poll does not dispute this, but asserts that the July 25, 2013, Motion to Dismiss has similarly been converted into a summary judgment motion. Poll asserts, therefore, the procedures of Fed.R.Civ.P. 56 permit the Court discretion to permit discovery.
While the Court agrees with Howmedica that the motion is mooted by the filing of the Amended Complaint and the July 25, 2013, Motion to Dismiss, the Court finds it appropriate to consider whether the Motion to Dismiss has been converted into a summary judgment motion based on reliance of additional documents pursuant to Fed.R.Civ.P. 12(d) and whether relief pursuant to Fed.R.Civ.P. 56(d) is appropriate.
The applicable rule governing dismissal motions states:
Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed.R.Civ.P. 12(d). However, a court "may take judicial notice of matters of public record' and consider them without converting a Rule 12 motion into one for summary judgment." United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008) ( citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)).
In its July 25, 2013, Motion to Dismiss, Howmedica has attached, cited to, and referred to a complaint filed in the Supreme Court of the State of New York, the Cormet System approval letter, the Cormet System Summary of Safety and Effectiveness, the Cormet System labeling and instructions for use, and the Cormet System supplemental PMA approvals. Judicial notice may be taken of documents on file in federal or state court. Harris v. County of Orange, 682 F.3d 1126, ...