Jimenez v. Benny's, Inc. et al

Filing 35

Judge Mark L. Wolf: ENDORSED ORDER entered granting 14 Motion to Dismiss; adopting Report and Recommendations re 25 Report and Recommendations. "As there are no objections to this Report and Recommendation, and it is in any event persuasive, the Motion to dismiss is hereby ALLOWED. This case is hereby returned to the Magistrate Judge for Pretrial Proceedings. (Hohler, Daniel)

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Plaintiff,

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BENNY'S, INC., et at,

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Civil Action No. 14-10311-MLW

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REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS
[Docket No. 14]
January 22, 2015

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ROBERT K. JIMENEZ,

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fJ ,,~~ STATES &StRICT COURT

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Boal, MJ.

Plaintiff Robert K. Jimenez alleges that he was injured when a bicycle he purchased from
one of defendant Benny's, Inc. 's department stores malfunctioned, causing him to lose control

and crash. Amended Complaint (Docket No. 9-3) ("AC") at" 8, 9. He also alleges that the
bicycle was imported and/or distributed by defendant Kent International, Inc. AC' 8. Jimenez'
Amended Complaint contains three counts: negligence as to Benny's (Count I); res ipsa loguitor
as to Benny's (Count II); and negligence as to Kent International (Count III). Benny's has
moved to dismiss Count II of the Amended Complaint. Docket No. 14. 1 For the following
reasons, this Court recommends that the District Court grant Benny's motion.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,

On January 5, 2015, the District Court referred this case to the undersigned for full
pretrial management, including dispositive motions. Docket No. 20.
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