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Mitchell v. Proctor & Gamble

United States District Court for the Southern District of Ohio, Eastern Division

March 1, 2010, Decided; March 1, 2010, Filed

Case No. 2:09-CV-426




This matter is before the Court on Defendants, The Proctor & Gamble Company and AstraZeneca LP's (collectively "Defendants") Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 18.) For the reasons set forth below Defendants' Motion to Dismiss is GRANTED.


Defendants manufacture, market, and sale the over-the-counter drug Omeprazole, which consists of magnesium delayed-release tablets used to treat frequent heartburn. Defendants market this drug in the United States under the brand name Prilosec OTC. Prilosec OTC acts as a proton pump inhibitor  [*2] and decreases the amount of gastric acid produced by the stomach.

In 2008, Mitchell began to experience frequent incidents of heartburn. After failing to obtain relief from his symptoms by using traditional antacids, Mitchell consulted with his physician. On or about July 2, 2008, and upon the advice of his physician, Mitchell began daily to take Prilosec OTC.

On October 1, 2008, Mitchell attended a buffet-style dinner party after which he became ill. On October 2, 2008, Mitchell visited his physician with complaints of diarrhea, night sweats and fever. Mitchell's physician prescribed an antibiotic.

On May 29, 2009, Mitchell initiated the present class action in federal court. On September 1, 2009, Mitchell filed an Amended Complaint. On October 5, 2009, Defendants' Moved to Dismiss Mitchell's Amended Complaint.


A case may be dismissed if the complaint does not state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). "A motion to dismiss for failure to state a claim is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations." Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005).  [*3] Consequently, the Court must construe the complaint in the light most favorable to the non-moving party, accept all factual allegations as true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008); Murphy v. Sofamor Danek Gp., Inc., 123 F.3d 394, 400 (6th Cir. 1997). However, the Court is not required to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

Although liberal, the Rule 12(b)(6) standard requires more than the bare assertion of legal conclusions to survive a motion to dismiss. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). The complaint must "'give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)). While a complaint need not contain "detailed factual allegations," its "[f]actual  [*4] allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (2007). A complaint that suggests "the mere possibility of misconduct" is insufficient; rather, the complaint must state "a plausible claim for relief." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S at 556).

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2010 U.S. Dist. LEXIS 17956 *; 2010 WL 728222

THOMAS MITCHELL, on behalf of himself and all similarly situated persons, Plaintiff, v. PROCTOR & GAMBLE, et al., Defendant.


preempted, warranty