Mendoza v. Vanguard Prod Corp

Filing 12

MEMORANDUM of Rule 16 Pretrial Conference and ORDER. Signed by Judge Stefan R. Underhill on 03/20/2017. (Jamieson, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSE MENDOZA,
Plaintiff,

No. 3:17-cv-00150 (SRU)

v.
VANGUARD PRODUCTS CORP.,
Defendant.
CONFERENCE MEMORANDUM AND ORDER
On March 20, 2017, I held a Rule 16 pretrial conference off the record with Gregory P.
Klein, attorney for the plaintiff, Jose Mendoza; and Joseph Michael Musco, attorney for the
defendant, Vanguard Products Corp. (“Vanguard”). We discussed jurisdictional issues, the
timeliness of Mendoza’s claims, and the possibility of settlement.
As an initial matter, I questioned whether I have subject matter jurisdiction over the
complaint. “[E]mployees do not have a private right of action” under the Occupational Safety
and Health (“OSH”) Act, Donovan v. OSHRC, 713 F.2d 918, 926 (2d Cir. 1983), and I cannot
exercise diversity jurisdiction because the parties are both citizens of Connecticut. Perhaps
federal question jurisdiction exists when a state negligence claim is premised on a violation of
the OSH Act, but I am not aware of any cases that so hold. Therefore, I asked counsel to research
whether I have subject matter jurisdiction over Mendoza’s claims, and to report their results by
April 3, 2017. If I determine that I lack jurisdiction, then I will remand the case to state court.
In addition, I identified a statute of limitations problem. Mendoza alleges that he was
injured on January 1, 2015. See Compl., Doc. No. 1-1, at 5. Under Connecticut’s two-year statute
of limitations for personal injuries caused by negligence, he was required to file suit by January
1, 2017. See Conn. Gen. Stat. § 52-584. Vanguard was not served with the writ, summons, and

complaint by a state marshal until January 4, 2017, however, and in Connecticut, “an action is
brought on the date on which the writ is served on a defendant.” John H. Kolb & Sons v. G & L
Excavating, 76 Conn. App. 599 n.5 (2003); see Compl., Doc. No. 1-1, at 10. Nevertheless,
Mendoza’s action may be timely if he delivered the writ of summons and complaint to the state
marshal within the limitations period. See Conn. Gen. Stat. § 52-593a (“[A] cause or right of
action shall not be lost because of the passage of the time limited by law within which the action
may be brought, if the process to be served is personally delivered to a state marshal . . . within
such time and the process is served, as provided by law, within thirty days of the delivery.”).
Hence, I directed Mendoza to produce an affidavit from the state marshal attesting that the
marshal received the writ, summons, and complaint before January 1, 2017.
Assuming that subject matter jurisdiction exists, I set December 31, 2017 as the
discovery deadline and December 31, 2017 as the deadline for dispositive motions. The Rule
26(f) Report is approved to the extent it is not inconsistent with the terms of this order.

So ordered.
Dated at Bridgeport, Connecticut, this 20th day of March 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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