14-4271-cv Rodman v. Stryker Sales Corp.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is govern ed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serv e a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21 st day of May, two thousand fifteen.

PRESENT: J OSÉ A. C ABRANES
, R EENA R AGGI
, D ENNY C HIN , Circuit Judges

.

J EFFREY R ODMAN
,
Plaintiff-Appellant

,

v. No. 14-4271-cv

S TRYKER S ALES C ORPORATION
, S TRYKER C ORPORATION
, H OWMEDICA O STEONICS C ORP ., DBA S TRYKER O RTHOPAEDICS
,
Defendants-Appellees.

FOR PLAINTIFF-APPELLANT: Patrick W. Brophy, McMahon, Martine & Gallagher, LLP, Brooklyn, NY.

FOR DEFENDANTS-APPELLEES: Kim M. Catullo, Gibbons P.C., New York, NY.

Appeal from a judgment of the United Sta tes District Court for the Southern District of New York (Jesse M. Furman, Judge ).2 UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED

.
Plaintiff Jeffrey Rodman appeals from the District Court’s October 7, 2014 judgment dismissing his amended complaint, which raised various state law claims under diversity jurisdiction for injuries he allegedly sustained as a result of a hip replacement surgery. 1 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Carpenters Pension Trust Fund of St. Louis v. Barclays PLC , 750 F.3d 227, 232 (2d Cir. 2014). “A pleading that states a claim for relief must cont ain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fe d. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).

Upon de novo review of the record and relevant la w, we conclude that the District Court properly dismissed the amended complaint, substantially for the reasons stated in its well-reasoned October 7, 2014 opinion. Specifically, Rodman failed adequately to allege how his hip replacement was defective and how any defect caused his injuries. Instead, Rodman alleged conclusorily that his implant was manufactured “in an improper workmans hip-like manner, including but not limited to the application of the Hydroxyapatite (HA) coat ing.” Am. Compl. ¶ 42. At best, Rodman alleged that the coating “did not meet certain specifications . . . for tensile bond strength and crystallinity,”
id. ¶ 100, but he never identified how this problem rendered the product defective, whether it affected his individual hip replacement, or how it caused his alleged injuries. Accordingly, Rodman
failed to state a claim to relief for each of his causes of action.

1 As a clerical matter, Rodman’s CM/E CF filing for his notice of appeal in the District Court failed to select the order from which he was appealing. Although Rodman cure d this technical defect only af ter the time to file a notice of appeal had expired, his actu al notice of appeal, which was ot herwise timely, specifically re ferenced the District Court’s October 7, 2014 order. See Contino v. United States , 535 F.3d 124, 126-27 (2d Cir. 2008) (holding that Clerk of Court cannot refuse to accept notice of appeal erroneously filed electronically in violation of local rules); see also Fed. R. Civ. P. 5(d)(4) (“The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.”). Accordingly, it “can be inferred from the notice of appe al” that Rodman intended to appeal the District Court’s October 7, 2014 final judgment. Sahu v. Union Carbide Corp. , 548 F.3d 59, 66 (2d Cir. 2008); see Shrader v. CSX Transp., Inc. , 70 F.3d 255, 256 (2d Cir. 1995) (“[W]e construe not ices of appeal liberally , taking the parties’ intentions into account.”).3 CONCLUSION

We have considered all of the arguments raised by Rodman on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the District Court’s October 7, 2014 judgment.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk