Cusack v. Bendpak, Inc. et al

Filing 88

MEMORANDUM DECISION AND ORDER - The Court HEREBY ORDERS: 1. Defendant Bendpaks Motion to Dismiss (Dkt. 66 ) is DENIED. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
COREY CUSACK, individually,
Case No. 4:17-cv-00003-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
BENDPAK, INC., a foreign corporation,
Defendant.

I. INTRODUCTION
Pending before the Court is Defendant Bendpak, Inc.’s (“Bendpak”) Motion to
Dismiss. Dkt. 66. Having reviewed the record and briefs, the Court finds that the facts
and legal arguments are adequately presented. Accordingly, in the interest of avoiding
further delay, and because the Court finds that the decisional process would not be
significantly aided by oral argument, the Court will decide the Motion without oral
argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons outlined below, the
Court DENIES the Motion.
II. BACKGROUND
On March 15, 2017, the Court held oral argument on numerous pending Motions.
Following the hearing, the Court issued a Memorandum Decision and Order. Dkt. 58.
MEMORANDUM DECISION AND ORDER - 1

Relevant to the instant Motion to Dismiss are the Court’s rulings regarding BendPak’s
Motion in Limine Re: Subsequent Remedial Measures and Cusack’s Motion to Amend
Complaint. The Court will briefly discuss each Motion and the Court’s prior rulings on
the same.
In its Motion in Limine Re: Subsequent Remedial Measures, Bendpak petitioned
the Court to preclude all evidence of subsequent remedial measures it made (specifically,
BendPak’s introduction of a secondary safety bracket) to the RJ-7 Rolling Jacks that are
at issue in this case. The Court granted in part and denied in part this Motion based upon
Idaho Code section 6-1406 and held that, “[c]onsistent with that statute, Cusack will not
be allowed to introduce evidence of BendPak’s adding of the secondary safety bracket for
purposes of negligence, defect etc., but will be able to introduce it under a ‘failure to
warn’ theory.” Dkt. 58, at 9.
In his Motion to Amend Complaint, Cusack requested that he be allowed to (1)
add a claim for punitive damages, and (2) remove all Defendants except BendPak from
the case caption and from the factual allegations of the Complaint. Ultimately, the Court
denied without prejudice the portion of Cusack’s Motion seeking to add a claim for
punitive damages and granted his request to remove everyone except BendPak from the
Complaint. Id. at 14-15. Cusack subsequently filed his Amended Complaint. Dkt. 60.
Following the issuance of the Court’s Decision—and Cusack filing his Amended
Complaint—BendPak filed a Motion to Dismiss (Dkt. 66) arguing that, in light of the
Court’s prior ruling, the Court must now dismiss certain of Cusack’s claims as they fail to
state a claim upon which relief could be granted. Additionally, BendPak argues that
MEMORANDUM DECISION AND ORDER - 2

several of the factual assertions in the Amended Complaint must be dismissed as they are
contrary the law of the case.
III. LEGAL STANDARD
A motion to dismiss for failure to state a claim challenges the legal sufficiency of
the claims stated in the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1242
(9th Cir. 2011). “A complaint generally must satisfy the notice pleading requirements of
Federal Rule of Civil Procedure 8(a)(2) to avoid dismissal under a Rule 12(b)(6) motion.”
Id. (citing Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003)). “Federal Rule of Civil
Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the
pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests,’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To sufficiently state a claim for relief and survive a 12(b)(6) motion, the pleading
“does not need detailed factual allegations;” however, the “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Id. Mere “labels and
conclusions” or a “formulaic recitation of the elements of a cause of action will not do.”
Id. Rather, there must be “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In light of Twombly and Iqbal, the Ninth Circuit summarized the governing
standard as follows: “In sum, for a complaint to survive a motion to dismiss, the
nonconclusory factual content, and reasonable inferences from that content, must be

MEMORANDUM DECISION AND ORDER - 3

plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv.,
572 F.3d 962, 969 (9th Cir. 2009).
In deciding whether to grant a motion to dismiss, the court must accept as true all
well-pleaded factual allegations in the pleading under attack. Iqbal, 556 U.S. at 663. A
court is not, however, “required to accept as true allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
IV. DISCUSSION
Cusack’s Amended Complaint contains four causes of action: (1) Strict Liability –
Design Defect; (2) Strict Liability – Manufacturing Defect; (3) Strict Liability – Failure
to Warn; and (4) Negligence.
BendPak alleges that because of the Court’s prior Decision (Dkt. 58), Cusack
cannot meet the threshold pleading requirements to support any of his claims. Following
the filing of the instant motion, Cusack notified the Court the he and BendPak had
stipulated that Count Two (Strict Liability – Manufacturing Defect) could be dismissed.
Dkt 74. The Court granted the same. Dkt. 80. Although Count Two was a large part of
BendPak’s Motion to Dismiss, the Court must address the remaining claims as well.
At the outset, the Court notes that BendPak’s Motion is extremely untimely. Under
the Court’s Second Amended Case Management Order (Dkt. 25), the parties were
required to file all dispositive motions by December 14, 2017. BendPak’s Motion was
filed on May 10, 2018, approximately five months late. For its part, BendPak asserts that
it could not have filed the Motion any sooner as it is the direct result of the Court’s April
MEMORANDUM DECISION AND ORDER - 4

12, 2018, Decision. BendPak explains that because the Court limited the evidence related
to the secondary safety bracket, Cusack cannot now support his claims. In other words,
BendPak is not accusing Cusack of adding new allegations to his Amended Complaint
that it now must address, but rather that Cusack did not remove allegations regarding the
remedial measures and that those lingering factual assertions are now contrary to the
posture of the case.
Cusack takes issue with BendPak’s timing justification and asserts that strictly
speaking—regardless of the Court’s ruling concerning the secondary safety bracket—
because the secondary safety bracket was not mentioned in the original Complaint, the
same argument (of an insufficient factual basis) was available since the beginning of this
case and BendPak could have timely filed any Motion to Dismiss on this ground.1
As for BendPak’s “law of the case” argument, it does appear that BendPak could
not have asserted this argument until recently. By its very nature, this type of argument
focuses on a Court’s interlocutory rulings and their status as the current and binding “law
of the case.”
While the Court is more persuaded by Cusack’s argument overall regarding
timing, it also understands BendPak’s argument—at least in part—as to why certain
theories in its Motion could not be brought until recently. Because the Court finds that

1

Of the 12 paragraphs BendPak cites as problematic, only two are new as of the Amended
Complaint. The other ten paragraphs are identical to the original Complaint (except for some
grammatical alterations). Thus, the Court agrees that BendPak was aware from the beginning of
the basis for Cusack’s claims—irrespective of a ruling regarding the secondary safety bracket.
MEMORANDUM DECISION AND ORDER - 5

there are other independent reasons for denying the Motion, the Court declines to reach a
formal decision regarding the timeliness of BendPak’s Motion. In short, the Court will
consider the Motion on the merits.
Although timing is a consideration, the Court is more concerned with the
substance of BendPak’s Motion as it appears to rest on conclusions that are shaky at best.
First, BendPak alleges that Cusack has failed to adequately plead his claims in his
Amended Complaint in light of the Court’s Decision limiting his use of evidence
regarding the secondary safety bracket. This argument is unavailing as it rests upon the
false assumption that the secondary safety bracket is the sole evidence Cusack has in
support of any of his claims. While the Court’s ruling did limit how Cusack can use the
evidence of BendPak’s introduction of a secondary safety bracket to the RJ-7 Rolling
Jacks, it did not exclude this evidence from consideration completely. Additionally, the
secondary safety bracket is not the only evidence Cusack raises in support of his claims.2
Cusack raised independent arguments in his original—and Amended—Complaint that do
not hinge on the secondary safety bracket. These factual allegations are sufficient to meet
the standards outlined in Iqbal and Twombly.
Second, it is well settled that “Federal Rule of Civil Procedure 8(a)(2) requires
only ‘a short and plain statement of the claim showing that the pleader is entitled to

2

Examples include Cusack’s repeated references in his Complaint to flaws or defects in the
BendPak Car Lift System and the rails upon which the RJ-7 Rolling Jack rolls, as well as his
claims that BendPak failed to warn customers that the RJ-7 could fall off the rails.
MEMORANDUM DECISION AND ORDER - 6

relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests,’” Twombly, 550 U.S. at 555 (quoting Conley, 355 U.S. at 470). Here,
Cusack has met that relatively low threshold—even considering the Court’s ruling that
limited Cusack’s use of certain pieces of evidence. Particularly in this case—where the
instant motion comes after extensive discovery and motion practice—the parties are both
well aware of the nature of the claims and the factual basis of those claims.
Finally, BendPak appears to argue that besides Cusack’s failure to state a claim for
relief—based on a lack of supporting evidence—the law of the case requires that certain
phrases and words be removed from the Amended Complaint. The Court will not require
Cusack to delete the content in question for two reasons. First, a case changes during the
course of litigation. The Court rules on issues, limits the evidence, and dismisses claims,
but each time this happens, the Court does not require the plaintiff to amend his or her
Complaint to conform with those rulings. It is understood that as “the law of the case” the
Court’s rulings govern.3 Factual allegations contained in a complaint that support a claim
that a plaintiff is no longer pursuing need not be removed. It is simply understood that
they no longer apply. In this case, the situation is even more nuanced because the Court
did not dismiss Cusack’s evidence outright, but rather limited it to certain theories

3

For example, after the filing of the instant Motion, the parties stipulated to dismissing Count
Two of Cusack’s Amended Complaint. The Court granted the same. Importantly, however, the
Court did not require Cusack to file another amended complaint with those references removed.

MEMORANDUM DECISION AND ORDER - 7

specifically, a failure to warn theory. Second, all the rulings thus far have been
interlocutory. In other words, circumstances could change at trial depending on the
evidence presented.4 There is no reason to delete material that could be important later.
V. CONCLUSION
First, in his Amended Complaint, Cusack has asserted facts sufficient to support
his three remaining claims. The Court’s ruling regarding the secondary safety bracket did
not limit the other evidence Cusack proffers in support of his claims.
Second, the Court’s prior ruling is assuredly the law of the case. Cusack cannot
introduce evidence in a manner contrary to the Court’s ruling. However, the Court will
not require Cusack to alter factual allegations or remove specific words or phrases in his
Amended Complaint that now—following discovery, depositions, motions, hearings, and
rulings—appear less favorable than originally pled. A short and plain statement is all that
is necessary. This case has morphed during litigation to clarify, limit, expand, or
extinguish certain aspects of Cusack’s claims; however, the Court will not require Cusack
to change the actual complaint.

4

In fact, the Court specifically ruled that although it would not allow Cusack to add a claim for
punitive damages at this stage of the litigation, he could renew that motion at trial based upon the
evidence presented. Dkt. 58, at 14. See also Murray v. City of Bonners Ferry, No. 2:15-CV00081-REB, 2017 WL 4318738, at *18 (D. Idaho Sept. 28, 2017). If the Court allows such a
motion at trial, obviously the Court will not require Cusack to file another amended complaint
outlining those factual allegations but will rely on the evidence presented at trial.
MEMORANDUM DECISION AND ORDER - 8

VI. ORDER
The Court HEREBY ORDERS:
1.

Defendant Bendpak’s Motion to Dismiss (Dkt. 66) is DENIED.

DATED: August 7, 2018
_________________________
David C. Nye
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 9