UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

WARREN BEHRENS, et al., )

Plaintiffs, )

)

v. ) CAUSE NO.: 3:13-CV-40-JVB-MGG

)

ZIMMER INC., )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion to Dismiss Plaintiffs’ Short Form 

Complaint [DE 29], filed on May 21, 2020, by Defendant Zimmer Inc. (“Zimmer”). No response 

was filed, and the Court previously warned Plaintiffs, who are litigating pro se at this time, that 

the Court could proceed to rule on the motion if no response was filed.

This case was initiated on July 26, 2012, when Plaintiffs filed a Short Form Complaint with 

a Long Form Complaint attached as an exhibit. The case was originally filed in the Northern 

District of Illinois, was transferred here, and was later transferred back to the Northern District of 

Illinois as part of Multidistrict Litigation (MDL) case number 2272. On August 19, 2019, the 

United States Judicial Panel on MDL remanded the case back to this judicial district.

In the instant motion to dismiss and the accompanying memorandum, Zimmer asserts that 

this cause of action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for 

failure to state a claim. As Zimmer identifies, Zimmer filed a Master Answer in the MDL, which 

was deemed an answer to Plaintiffs’ Short Form Complaint, so this motion is more properly 

considered a motion for judgment on the pleadings under Rule 12(c).

A motion under Rule 12(c) is governed by the same standard as a Rule 12(b)(6) motion. 

Adams v. City of Indianapolis, 742 F.3d 720, 727-28 (7th Cir. 2014). The purpose of such a motion 

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is to test the sufficiency of the pleading, not to decide the merits of the case. See Gibson v. City of 

Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Federal Rule of Civil Procedure Rule 8(a)(2) provides 

that a complaint must contain “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” However, “recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 661, 678 (2009) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). As the Supreme Court has stated, “the tenet that a 

court must accept as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions.” Id. Rather, “a complaint must contain sufficient factual matter, accepted as true, to 

‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A 

complaint is facially plausible if a court can reasonably infer from factual content in the pleading 

that the defendant is liable for the alleged wrongdoing. Id. (citing Twombly, 550 U.S. at 570).

Judge Rebecca Pallmeyer of the Northern District of Illinois, in issuing a Suggestion of 

Remand of Plaintiffs’ claims in the MDL, found on August 14, 2019, that Zimmer demonstrated 

that Plaintiff Warren Behrens’s implant is not one that is the subject of the MDL. See Behrens v. 

Zimmer, Inc., No. 13 C 1547 (N.D. Ill. Aug. 15, 2019). Critical to Zimmer’s motion is whether the 

Court can take judicial notice this statement. As a general rule, evidence cannot be submitted to 

the Court for consideration in ruling on a motion brought under Rule 12(c). However, Federal Rule 

of Evidence Rule 201(b) allows judicial notice of an adjudicative fact that “is generally known 

within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The advisory 

committee notes to the 1972 proposed Rule 201 clarify that “[a]djudicative facts are simply the 

facts of the particular case.”

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The case docket from Plaintiffs’ case as it was pending as a part of the MDL in the Northern 

District of Illinois reports the above finding of Judge Pallmeyer. The accuracy of this finding 

cannot reasonably be questioned. Notably, this is a finding made in this very same case, even 

though it was made in this case while it was pending before a different court. The Court takes 

judicial notice of the finding that, for the purpose of this case, the surgical implant that Warren 

Behrens received is not one covered by the MDL.

The Long Form Complaint identifies five specific medical devices at issue in that 

complaint. Through Judge Pallmeyer’s finding regarding Mr. Behrens’s implant, it has been 

judicially determined that Mr. Behrens’s implant is not one of these five devices. Accordingly, the 

allegations in the Long Form Complaint regarding those five devices do not support Defendants’ 

claims for relief. Further, the allegations in the Short Form Complaint are also directed toward two 

of the five medical devices at issue in the Long Form Complaint. But, it has been judicially 

determined that Mr. Behrens’s received neither of these implants. The remaining allegations of the 

complaints do not state a claim upon which relief can be granted that passes the plausibility 

requirements of Twombly and Iqbal. Indeed, these remaining allegations name no specific Zimmer 

product that allegedly injured Plaintiffs. Accordingly, the motion to dismiss is granted.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS Defendant’s Motion to Dismiss 

Plaintiffs’ Short Form Complaint [DE 29] and DISMISSES without prejudice this cause of 

action. The Court DENIES as moot Zimmer’s Motion for Show Cause Order [DE 21].

SO ORDERED on July 6, 2020.

s/ Joseph S. Van Bokkelen

JOSEPH S. VAN BOKKELEN, JUDGE

UNITED STATES DISTRICT COURT

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