O'Reilly v. BJ's Wholesale Club, Inc.
ORDER. For the reasons stated herein, the motion to dismiss 25 is GRANTED in part and DENIED in part. The Court GRANTS Defendant's 12(b)(6) motion to dismiss as to Plaintiff's time-barred negligence claim (Count Two), DENIES Defendant 9;s 12(b)(1) and 12(b)(2) motions for lack of personal and subject matter jurisdiction, and DENIES Defendant's motion to dismiss Plaintiff's class allegations. The case will proceed as to the breach of contract claim (Count One) and the CUTPA claim (Count Four). Signed by Judge Michael P. Shea on 7/17/17. (Tegeler, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BJ’s WHOLESALE CLUB, INC.,
RULING ON MOTION TO DISMISS
Plaintiff John O’Reilly (“Plaintiff”) filed a four-count amended complaint (“Compl.”)
against Defendant BJ’s Wholesale Club, Inc. (“Defendant”). Plaintiff alleges breach of contract
(Count One), negligence (Count Two), “class action claims” (Count Three), and violation of the
Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110 (Count Four). Defendant
moves to dismiss, arguing that Plaintiff’s amended complaint (i) fails to establish personal
jurisdiction, (ii) does not allege the $75,000 in damages required to satisfy 28 U.S.C. § 1332, (iii)
is time-barred under Connecticut’s negligence action statute of limitations, and (iv) does not
meet the requirements for a class action lawsuit under Rule 23. For the reasons stated below, the
Court GRANTS in part and DENIES in part Defendant’s motion to dismiss. (ECF No. 25.)
a. Factual Allegations
Plaintiff alleges that he is a member of Defendant’s wholesale club and was shopping at
Defendant’s North Haven, Connecticut location on August 8, 2014. (Compl. ¶ 1.) While
checking-out his purchases, Defendant’s cashier dropped a bottle of cleaning solution into
Plaintiff’s shopping cart, causing the bottle to break and splashing cleaning solution into
Plaintiff’s eyes and onto his face. (Id.)
Plaintiff alleges that he sat with Defendant’s store manager while the manager typed an
accident report and the store manager promised to send Plaintiff a copy. (Id.) On August 23,
2014, Plaintiff returned to Defendant’s store and spoke with the same store manager and asked
why he had not received a copy of the accident report. (Id.) Defendant’s store manager
informed Plaintiff that his supervisors had told him that he was not allowed to send a copy of the
accident report to Plaintiff. (Id.) Defendant’s store manager agreed, upon Plaintiff’s request, to
send a letter informing Plaintiff of the reason that he could not send the report. (Id.) Plaintiff did
not receive any such letter and, when Plaintiff asked why on his next visit to Defendant’s North
Haven store, the store manager said that he was “just not allowed to.” (Id.)
Plaintiff alleges that Defendant’s general liability claim coordinator initially denied the
existence of Plaintiff’s accident report and then refused to provide Plaintiff with a copy
following his final conversation with the store manager. (Id. ¶ 2.) Plaintiff also alleges that
Defendant’s general liability claim coordinator requested to talk with Plaintiff on December 19,
2015 about his theory of liability, his injuries, his treatment, and the documentation he has
demonstrating his injuries. (Id.)
Plaintiff alleges that he has experienced repeated incidents of blurred vision caused by
the cleaning solution splashed in his eyes at Defendant’s store, and that this resulted in numerous
falls and injuries. (Id. ¶ 1.) Plaintiff alleges that, in six falls caused by blurred vision, he has
injured his right hip, knee, left foot, and back and that his eyesight has deteriorated and his heart
condition has been aggravated. (Id.) Plaintiff alleges that one of the falls caused by his damaged
vision resulted in cuts and bruises from which he developed cellulitis. (Id.) Plaintiff also alleges
that the falls on his right hip have led to X-rays and cortisone shots to reduce pain, and will
ultimately require a hip replacement. (Id.)
Plaintiff also brings class allegations on behalf of himself and other victims of accidents
caused by Defendant’s employees’ negligence. (Id. ¶ 26.) Plaintiff alleges that these accidentvictim class members: (i) were required to submit accident reports, (ii) were promised copies of
the accident reports they submitted, (iii) were refused access to those accident reports by
Defendant, and (iv) were lied to or treated in bad faith by Defendant in pursuit of their claims
against Defendant and are all part of Plaintiff’s alleged class. (Id.) Plaintiff alleges that there are
questions of law and fact common to the class, including whether Defendant breached the terms
of class members’ membership contract, whether Defendant breached its fiduciary duty to class
members, whether Defendant made material misrepresentations to class members, whether
Defendant engaged in Connecticut Unfair Trade Practices Act (CUTPA)-violating practices, and
whether Defendant is liable to those class members for damages. (Id. ¶ 30(a)-(e).)
b. Procedural History
Plaintiff, who the Court will treat as pro se,1 filed his original complaint on August 9,
2016. (ECF No. 1.) Defendant filed a motion to dismiss on November 9, 2016, arguing (i) lack
of subject matter jurisdiction because the complaint did not meet the 28 U.S.C. § 1332
requirement of at least $75,000 in controversy, (ii) that Plaintiff’s negligence allegations were
beyond the Connecticut statute of limitations, (iii) lack of personal jurisdiction because of
improper service of process, and (iv) that Plaintiff’s class action claims did not meet the Rule 23
requirements. (ECF No. 14.) On November 30, 2016, Plaintiff filed his First Amended
Complaint (ECF No. 19) and the following day, the Court denied Defendant’s motion to dismiss
The Court notes that Plaintiff may have been assisted by Attorney Kenneth R. Davis, whose name appears at the
conclusion of Plaintiff’s amended complaint (Compl. at 18) as “Class Attorney.”
as moot (ECF No. 20), while allowing Defendant to renew its motion, which it did on December
15, 2016. (ECF No. 25.) Plaintiff filed his response in opposition to Defendant’s motion to
dismiss on January 5, 2016.2 (ECF No. 32.)
a. Rule 12(b)(1)
A “case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011). The “plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists.” Luckkett v. Bure,
290 F.3d 493, 497 (2d. Cir. 2002). “In resolving a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The court construes the complaint
liberally and accepts all factual allegations as true. Ford v. D.C. 37 Union Local 1549, 579 F.3d
187, 188 (2d Cir. 2009).
b. Rule 12(b)(2)
In a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the “plaintiff
bears the burden of showing the court has jurisdiction over the defendant,” and the “burden is
apportioned based on how far the case has progressed.” Corning Inc. v. Shin Etsu Quartz
Products Co., 242 F. 3d 364, at *2 (2d Cir. 2000). “The district court has considerable
procedural leeway in deciding 12(b)(2) motions, and it may accept affidavits if it so chooses.”
Corning, 242 F.3d 364, at *2 (quotation marks omitted). “[W]here . . . the district court relies
On May 8, 2017, Plaintiff filed a motion for summary judgment. (ECF No. 35.) The Court does not address that
motion at this time.
solely on the pleadings and supporting affidavits, the plaintiff need only make a prima facie
showing of jurisdiction.” Id. “[W]here the issue is addressed on affidavits, all allegations are
construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's
favor.” Whitaker v. Am. Telecasting, Inc., 261 F. 3d 196, 208 (2d Cir. 2001).
c. Rule 12(b)(6)
In considering a motion to dismiss under Rule 12(b)(6), a court construes the complaint
liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002). A court may allow a case to proceed only if the complaint pleads “enough facts to state a
claim to relief that is plausible on its face.” Id. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (citing Twombly, 550 U.S.
at 554-55). When a plaintiff submits a complaint pro se, the court must construe the allegations
liberally, raising “the strongest arguments [they] suggest.” Abbas v. Dixon, 480 F.3d. 636, 639
(2d Cir. 2007). A pro se plaintiff, however, still must meet the standard of facial plausibility. See
Hogan v. Fischer, 738 F. 3d 509, 515 (2d Cir. 2013) (“[A] pro se complaint must state a
plausible claim for relief.”) (citing Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009)).
a. Lack of Subject Matter Jurisdiction – 28 U.S.C. § 1332
Defendant argues that Plaintiff’s complaint should be dismissed for lack of subject matter
jurisdiction because the matter in controversy fails to exceed the $75,000 amount in controversy
required for diversity jurisdiction under 28 U.S.C. § 1332(a)(1). Although Defendant’s Motion
to Dismiss treats this as a motion under Rule 12(b)(6), motions to dismiss for lack of subject
matter jurisdiction are properly raised under Rule 12(b)(1). The Supreme Court has stated, “if,
from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover
the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff
never was entitled to recover that amount, and that his claim was therefore colorable for the
purpose of conferring jurisdiction, the suit will be dismissed.” St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 289 (1938). “A party invoking the jurisdiction of the federal court
has the burden of proving that it appears to a ‘reasonable probability’ that the claim is in excess
of the statutory jurisdictional amount.” Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d
781, 784 (2d Cir. 1994) citing Moore v. Betit, 511 F.2d 1004, 1006 (2d Cir. 1975). “This burden
is hardly onerous, however, for we recognize ‘a rebuttable presumption that the face of the
complaint is a good faith representation of the actual amount in controversy.’” Scherer v.
Equitable Life Assurance Soc’y of U.S., 347 F.3d 394, 397 (2d Cir. 2003) quoting Wolde-Meskel
v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999).
The Second Circuit has “held that the legal impossibility of recovery must be so certain
as virtually to negat[e] the plaintiff’s good faith in asserting the claim. If the right of recovery is
uncertain, the doubt should be resolved . . . in favor of the subjective good faith of the plaintiff.”
Chase Manhattan Bank, N.A. v. Am. Nat. Bank & Trust Co. of Chi., 93 F.3d 1064, 1070 (2d Cir.
1996) (internal quotation marks and citation omitted). “Even where the allegations leave grave
doubt about the likelihood of a recovery of the requisite amount, dismissal is not warranted.”
Scherer, 347 F.3d at 397 (internal quotation marks and citation omitted). “The jurisdictional
determination is to be made on the basis of the plaintiff’s allegations, not on a decision on the
merits.” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982) (holding that a
defense on the merits may not be considered or adjudicated on jurisdictional motions). A court
“assess[es] the amount in controversy at the time the action is commenced, without regard to the
merits of the claims or defenses, and without regard to subsequent events which bring the
amount in controversy below the jurisdictional requirement.” Kry v. Poleschuk, 892 F. Supp.
574, 576 (S.D.N.Y. 1995).
Plaintiff’s good faith assertions support his claim that his damages exceed $75,000.
Plaintiff alleges permanent injury to his eyesight and numerous injuries from falls caused by his
compromised eyesight. (Compl. ¶ 1.) He alleges medical bills for many doctors’ appointments,
X-rays, cortisone shots, and echocardiograms resulting from his falls. (Id.) As a result of his
physical injuries, Plaintiff alleges, he also incurred pain and suffering, lost income, and impaired
ability to work. (Id. ¶ 23.) He also alleges that he needs a hip replacement as a result of the falls,
which he alleges will cost between $60-85,000. (Id.) Finally, Plaintiff alleges that his ability to
work as a paralegal was halved after his injury, resulting in lost wages. (Pl.’s Resp. in Opp’n at
13.) Plaintiff has provided some documentation of his visits to the doctor over the period
between 2014 and 2016. (ECF No. 19-1.) Based on Plaintiff’s allegations and because any
“doubt should be resolved . . . in favor of the subjective good faith of the plaintiff,” he has stated
a claim for the requisite amount in controversy to satisfy 28 U.S.C. § 1332. Chase Manhattan
Bank, N.A., 93 F.3d at 1070.
Defendant argues that Plaintiff’s settlement offers for less than $75,000, which were set
forth in letters from Plaintiff’s then-attorney,3 Attorney Davis (ECF No. 14), should constitute an
admission that the amount in controversy does not satisfy 28 U.S.C. § 1332. (Def.’s Mot. to
Dismiss at 13.) However, the fact that Plaintiff was willing to accept less than $75,000 as a
settlement to avoid trial is not proof that the full value of his claim is less than $75,000. As
See note 1, supra.
courts have consistently recognized in the context of the Federal Rules of Evidence, statements
made during settlement negotiations have “the potential to end the instant federal litigation in an
amicable fashion and . . . should therefore be excluded as evidence of conduct or statements
made in compromise negotiations.” Pace v. Paris Maint. Co., 7 Fed. Appx. 94, 96 (2d Cir.
2001); See also Levick v. Maimonides Med. Ctr., No. 08 Civ. 03814(CLP)(NG), 2011 WL
1673782, at *2 (E.D.N.Y. May 3, 2011) (“Under Rule 408 of the Federal Rules of Evidence,
settlement agreements are also generally held to be inadmissible at trial.”). The Court does not
consider Plaintiff’s settlement offers in evaluating the amount in controversy.
b. Lack of Personal Jurisdiction – Improper Service
Defendant moves to dismiss for lack of personal jurisdiction under Rule 12(b)(2) and
argues that Plaintiff failed to properly serve Defendant with the complaint and summons. Under
the Federal Rules of Civil Procedure, “any person who is at least eighteen years old and not a
party . . . .” may serve a defendant with a summons and complaint. Fed. R. Civ. P. 4(c)(1-2). A
corporation, such as Defendant, must be served either (i) according to state statutes or rules, or
(ii) “by delivering a copy of the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to receive service of
process and – if the agent is one authorized by statute and the statute so requires – by also
mailing a copy of each to the defendant.” Id. 4(h)(1)(A-B).
Service of process was made on Defendant’s agent, Pamela Consoletti-Murphy, by
Glenna O’Reilly on October 14, 2016, according to a signed “Proof of Service” document
submitted to the Court by Plaintiff. (ECF No. 5.) The individual who served process, Glenna
O’Reilly, is not a named party in this case and attested to being over the age of eighteen. The
document submitted to the Court states “this summons for BJ’s Wholesale Club, Inc. was
received by me on Oct. 14, 2016 . . . I served the summons on Pamela Consoletti-Murphy, who
is designated by law to accept service of process on behalf of BJ’s Wholesale Club, Inc. on Oct.
14, 2016” and concludes with “I declare under penalty of perjury that this information is true.”
(ECF No. 5.)
Defendant argues that Plaintiff’s service of process was deficient because it did not
comply with Conn. Gen. Stat. § 52-20(a)-(b), which is a Connecticut statute governing service of
process. (Mot. to Dismiss at 8-9.) But Federal Rule 4(h)(1)(A-B) gives a plaintiff serving a
corporate defendant, such as BJ’s Wholesale Club, Inc., the option of complying with state rules
or delivering a copy of the complaint and summons to an agent of the defendant. Defendant
does not contest the adequacy of Plaintiff’s proof of service, nor does it allege that service was
made on an improper agent of Defendant under Rule 4(h). Finally, Defendant does not allege
that Plaintiff’s process server did not comply with Rule 4(c)(1)-(2). Because Plaintiff is in
compliance with Rule 4’s requirements for service of a corporate defendant, Plaintiff has made
proper service under the Federal Rules of Civil Procedure and does not need to comply with
Conn. Gen Stat. § 52-20(a)-(b).
Defendant also argues that Plaintiff has not provided adequate proof that a copy of the
summons and complaint was also mailed to Defendant and, therefore, service is improper under
Rule 4(h). But Rule 4(h) states that mailing is required only “if the agent is one authorized by
statute and the statute so requires.” See Rule 4(h)(1)(B) (process must be served “by delivering a
copy of the summons and of the complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service of process and – if the agent
is one authorized by statute and the statute so requires – by also mailing a copy of each to the
defendant.”) Defendant does not allege that its agent served by Plaintiff was made an agent by
statute, and has made no showing that Plaintiff was required to mail a copy in addition to making
in-hand service under Rule 4(h). Moreover, even if mailing were required in this case, Plaintiff
states that he mailed a copy of the summons and complaint. (Pl.’s Resp. in Opp. at 2.) He has
also provided a copy of a tracking receipt from the United States Postal Service, dated October
25, 2016, for a first-class envelope, which he states is evidence that he mailed the summons and
complaint. (ECF No. 19-4.)
Plaintiff’s service of process was proper under Fed. R. Civ. P. 4(h)(1)(B) and therefore
this Court does have personal jurisdiction in this matter.
c. Count Two - State Negligence Claims Time-Barred
Defendant moves to dismiss Plaintiff’s negligence claim under Conn. Gen. Stat. § 52584, Connecticut’s two-year statute of limitations for claims based on injuries to persons or
property caused by negligence. “Although the statute of limitations is ordinarily an affirmative
defense that must be raised in the answer, a statute of limitations defense may be decided on a
Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Deswal v. U.S. Nat’l
Ass’n, 603 Fed. Appx., at *24 (2d. Cir. 2015) (citing Ellul v. Congregation of Christian Bros.,
774 F.3d 791, 798 n. 12 (2d Cir 2014).
Under Section 52-584, “no action to recover damages for injury to the person . . . shall be
brought but within two years from the date when the injury is first sustained or discovered or in
the exercise of reasonable care should have been discovered . . . .” Conn. Gen. Stat. § 52-584.
The Connecticut Supreme Court has held that “the limitation period for actions in negligence
begins to run on the date when the injury is first discovered or in the exercise of reasonable care
should have been discovered . . . .” Barrett v. Montesano, 269 Conn. 787, 793 (2004).
“Decisional law makes it clear that the basic purpose of the statute of limitations is to encourage
promptness in instituting claims and to avoid prejudice to defendants which results when a
plaintiff delays prosecuting his claim.” Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174
Under Connecticut law, “the time when the action is regarded as having been brought is
the date of service of the writ upon the defendant.” Converse v. Gen. Motors Corp., 893 F.2d
513, 515 (2d Cir. 1990) quoting Consol. Motor Lines, Inc. v. M&M Transp. Co., 128 Conn. 107,
109 (1941); See also Rios v. CCMC Corp., 106 Conn. App. 810, 820 (2008) (“Legal actions in
Connecticut are commenced by service of process.”). This rule applies in this diversity action in
spite of the language of Rule 3 of the Federal Rules, which provide that “[a] civil action is
commenced by filing a complaint with the court.” Fed. R. Civ. P. 3. “Because Fed. R. Civ. P. 3
does not purport to displace state tolling rules for purposes of state statutes of limitations, state
rules integral to the state statute of limitations govern in diversity actions.” Converse, 893 F.2d
at 515 (internal quotation marks and citations omitted). In other words, Plaintiff was required to
serve process for the negligence claim within two years of discovering the injury.
Plaintiff alleges injury as a result of Defendant’s negligence which occurred on August 8,
2014. (Compl. ¶ 1.) Plaintiff also alleges that the first incident in which the injury to his eyes
caused him to fall “was a few days after the splashing accident.” (Compl. ¶ 19.) Based on those
allegations, the negligence statute of limitations began to run either on August 8, 2014 or “a few
According to the Proof of Service document, Plaintiff served Defendant with process on
October 14, 2016, more than two years after both the cleaning solution splashing incident and
Plaintiff’s first fall. (ECF No. 5.) Because that date is beyond the two-year statute of limitations
set in Conn. Gen. Stat. § 52-584, the negligence claim is time-barred.
Further, Plaintiff does not set forth any facts suggesting equitable tolling might apply.
Equitable tolling is warranted “only in rare and exceptional circumstances . . . [if] a petitioner
demonstrates (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Harper v. Ercole, 648 F.3d 132, 136
(2d. Cir. 2011). “To show that extraordinary circumstances prevented him from filing his petition
on time, petitioner must demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and the lateness of his filing, a
demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have
filed on time notwithstanding the extraordinary circumstances.” Hizbullahankhamon v. Walker,
255 F.3d 65, 75 (2d Cir. 2001), cert denied, 536 U.S. 925 (2002). Plaintiff does not allege that
relevant facts were concealed from him by Defendant, that he was unaware of his injury, or that
he was delayed in any other way that might warrant equitable tolling. Indeed, the letters from
Attorney Davis filed on the docket show that the Plaintiff was aware of his claim and was
seeking to negotiate an out-of-court resolution of it well before the statute of limitations ran. The
negligence claim is therefore dismissed.
d. Failure to Satisfy Class Action Prerequisites
The Plaintiff has included in his complaint, as a separate count, “class action allegations.”
(Compl. ¶ 26.) But such allegations are not a distinct legal cause of action, however they might
be labeled. They are, instead, merely allegations aimed at invoking a joinder device recognized
by Federal Rule of Civil Procedure 23. They are, therefore, not a proper target of a Rule
12(b)(6) motion, which is used to attack allegations for a “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6) (emphasis added). In any event, it is premature
to consider the class allegations because the Plaintiff has filed no motion to certify a class. The
motion to dismiss the “Third Count” is therefore denied.
For the reasons stated above, the motion to dismiss (ECF No. 25) is GRANTED in part
and DENIED in part. The Court GRANTS Defendant’s 12(b)(6) motion to dismiss as to
Plaintiff’s time-barred negligence claim (Count Two), DENIES Defendant’s 12(b)(1) and
12(b)(2) motions for lack of personal and subject matter jurisdiction, and DENIES Defendant’s
motion to dismiss Plaintiff’s class allegations. The case will proceed as to the breach of contract
claim (Count One) and the CUTPA claim (Count Four).
IT IS SO ORDERED.
Michael P. Shea, U.S.D.J.
July 17, 2017
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