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Sheptin v. Lifewatch Services, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 13, 2015



THOMAS M. DURKIN, District Judge.

Pro se plaintiff Louis Sheptin alleges that defendants LifeWatch Services, Inc. ("LifeWatch") and Rafi Heumann, its CEO, manufactured and distributed defective heart monitors that failed to detect cardiac abnormalities that resulted in Sheptin's heart attack. R. 24. The defendants have moved to dismiss Sheptin's complaint for lack of subject matter jurisdiction, failure to state a claim, and forum non conveniens, and to strike certain portions of his complaint. R. 46; R. 49.[1] For the following reasons, the Court grants the defendants' motion in part, and denies it in part.


A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the Court's subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). "The standard of review for a Rule 12(b)(1) motion to dismiss depends on the purpose of the motion." Bolden v. Wells Fargo Bank, N.A., No. 14 C 403, 2014 WL 6461690, at *2 (N.D. Ill. Nov. 18, 2014) (citing Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009)). "If a defendant challenges the sufficiency of the allegations regarding subject matter jurisdiction (a facial challenge), the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiffs favor." Bolden, 2014 WL 6461690, at *2 (citing United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003)). A factual challenge to the court's subject matter jurisdiction, on the other hand, is based on the assertion that "the complaint is formally sufficient but... there is in fact no subject matter jurisdiction." United Phosphorus, 322 F.3d at 946 (emphasis in original). When considering a factual challenge to the court's jurisdiction, "[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008). "Where jurisdiction is in question, the party asserting a right to a federal forum has the burden of proof, regardless of who raised the jurisdictional challenge." Craig v. Ontario Corp., 543 F.3d 872, 876 (7th Cir. 2008).

A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.


LifeWatch manufactures and distributes cardiac monitoring devices and provides cardiac monitoring services. R. 24 ¶¶ 9, 49. At the recommendation of his physicians, Sheptin enrolled in two 30-day LifeWatch "cardiac surveillance program[s]." Id. ¶¶ 6, 10. Notwithstanding statements on LifeWatch's website that "patients will receive 24-hour attended monitoring per 30 day period, " his first cardiac surveillance program lasted only 21 days (from June 27, 2011 to July 17, 2011). Id. ¶ 7.

On May 15, 2013, Sheptin was seen by doctors at the UCSD-Sulpizo Cardio Clinic for "life-threatening cardiac arrhythmias." Id. ¶ 10. At that time, Sheptin's physicians recommended a second 30-day LifeWatch cardiac surveillance program. Id. Sheptin received a "King of Hearts" cardiac monitor from LifeWatch on May 21, 2013. Id. ¶ 11. The monitor malfunctioned two days later, displaying error code "E009." Id. ¶ 12. Sheptin called LifeWatch and was told that the company was "having problems with the King of Hearts." Id. At LifeWatch's suggestion, Sheptin mailed the defective heart monitor back to LifeWatch in exchange for a replacement. Id. ¶¶ 12-13. A replacement "King of Hearts" monitor arrived on May 29 or 30, 2013. Id. ¶ 14. This monitor malfunctioned on June 2, 2013, displaying the same error code as the previous monitor ("E009"). Id. ¶ 15. At that time, Sheptin contacted Cynthia Benson at the Food and Drug Administration ("FDA"), who told him that the FDA had issued a "Warning Letter" to LifeWatch in December 2012. Id. ¶ 16. According to the letter, an FDA inspection revealed that LifeWatch's monitors were "adulterated" as defined by FDA regulations. Id. ¶¶ 15-16; see also id. at 11-15 (Warning Letter, dated December 17, 2012, Ex. C to Am. Compl.). That same day, June 2, 2013, Sheptin called LifeWatch and was told by a "Ms. Keys" that LifeWatch was "having problems with those devices[, ] you should contact your doctor to upgrade." Id. ¶ 18. Sheptin returned the second defective monitor to LifeWatch on June 3, 2013. Id. ¶ 19. At some point around this time frame, Sheptin contacted other FDA officials who confirmed that LifeWatch's devices were not FDA approved and that the "technology was questionable." Id. ¶¶ 20-23.

Sheptin received a third monitor from LifeWatch on June 6 or 7, 2013. Id. ¶ 24. On June 15, 2013, the third heart monitor also malfunctioned, displaying the same error code ("E009") as the first two defective monitors. Id. ¶ 28. Sheptin called LifeWatch to notify the company that his third heart monitor was also defective, and that he intended to file (or had already filed) complaints against LifeWatch with federal agencies. Id. ¶¶ 29, 32. Sheptin shipped the third defective monitor back to LifeWatch, and awaited the promised delivery of a fourth device. Id. ¶¶ 32-33. LifeWatch cancelled that delivery mid-shipment. Id. ¶ 34.

Sheptin suffered a heart attack and had angioplasty surgery on August 27, 2013. Id. ¶ 40. Sheptin alleges that LifeWatch's defective devices failed to detect a "cardiac T-wave abnormality, " which if detected sooner would have prevented the heart attack. Id. (alleging that the abnormality was "discovered too late"). His complaint asserts claims against LifeWatch and Heumann for breach of contract (based upon their failure to provide a 30-day monitoring period, as advertised on their website), products liability, medical malpractice, and violation of the "Consumer Protection Act." Id. ¶¶ 49-55. Sheptin seeks $500, 000 in compensatory damages and $300, 000 in punitive damages. Id. at 7.


I. Diversity Jurisdiction

The defendants argue that Sheptin has not sufficiently alleged diversity jurisdiction because he has not: (1) provided "independent verification" that his claim exceeds $75, 000; and (2) alleged LifeWatch's state of incorporation. See R. 47 at 5-6. With respect to the jurisdictional minimum, the defendants argue that Sheptin "should be required to independently verify that his claim exceeds" $75, 000 because he "has filed numerous lawsuits in federal court alleging injury to his heart." Id. at 5. The defendants have not cited any legal authority for this novel requirement. Sheptin states in his complaint that he seeks $500, 000 in damages, which satisfies the jurisdictional minimum unless it is "legally impossible" for him to recover that amount. Grinnell Mut. Reinsurance Co. v. Haight, 697 F.3d 582, 585 (7th Cir. 2012). The fact that Sheptin has alleged injuries to his heart in other lawsuits does not make it legally impossible for him to recover more than $75, 000 in this lawsuit.

The defendants are correct, however, that Sheptin must allege LifeWatch's state of incorporation. "Corporations are persons with two citizenships, which 28 U.S.C. § 1332(c)(1) specifies as the jurisdiction of incorporation plus the principal place of business." Fellowes, Inc. v. Changzhou Xinrui Fellowes Office Equip. Co. Ltd., 759 F.3d 787, 788 (7th Cir. 2014). Sheptin, a citizen of California, alleges only that LifeWatch's principal place of business is in Rosemont, Illinois. R. 24 ¶ 2. It appears, however, that this is a pleading defect only, as the fact that Delaware is LifeWatch's state of incorporation is publically available information.[2] The Court notes that Sheptin has also not alleged Heumann's citizenship. See Evergreen Square of Cudahy v. Wis. Hous. and Econ. Dev. Auth., 776 F.3d 463, 465 (7th Cir. 2015) ("[F]ederal courts are ...

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