Siarkowski et al v. Petco Animal Supplies, Inc. et al
Filing
19
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/3/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANNA SIARKOWSKI, et al.
:
v.
:
Civil Action No. DKC 15-0430
:
PETCO ANIMAL
SUPPLIES, INC., et al.1
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this tort
case are partial motions to dismiss filed by Defendant SunPet,
LTD (“SunPet”) (ECF No. 9) and Defendant Petco Animal Supplies
Stores, Inc. (“Petco”) (ECF No. 12).
briefed,
and
necessary.
the
court
now
Local Rule 105.6.
rules,
The issues have been fully
no
hearing
being
deemed
For the following reasons, the
motions will be granted.
I.
Background
A.
Factual Background
The following facts are alleged in the complaint.
1).
(ECF No.
On or about November 15 and December 15, 2013, Plaintiff
Anna Siarkowski (“Ms. Siarkowski”) purchased two small pet rats
from a Petco store in Waldorf, Maryland.
Ms. Siarkowski and her
two minor children (collectively, the “Plaintiffs”) were exposed
to both rats “on a frequent and ongoing basis.”
1
(Id. ¶ 12).
Defendant Petco Animal Supplies Stores, Inc. states in its
motion to dismiss that it is incorrectly identified in the
caption. (ECF No. 12, at 1).
Plaintiffs were scratched by the rats and “came into contact
with secretions” from the rats.
Plaintiffs
moniliformis,
a
allege
that
bacterium
(Id. ¶ 13).
both
commonly
rats
had
known
as
streptobacillus
rat
bite
fever.
After coming in contact with the rats, Plaintiffs “sustained
severe and permanent injuries and symptoms of rat bite fever,
including,
but
not
limited
to,
rash,
inflammation,
sores,
chills, fever, vomiting, headaches, muscle aches, joint pain and
swelling, flu-like symptoms, and skin irritation, which required
medical treatment and will require medical treatment into the
future.”
(Id. ¶ 26).
B.
Procedural History
On February 13, 2015, Plaintiffs filed a complaint against
Defendants PetCo and SunPet (collectively, the “Defendants”).
Plaintiffs’ complaint contends that SunPet “regularly sold live
rats”
to
Petco
stores,
purchased their rats.
including
(Id. ¶ 3).
the
store
where
Plaintiffs
Plaintiffs’ complaint asserts
twenty-one counts against Defendants, the same seven on behalf
of each Plaintiff: assault (Counts I, VIII, and XV), battery
(Counts II, IX, and XVI), negligence (Counts III, X, and XVII),
products
liability
(Counts
IV,
XI,
and
XVIII),
intentional
infliction of emotional distress (Counts V, XII, and XIX), gross
negligence (VI, XIII, and XX), and res ipsa loquitur (Counts
VII,
XIV,
and
XI).
The
complaint
2
seeks
judgment
against
Defendants, jointly and severally, “in an amount in excess of
Seventy Five Thousand Dollars.”
Plaintiffs also seek punitive
damages.
On
nearly
April
21,
identical,
2015,
Defendants
pending
motions
filed
to
two
separate,
dismiss
the
but
assault,
battery, intentional infliction of emotional distress, and res
ipsa loquitur counts.2
(ECF Nos. 9; 12).
Defendants also seek
to dismiss Plaintiffs’ demands for punitive damages.
Plaintiffs
filed a response in opposition (ECF No. 15), and Defendants
replied (ECF Nos. 16; 17).
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
A complaint
need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”
Fed.R.Civ.P. 8(a)(2).
“Rule 8(a)(2)
still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
That showing must consist of more than “a
formulaic recitation of the elements of a cause of action” or
2
For purposes of this memorandum opinion, the two motions
will be discussed and treated together.
3
“naked
assertion[s]
devoid
of
further
factual
enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff.
See
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cnty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events.
United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis3
A.
Battery
“A battery occurs when one intends a harmful or offensive
contact with another without that person’s consent.
. . .
[A]n
indirect contact, such as occurs when a bullet strikes a victim,
may constitute a battery.
a
force
in
motion
which
‘It is enough that the defendant sets
ultimately
3
produces
the
result.’”
Plaintiffs consent to the dismissal of the assault counts.
(ECF No. 15, at 14). Accordingly, Counts I, VIII, and XV will
be dismissed.
4
Nelson v. Carroll, 355 Md. 593, 600-01 (1999) (quoting Prosser &
Keeton, The Law of Torts § 9, at 40 (5th ed. 1984)).
of
Appeals
of
Maryland
has
noted
that
“[i]t
is
The Court
universally
understood that some form of intent is required for battery.
. .
.
The intent element of battery requires not a specific
desire to bring about a certain result, but rather a general
intent
to
unlawfully
invade
another’s
through a harmful or offensive contact.”
Here,
Plaintiffs
contend
that
physical
well-being
Id. at 601-02.
Defendants
battered
them
because they “intended to have the pet rats come into contact
with the Plaintiffs” and Plaintiffs did not consent to touching
diseased rats.
(ECF No. 15, at 15-16).
The complaint asserts
that Defendants intentionally “touched” Plaintiffs through the
sale of, and subsequent scratching by, the rats.
8).
Defendants
counter
that
Plaintiffs’
(ECF No. 1, at
complaint
does
not
allege any facts showing that Defendants “effected an offensive,
unpermitted
Rather,
contact
Defendants
on
Plaintiffs.”
contend
that
“simple sales transactions.”
the
(ECF
parties
No.
9,
were
at
10).
engaged
(ECF No. 16, at 2).
in
The key
question is if Plaintiffs’ contact with the rats constituted
“contact” by Defendants.
Although
bullet,
may
an
indirect
constitute
a
contact,
such
as
the
firing
battery,
Nelson,
355
Md.
of
at
Plaintiffs have not plausibly alleged that type of battery.
5
a
601,
If
Defendants unleased the rats on Plaintiffs, the complaint could
plausibly state that Defendants intended unlawfully to invade
Plaintiffs’ physical well-being or legally protected interests.
However, here, the complaint merely alleges a routine sale of
pets.
To
find
a
retailer
liable
for
battery
based
on
the
subsequent use of something it sold “would expose the courts to
a flood of farfetched and nebulous litigation concerning the
tort of battery.”
Shaw v. Brown & Williamson Tobacco Corp., 973
F.Supp.
(D.Md.
Aldrich,
539,
Inc.,
548
No.
1997);
see
24-C-02-004175,
also
2003
Agbebaku
WL
v.
24258219,
Sigma
at
*18
(Md.Cir.Ct. June 24, 2003) (dismissing battery claims arising
from emission of pollution because the defendant did not intend
unlawfully
to
invade
the
plaintiffs’
physical
well-being
“through its ordinary conduct of producing energy”).
Because
the complaint does not plausibly allege that Defendants intended
to invade Plaintiffs’ legally protected interests through the
sale of the rats, Plaintiffs’ battery claims (Counts II, IX, and
XVI) will be dismissed.
B.
Intentional Infliction of Emotional Distress
As Judge Titus noted in Vance v. CHF Int’l., 914 F.Supp.2d
669, 682 (D.Md. 2012):
In order to succeed on an intentional
infliction of emotional distress claim,
Plaintiffs must demonstrate (a) intentional
or reckless conduct that is (b) outrageous
and extreme (c) causally connected to (d)
6
extreme emotional distress.
See Caldor,
Inc. v. Bowden, 330 Md. 632, 641–42, 625
A.2d 959 (1993). Maryland courts “have made
it clear that liability for the tort of
intentional infliction of emotional distress
should be imposed sparingly, and its balm
reserved for those wounds that are truly
severe and incapable of healing themselves.”
Id. at 642, 625 A.2d 959 (internal quotation
marks omitted).
“In order to satisfy the
element of extreme and outrageous conduct,
the conduct ‘must be so extreme in degree as
to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly
intolerable
in
a
civilized
society.’”
Mitchell v. Baltimore Sun Co., 164 Md.App.
497, 525, 883 A.2d 1008 (2005) (quoting
Batson v. Shiflett, 325 Md. 684, 733, 602
A.2d 1191 (1992)).
The emotional distress
“must be so severe that ‘no reasonable man
could be expected to endure it.’” Id.
(quoting Harris v. Jones, 281 Md. 560, 571,
380 A.2d 611 (1977)).
“One must be unable
to function; one must be unable to tend to
necessary
matters.”
Id.
(quotation
omitted).
In addition, “[e]ach of these elements must be pled and proved
with specificity.
It is not enough for a plaintiff merely to
allege that they exist; he must set forth facts that, if true,
would suffice to demonstrate that they exist.”
Servs. Admin., 78 Md.App. 151, 175 (1989).
viable in Maryland.
Foor v. Juvenile
The tort is rarely
See Respess v. Travelers Cas. & Sur. Co.,
770 F.Supp.2d 751, 757 (D.Md. 2011).
Plaintiffs allege that Defendants intentionally inflicted
emotional
distress
diseased rats.
on
them
by
selling
(ECF No. 1, at 17).
7
them
the
allegedly
They assert that selling
diseased rats to a family with young children is outrageous and
“shocks the conscious.”
(ECF No. 15, at 18).
Defendants
contend that Plaintiffs have not alleged any facts sufficient to
show
that
sufficient
Defendants’
to
conduct
establish
a
was
“extreme
plausible
infliction of emotional distress.
claim
or
outrageous”
of
intentional
(ECF No. 9, at 11).
“It is for the court to determine, in the first instance,
whether the defendant’s conduct may reasonably be regarded as
extreme and outrageous.”
Harris, 281 Md. at 569.
Even conduct
that is “intended to inflict emotional distress, or . . . has
been characterized by ‘malice’ is not sufficient to establish
outrageousness.”
Green v. Wills Group, Inc., 161 F.Supp.2d 618,
624 (D.Md. 2001) (citing Restatement (Second) of Torts § 46 cmt.
d).
The only conduct alleged in the complaint is Defendants’
selling
of
diseased
rats.
(ECF
No.
1,
at
17).
Even
if
Defendants’ conduct was intentional or reckless, the complaint
does
not
plausibly
allege
that
this
conduct
rises
to
the
requisite level of “extreme or outrageous” so as to “go beyond
all possible bounds of decency.”
Cf. Fairman v. Santos, 663
N.Y.S.2d
(dismissing
779,
782
(Sup.Ct.
1997)
an
intentional
infliction of emotional distress claim brought against a dog
owner by a dog-bite victim who contracted rabies).
Accordingly,
Plaintiffs’ intentional infliction of emotional distress claims
(Counts V, XII, and XIX) will be dismissed.
8
C.
Res Ipsa Loquitur
Plaintiffs’ complaint asserts three “counts” of res ipsa
loquitur,
and
Defendants
plaintiff
seeking
to
move
invoke
to
dismiss
res
ipsa
the
counts.
loquitur
must
“[A]
present
evidence of ‘(1) a casualty of a kind that does not ordinarily
occur
absent
negligence;
(2)
that
was
caused
by
an
instrumentality exclusively within the defendant’s control; and
(3)
that
was
plaintiff.’”
not
caused
by
an
act
or
omission
of
the
Gillespie v. Ruby Tuesday, Inc., 861 F.Supp.2d
637, 641-42 (D.Md. 2012) (quoting Holzhauer v. Saks & Co., 346
Md. 328, 335-36 (1997)).
“The
pleading.
evidence.”
(citations
doctrine
of
res
ipsa
loquitur
is
not
a
rule
of
It relates to the burden of proof and sufficiency of
Blankenship
and
internal
v.
Wagner,
quotation
261
marks
Md.
37,
omitted);
40
(1971)
see
also
Norris v. Ross Stores, Inc., 159 Md.App. 323, 331 (2004) (noting
that res ipsa loquitur is “merely a rule of evidence permitting
an inference of negligence to arise”).
The doctrine of res ipsa
loquitur allows a plaintiff to use circumstantial evidence to
satisfy a prima facie case of negligence.
See Gillespie, 861
F.Supp.2d at 641; District of Columbia v. Singleton, 425 Md.
398,
408
(2012).
The
doctrine
of
res
ipsa
loquitur
merely
provides Plaintiffs a way to prove their negligence claims, but
it does not provide a separate claim apart from negligence.
9
See, e.g., Menard, Inc. v. U.S. Equities Dev., Inc., No. 01-C7142, 2003 WL 21995187, at *1 (N.D.Ill. Aug. 18, 2003) (“The
doctrine
of
res
ipsa
loquitur
is
a
type
of
circumstantial
evidence, not a separate legal theory.”); Haddock v. Arnspiger,
793 S.W.2d 948, 950 (Tex. 1990) (“Res ipsa loquitur is simply a
rule of evidence by which negligence may be inferred by the
jury; it is not a separate cause of action from negligence.”).
Here,
Defendants
negligence counts.
do
not
move
to
dismiss
Plaintiffs’
Rather, they argue that “[a] cursory review
of the facts of this case reveals that the doctrine of res ipsa
loquitur is clearly not applicable.”
(ECF No. 9, at 13).
This
may be true, but any discussion of res ipsa loquitur necessarily
is
part
claims,
of
a
which
broader
will
discussion
remain
in
of
this
Plaintiffs’
case.
negligence
Accordingly,
a
determination regarding the doctrine of res ipsa loquitur is
premature, and the court will consider it along with Plaintiffs’
negligence
claims,
when
appropriate.4
However,
because
the
doctrine of res ipsa loquitur does not present a distinct cause
of action separate from negligence, Counts VII, XIV, and XXI
will be dismissed.
4
In at least some instances, “the Maryland Court of Appeals
has held the doctrine of res ipsa loquitur inapplicable to cases
involving multiple defendants.” Danner v. Int’l Freight Sys. Of
Washington, LLC, 855 F.Supp.2d 433, 469-70 (D.Md. 2012) (citing
Giant Food, Inc. v. Washington Coca-Cola Bottling Co., 273 Md.
592 (1975)).
10
D.
Punitive Damages
Plaintiffs’
twenty-one
punitive
complaint
counts.
damages
seeks
Under
must
punitive
Maryland
prove
law,
“actual
damages
a
for
plaintiff
malice,”
all
seeking
which
means
“conscious and deliberate wrongdoing, evil or wrongful motive,
intent
to
Wilson,
injure,
339
Md.
ill
will,
701,
733
or
fraud.”
(1995).
Montgomery
“[P]unative
Ward
damages
v.
are
awarded in an attempt to punish a defendant whose conduct is
characterized by evil motive, intent to injure, or fraud, and to
warn others contemplating similar conduct of the serious risk of
monetary liability.”
454 (1992).
clear
and
Owens-Illinois v. Zenobia, 325 Md. 420,
A plaintiff can prove actual malice by showing, by
convincing
evidence,
that
Defendants
“made
‘a
bad
faith decision . . . to market a product, knowing of the defect
and danger, in conscious or deliberate disregard of the threat
to
the
Spring,
Zenobia,
safety
of
Inc.
v.
325
Md.
the
consumer.’”
Borzym,
at
379
463).
Md.
Darcars
249,
“[F]or
a
264
Motors
of
(2004)
plaintiff
to
Silver
(quoting
recover
punitive damages, the complaint must contain a specific claim
for punitive damages and ‘must set forth facts that, if proven
true, would entitle the plaintiff to punitive damages.’”
Bowden
v. Caldor, Inc., 350 Md. 4, 22 (1998) (quoting Scott v. Jenkins,
345 Md. 21, 25 (1997)).
“[P]laintiffs must plead actual malice
with ‘a high degree of specificity’ . . . [and] must allege in
11
detail
in
his
complaint
the
facts
that
indicate
the
entertainment by the defendant of an evil motive or intent.”
Dow v. Jones, 232 F.Supp.2d 491, 496 (D.Md. 2002) (emphasis in
original) (quoting Jenkins, 345 Md. at 34).
Defendants assert that Plaintiffs’ complaint “is devoid of
facts, which, if proven, could satisfy the clear and convincing
standard that [Defendants] acted with actual malice.”
9,
at
15).
However,
at
the
motion
to
dismiss
(ECF No.
stage,
the
question “is not whether [Plaintiffs’] evidence is sufficient to
warrant
the
imposition
of
punitive
damages,
but
whether
[Plaintiffs have] pled ‘enough facts to state a claim to relief
that is plausible on its face.’”
Ben-Joseph v. Mt. Airy Auto
Transporters, LLC, 529 F.Supp.2d 604, 609 (D.Md. 2008) (quoting
Twombly, 550 U.S. at 570).
Plaintiffs, in their opposition to
the motions to dismiss, assert that their complaint alleges that
“Defendants knowingly and intentionally sold diseased rats to
the public.”
(ECF No. 15, at 21).
However, a close reading of
the complaint indicates that it does not allege facts plausibly
showing that Defendants knew the rats were diseased or that they
intentionally sold diseased rats.
Instead, the complaint only
asserts that Defendants had a duty to inspect “if [they] know or
through reasonable use of care should have know[n] that the
dangerous condition would not be obvious” to consumers (ECF No.
1 ¶ 46), and “Defendants were aware that diseased live rats are
12
unreasonably
dangerous
products
injury or death” (Id. ¶ 74).
capable
of
causing
serious
Importantly, the complaint does
not allege specific facts indicating that Defendants actually
knew the rats sold to Plaintiffs were diseased.
Plaintiffs’
conclusory allegation that “Defendants willfully and maliciously
continued
to
sell
live
rats
to
the
general
public
without
adequate warnings” about potential diseases is simply a bare
assertion that is not supported by any facts alleged in the
complaint.
The
remainder
of
the
complaint
merely
asserts
Defendants’ alleged tortious conduct, which is insufficient to
plead actual malice.
See Jenkins, 345 Md. at 36 (noting that
“punitive damages do not necessarily flow from a tortious act”).
Nothing in the complaint plausibly alleges actual malice with
the
required
Materials,
specificity.
Inc.,
383
See
F.Supp.2d
Hill
814,
v.
Brush
824-25
Engineered
(D.Md.
2005)
(dismissing a claim for punitive damages because the plaintiff
only “generally allege[d]” the defendant’s knowledge, and did
not
plead
charge”).
“specific
factual
allegations
to
support
that
Accordingly, Plaintiffs’ claims for punitive damages
will be dismissed.
13
IV.
Conclusion
For the foregoing reasons, the partial motions to dismiss
filed by Defendants will be granted.
A separate order will
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
14
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