Edwards v. Thermigen LLC

• Court: District Court, N.D. California
• Decided: January 20, 2022
• Docket: 3:21-cv-01828
• Status: Unknown

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 FERNANDO EDWARDS, Case No. 21-cv-01828-SBA

6 Plaintiff, ORDER DENYING DEFENDANT THERMIGEN, LLC’S MOTION TO 7 v. DISMISS

8 THERMIGEN LLC, et al., Dkt. 34 Defendants. 9

10 Plaintiff Fernando Anthony Edwards (“Plaintiff”) brings the instant action against 11 Defendant ThermiGen, LLC (“ThermiGen”) and SpineSmith Holdings, LLC 12 (“SpineSmith”) d/b/a Celling Biosciences (“Celling Biosciences”). Presently before the 13 Court is Thermigen’s motion to dismiss pursuant to Federal Rule of Civil Procedure 14 12(b)(4), (b)(5), and (b)(6). Having read and considered the papers filed in connection 15 with this matter and being fully informed, the Court hereby DENIES Thermigen’s motion, 16 for the reasons stated below. The Court, in its discretion, finds this matter suitable for 17 resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b). 18 I. BACKGROUND 19 A. FACTUAL ALLEGATIONS 20 The factual allegations in the Complaint are rather sparse. See Compl. ¶¶ 8-12, 21 Dkt. 1. Plaintiff is the “Administrator of Medical Office of Sharon de Edwards, MD 22 FACOG NCMP, Inc.” (the “Medical Office”). Id. ¶ 1. Thermigen marketed and sold a 23 medical device under the tradename “ThermiVa” (the “Device”) “for the purpose of 24 treating the Medical Office patients[’] sexual and libido conditions.” Id. ¶ 8. The Device 25 was sold as “FDA approved to minimize vaginal laxity, to eliminate vaginal atrophy, and 26 to improve vaginal vascularity to facilitate sexual arousal and penetration.” Id. However, 27 according to Plaintiff, the Device did not work as advertised and was never, in fact, 1 Plaintiff alleges that, in representing that the Device was FDA approved for the 2 purposes advertised, ThermiGen engaged in “deliberate misrepresentation” to sell him a 3 “useless device” for a sum of $100,579.92. Id. ¶ 10. He further alleges that ThermiGen’s 4 misrepresentation in the sale of the Device exposed the Physician at the Medical Office to 5 risk of professional malpractice for using the Device as advertised. Id. ¶ 12. Finally, 6 according to Plaintiff, Celling Biosciences, “as successor corporation to [ThermiGen], is 7 wholly liable for the false advertisement and all damages arising thereunder.” Id. 8 B. PROCEDURAL HISTORY 9 On March 12, 2021, Plaintiff filed a Complaint, alleging causes of action for: 10 (1) Unlawful Business Practices under California Business and Professions Code § 17200 11 et seq. (for financial abuse of an elder in violation of California Welfare and Institutions 12 Code § 15600); (2) Unfair Business Practices under § 17200 et seq. (for immoral, 13 unethical, oppressive, and unscrupulous conduct); (3) Fraudulent Business Practices under 14 § 17200 et seq.; (4) False Advertisement under California Business and Professions Code 15 § 17500; (5) Deceit; and (6) Negligent Infliction of Emotional Distress. Dkt. 1. 16 Thereafter, Thermigen filed the instant motion to dismiss the Complaint pursuant to 17 Federal Rule of Civil Procedure Rule 12(b)(4), (b)(5), and (b)(6), arguing, alternatively, 18 that (1) the action should be dismissed for insufficient process and/or insufficient service 19 of process; and (2) the Complaint fails to state a claim. Dkt. 34 (“Mot.”). Plaintiff timely 20 filed an opposition to the motion. Dkt. 35 (“Opp’n”). Thermigen did not file a reply. 21 II. DISCUSSION 22 As stated above, Thermigen moves to dismiss on the grounds of: (1) insufficient 23 process and/or insufficient service of process; and (2) failure to state a claim. The Court 24 addresses these issues in turn. 25 A. INSUFFICIENT PROCESS AND/OR INSUFFICIENT SERVICE OF PROCESS 26 A defendant may move to dismiss an action for insufficient process and/or 27 insufficient service of process. Fed. R. Civ. P. 12(b)(4), (b)(5). An objection under Rule 1 Thus, a Rule 12(b)(4) motion is the proper vehicle for challenging noncompliance with the 2 provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals 3 with the content of the summons. Wasson v. Riverside Cty., 237 F.R.D. 423, 424 (C.D. 4 Cal. 2006) (quoting 5A Wright & Miller, Federal Practice and Procedure, § 1353, pp. 334- 5 35 (3d ed. 2004)). A Rule 12(b)(5) motion, on the other hand, is the proper vehicle for 6 challenging the mode of delivery or lack of delivery of the summons and complaint. Id. 7 A plaintiff must serve a summons and a copy of the complaint in the manner and 8 within the time prescribed. Fed. R. Civ. P. 4(c)(1). Among other things, Rule 4 provides 9 that a summons must “be directed to the defendant.” Fed. R. Civ. P. 4(a)(1). “A 10 summons—or a copy of a summons that is addressed to multiple defendants—must be 11 issued for each defendant to be served.” Fed. R. Civ. P. 4(b). “Unless service is waived, 12 proof of service must be made to the court.” Fed. R. Civ. P. 4(l)(1). “If a defendant is not 13 served within 90 days after the complaint is filed, the court—on motion or on its own after 14 notice to the plaintiff—must dismiss the action without prejudice against that defendant or 15 order that service be made within a specified time.” Fed. R. Civ. P. 4(m). 16 Thermigen contends it has not been properly served. Specifically, Thermigen 17 asserts that Plaintiff served only “Celling Biosciences, Inc.” Mot. at 5. In support of this 18 assertion, Thermigen submits the Declaration of Steve Melchiode (“Mr. Melchiode”), the 19 President of SpineSmith Holdings, LLC dba Celling Biosciences. Dkt. 34-2 ¶ 1. Mr. 20 Melchiode avers that a summons addressed to Celling Biosciences, Inc. and a copy of the 21 Complaint were served on him on June 22, 2021. Id. ¶ 2. Thermigen also notes that the 22 Complaint was served more than one hundred days after it was filed. Thermigen thus 23 argues that service was untimely. It concludes that, “[d]ue to [Plaintiff’s] repeated and 24 willful violations of Rule 4,” his claims against Thermigen should be dismissed. Mot. at 5. 25 The Court notes that a summons has not been issued in Thermigen’s name; rather, 26 the only summons issued names “Celling Biosciences, Inc.” Dkt. 3. SpineSmith dba 27 Celling Biosciences is the owner of Thermigen’s parent company, Celling Aesthetics, 1 “[d]ismissals for defects in the form of summons are generally disfavored.” U.S.A. 2 Nutrasource, Inc. v. CNA Ins. Co., 140 F. Supp. 2d 1049, 1052 (N.D. Cal. 2001). “Such 3 defects are considered ‘technical’ and hence are not a ground for dismissal unless the 4 defendant demonstrates actual prejudice.” Id. at 1052-53 (quoting Chan v. Society 5 Expeditions Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)). Thermigen has not demonstrated 6 actual prejudice, and thus, the Court finds dismissal on this ground unwarranted. 7 Plaintiff acknowledges that the summons served on Thermigen named only Celling 8 Biosciences, Inc. Opp’n at 2. To correct this issue, he subsequently sent Thermigen a 9 request for Waiver of Service of Summons. Id. By email, Thermigen’s counsel 10 acknowledged receipt of the Waiver of Service of Summons but declined to waive service. 11 Id. & Ex. 3. According to Plaintiff, Thermigen thus violated Rule 4(d). Id. at 2. For this 12 reason, Plaintiff asks the Court to “deem the Complaint served.” Id. Alternatively, he asks 13 that he be permitted to obtain an amended summons and tax Thermigen for all additional 14 costs in serving the amended summons and Complaint. Id. at 2-3. 15 Rule 4 provides that an individual, corporation, or association that is subject to 16 service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the 17 summons. Fed. R. Civ. P. 4(d)(1). A plaintiff may notify such a defendant that an action 18 has been commenced and request that the defendant waive service of summons. Id. If the 19 defendant fails, without good cause, to sign and return a waiver requested by a plaintiff, 20 the court must impose on the defendant the expenses later incurred in making service. 21 Fed. R. Civ. P. 4(d)(2). A defendant is not required to waive service under Rule 4(d), 22 however. See Al-Hizbullahi v. Bleisner, No. C 04-4903 MMC (PR), 2009 WL 1855234, 23 at *1-2 (N.D. Cal. June 29, 2009). Consequently, if a defendant declines to waive service, 24 the plaintiff must otherwise effectuate service in accordance with Rule 4. Id. 25 In view of the foregoing, the Court DENIES Thermigen’s motion to dismiss for 26 insufficient service and/or insufficient service of process. However, the Court cannot 27 simply “deem the Complaint served” based on Thermigen’s refusal to waive service. In its 1 service on Thermigen. If Thermigen, without good cause, declines to waive service, the 2 Court notes that it may be responsible for additional costs incurred to complete service. 3 B. FAILURE TO STATE A CLAIM 4 Thermigen also moves to dismiss the Complaint under Rule 12(b)(6), arguing that 5 Plaintiff lacks standing to prosecute the action because he did not purchase the Device. 6 Although Thermigen labels its motion as one for failure to state a claim, the motion 7 actually raises an objection under Rule 17. See Kinman v. Wells Fargo Bank, N.A., No. 8 2:12-CV-02853-MCE, 2013 WL 523092, at *2 (E.D. Cal. Feb. 11, 2013). 9 Rule 17(a)(1) provides that “[a]n action must be prosecuted in the name of the real 10 party in interest.” “The Court may not dismiss an action for failure to prosecute in the 11 name of the real party in interest until, after an objection, a reasonable time has been 12 allowed for the real party in interest to ratify, join, or be substituted into the action. After 13 ratification, joinder, or substitution, the action proceeds as if it had been originally 14 commenced by the real party in interest.” Fed. R. Civ. P. 17(a)(3). Rule 17 “is designed to 15 avoid forfeiture and injustice when an understandable mistake has been made in selecting 16 the party in whose name the action should be brought.” Goodman v. United States, 298 17 F.3d 1048, 1053 (9th Cir. 2002); see also Dunmore v. United States, 358 F.3d 1007, 1112 18 (9th Cir. 2004) (ratification allowed if the plaintiff’s conduct was not a strategic decision). 19 In a federal diversity action, such as this, whether a plaintiff is the real party in interest 20 under Rule 17 is determined by the substantive state law, in particular, “that portion of 21 state law from which the specific right being sued upon stems.” Allstate Ins. Co. v. 22 Hughes, 358 F.3d 1089, 1093-94 (9th Cir. 2004) (quotation marks and citation omitted). 23 Here, Thermigen notes that Plaintiff is the “Administrator” of the Medical Office. 24 Compl. ¶ 1. Although the Complaint also alleges that he is “the Purchaser” of the Device, 25 id., Thermigen directs the Court’s attention to the Purchase Agreement attached to the 26 Complaint. See Dkt. 1 at pp. 9-11 (“Purchase Agreement”). The Purchase Agreement 27 provides that “Federal (USA) law restricts (and state law may restrict) this medical device 1 which this medical device is used or ordered (a ‘Prescribing Practitioner’).” Id. at 1. In at 2 least three places, the Purchase Agreement lists “Sharon de Edwards, MD OB/GYN” as 3 the party to bill. Id. at 1, 2, 3. The executed portion of the Purchase Agreement lists the 4 “Company” as “Sharon de Edwards, MD OB/GYN” and the “Physician” as “Sharon de 5 Edwards, MD.” Id. at 2. Plaintiff is listed only as the “Contact.” Id. The Purchase 6 Agreement, which requires the signature of a “Physician” or “Authorized Officer,” is 7 signed by Plaintiff. Id. A note below the signature line states: “If purchasing in the 8 business name, please make sure purchase order is signed by authorized representative of 9 the company.” Id. Lastly, in addition to alleging the loss of funds spent to purchase the 10 Device, the Complaint alleges that Defendants’ misrepresentations “exposed the Physician 11 at the Medical Office administered by Plaintiff to risk of professional malpractice action 12 for using the device as advertised.” Compl. ¶ 12. 13 Without any reference to or discussion of the substantive state law, Thermigen 14 argues that Plaintiff “fails to state claims for unlawful business practices, unfair business 15 practices, fraudulent business practices, false advertisement, deceit, and negligent 16 infliction of emotional distress for the purchase of a device he did not purchase.” Mot. at 17 7. Plaintiff responds simply that he did, in fact, purchase the Device for his wife, Sharon 18 de Edwards. Opp’n at 4. In support of this assertion, he cites the Declaration of Sharon de 19 Edwards MD FACOP NCMP, which was filed in support of Plaintiff’s opposition to 20 SpineSmith’s motion to dismiss. Dkt. 22 at pp. 13-16. Sharon de Edwards MD states that 21 “[her] spouse, Fernando Anthony Edwards[,] purchased the ThermiVA medical device as a 22 gift for [her] to complement [her] medical practice of Women Care.” Id. ¶ 1. Neither the 23 opposition nor the declaration explicitly states whether Plaintiff purchased the Device in 24 his individual capacity using his own funds or as the Administrator of the Medical Office 25 using its funds. Thermigen presents no evidence as to who paid for the Device. 26 In view of the foregoing, the Court DENIES Thermigen’s motion to dismiss for 27 failure to state a claim. As a threshold matter, dismissal for failure to prosecute in the 1 real party in interest has been allowed to ratify, join, or be substituted into the action. 2 || Moreover, Thermigen fails to address the substantive state law governing the causes of 3 || action alleged, and thus, fails to show that Plaintiff is not the real party in interest. 4 || Nevertheless, factual and legal questions remain as to whether Plaintiff is the real party in 5 || interest. Although the Complaint alleges that Plaintiff is “the Purchaser” of the Device, the 6 || Purchase Agreement—attached to the Complaint—appears to show that he acted only as 7 || the authorized representative of the Medical Office. If the Medical Office purchased the 8 || Device, it may be the real party in interest. Accordingly, the instant motion is denied 9 || without prejudice to renewal of Thermigen’s objection under Rule 17 for failure to 10 || prosecute in the name of the real party in interest. 11 || WL. CONCLUSION For the reasons stated above, IT IS HEREBY ORDERED THAT Thermigen’s 5 13 || motion to dismiss is DENIED. The motion is denied without prejudice to renewal of S 14 || Thermigen’s Rule 17 objection for failure to prosecute in the name of the real party in 3 15 || interest. As stated above, Plaintiff shall complete service on Thermigen within 30 days of a 16 || the date this Order is entered. If Thermigen, without good cause, declines to waive

17 || service, it may be responsible for additional costs incurred to complete service. 18 IT IS SO ORDERED. 19 || Dated: January 20, 2022 20 Andie 13 Gamabing.' 21 Richard Seeborg for Saundra B. Armstron 22 United States District Judge 23 24 25 26 27 28