Wilson v. Walmart et al

Filing 38

ORDER Granting 10 Motion to Dismiss as to Vons Companies, Inc. Denying 22 Motion to Add Safeway as a Defendant. Granting 23 Motion toAdd Walmart as a Defendant. Amended Complaint deadline: 5/28/2014. Signed by Judge Philip M. Pro on 4/29/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID LAWRENCE WILSON,
Plaintiff,

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v.

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WALMART, et al.,
Defendants.

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2:13-cv-00207-PMP-PAL

ORDER

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Presently before the Court is Defendant The Vons Companies, Inc.’s (“Vons”)

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Motion to Dismiss (Doc. #10), filed on November 21, 2013. Plaintiff David Lawrence

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Wilson (“Wilson”) filed an Opposition (Doc. #13) on December 2, 2013, and Vons filed a

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Reply (Doc. #14) on December 6, 2013. Wilson also filed a Surreply (Doc. #16) on

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December 30, 2013.
Also before the Court is Wilson’s Motion to Add Safeway as a Defendant (Doc.

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#22), filed on January 13, 2014. Vons filed an Opposition (Doc. #24) on January 28, 2014.

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Wilson filed a Reply (Doc. #26) on February 11, 2014.

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Also before the Court is Wilson’s Motion to Add Walmart as a Defendant (Doc.

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#23), filed on January 27, 2014. Vons filed an Opposition (Doc. #25) on February 7, 2014.

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Wilson filed a Reply (Doc. #27) on February 24, 2014.
On April 21, 2014, the Court conducted a hearing regarding the foregoing

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motions.

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I. BACKGROUND
Wilson alleges that on February 10, 2011, he bit down on a piece of metal in

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some ice cream he purchased at a Walmart store. (First Am. Compl. [“Am. Compl.”] (Doc.

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#4) at 2.) Wilson further alleges the piece of metal damaged his teeth, which required him

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to have a tooth surgically extracted. (Id. at 2-3.) Although he purchased the ice cream from

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Walmart, Wilson alleges that Defendant Vons distributes the ice cream to Walmart. (Id. at

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1.) Wilson further alleges the ice cream was manufactured by Defendant Lucerne Foods,

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Inc. (“Lucerne”), and that the defect in the ice cream occurred in the manufacturing process.

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(Id.) Wilson asserts against Vons, Safeway, Lucerne, and Bellevue Ice Cream Plant

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(“Bellevue”) a claim of products liability due to the alleged manufacturing defect. (Id. at 1-

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2.)

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Magistrate Judge Leen screened Wilson’s Amended Complaint and

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recommended Wilson’s claims against Safeway and Bellevue be dismissed for failure to

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state a claim. (Order (Doc. #5) at 4.) The Court affirmed, dismissing Wilson’s claims

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against Safeway and Bellevue. (Order (Doc. #7) at 1.) Additionally, although Wilson

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named Walmart as a defendant in his original Complaint, Wilson removed Walmart as a

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defendant in the Amended Complaint’s caption and does not allege claims against Walmart

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as he did in his original Complaint. However, the Amended Complaint states Walmart sold

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the ice cream that injured Wilson and cites the general rule that sellers and retailers may be

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liable for injuries caused by a defective product. (Am. Compl. at 1.)

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On November 1, 2013, the United States Marshal’s Service served a copy of

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Wilson’s Summons and Amended Complaint upon a woman named Penny Dietz (“Dietz”)

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at Vons’s corporate headquarters in California. (Process Receipt & Return (Doc. #8).)

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Vons now moves to dismiss, arguing Vons was not properly served with process and that

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Wilson fails to state a claim upon which relief can be granted. Wilson moves to add

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Safeway and Walmart as defendants.
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II. VONS’S MOTION TO DISMISS (Doc. #10)
Federal Rule of Civil Procedure 12(b)(5) provides for the dismissal of a

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complaint due to insufficient service of process. Under Rule 4(m), if a defendant is not

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properly served within 120 days after the complaint is filed, the Court “must dismiss the

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action without prejudice against that defendant or order that service be made within a

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specified time.” When service of process is challenged, the plaintiff bears the burden of

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establishing that service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801

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(9th Cir. 2004).

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A corporation may be served either “by delivering a copy of the summons and of

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the complaint to an officer, a managing or general agent, or any other agent authorized by

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appointment or by law to receive service of process,” or in the manner prescribed by the

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state law in which the district court is located or where service is made. Fed. R. Civ. P.

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4(h); 4(e)(1). Under the Nevada Rules of Civil Procedure, if the suit is against a

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corporation formed under Nevada law or registered to do business in Nevada, service may

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be accomplished by serving a registered agent or officer of the corporation. Nev. R. Civ. P.

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4(d)(1). Alternatively, a corporation may be served by delivering a copy of the summons

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and complaint to the Nevada Secretary of State if service cannot be accomplished on a

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registered agent or officer of the corporation. Id.

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Wilson has failed to meet his burden of showing he properly served Vons under

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Rule 4, Nevada law, or California law within 120 days. Although the United States

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Marshals served a copy of the Summons and Wilson’s Amended Complaint on Dietz at

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Vons’s headquarters, there is nothing in the record establishing that Dietz is an officer, a

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managing or general agent, or any other agent authorized by appointment or by law to

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receive service of process on behalf of Vons. Wilson could, and should, have served Vons

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via its registered agent in Nevada, The Prentice-Hall Corporation System, Nevada Inc.

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(“Prentice-Hall”). Although Wilson argues in his Surreply (Doc. #16) that Prentice-Hall is
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not listed on the Nevada Secretary of State website as a registered agent of Vons, Vons

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attaches to its Motion a printout from the Secretary of State website with the relevant

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information about Prentice-Hall. Further, although Wilson argues the only way to serve

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Vons is at its corporate headquarters in California, Wilson does not present any argument or

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legal authority demonstrating that the attempted service on Dietz was valid, and more than

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120 days have passed since Wilson filed his Amended Complaint on July 3, 2013. The

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Court therefore will grant Vons’s Motion to Dismiss on the grounds Vons was not properly

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served.

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III. MOTIONS TO AMEND
Wilson moves to amend his Amended Complaint to add Safeway and Walmart as

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defendants. In deciding whether to grant leave to amend pursuant to Federal Rule of Civil

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Procedure 15(a)(2), the Court considers factors such as undue delay, bad faith on the part of

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the movant, repeated failure to cure deficiencies by previous amendments, undue prejudice

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to the opposing party, and futility of the amendment. Foman v. Davis, 371 U.S. 178, 182

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(1962). A proposed amendment is futile “only if no set of facts can be proved . . . that

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would constitute a valid and sufficient claim.” Sweaney v. Ada Cnty., Idaho, 119 F.3d

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1385, 1393 (9th Cir. 1997) (quotation omitted). Leave to amend should be freely granted,

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especially with regard to pro se litigants. Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.

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1987).

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A. Safeway (Doc. #22)

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Wilson moves to add Safeway as a defendant, arguing Defendants Vons and

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Lucerne may not be capable of answering his discovery requests, and Safeway is capable of

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doing so. Wilson further argues Safeway owns the ice cream plant that produced the ice

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cream that caused Wilson’s injury, and should be liable for the damages caused. Although

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counsel for Vons has not made an appearance on behalf of Safeway, Vons opposes the

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Motion, arguing the Court’s previous dismissal of claims against Safeway was with
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prejudice, and Wilson’s claims against Safeway are therefore barred by res judicata. Vons

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further argues that the amendment would be futile because Wilson does not articulate any

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changes he would make to cure the pleading deficiencies in the Amended Complaint other

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than adding Safeway as a named defendant. Wilson replies that Safeway should be added

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as a defendant because it is involved in the manufacturing and distribution of the ice cream,

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including hiring employees for its Lucerne Foods team and employees for the ice cream

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plants that produce the ice cream.

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The Court previously dismissed Wilson’s claims against Safeway in his Amended
Complaint for failure to state a claim because Wilson did not allege any facts about

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Safeway or its citizenship. (Order (Doc. #7) at 1.) Because the Court previously dismissed

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Wilson’s claims against Safeway, Wilson does not articulate which facts he will allege to

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properly state a claim against Safeway, and Safeway does not need to be a defendant to

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respond to discovery requests, Wilson’s Motion to Add Safeway as a Defendant is denied.

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B. Walmart (Doc. #23)

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Wilson moves to add Walmart as a Defendant, arguing Walmart sold the ice

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cream that caused Wilson’s injury and Walmart was negligent. Although counsel for Vons

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has not made an appearance on behalf of Walmart, Vons opposes the Motion, arguing that

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Wilson’s removal of Walmart as a defendant was with prejudice, and Wilson’s claims

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against Walmart are barred by res judicata. Vons also argues that Wilson’s Motion should

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be denied because the Amended Complaint fails to state a claim against Walmart, and

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Wilson already had an opportunity to amend and failed to do so correctly.

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There is no indication that adding Walmart as a defendant would result in undue

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delay, nor does Wilson appear to move to amend in bad faith. The amendment would not

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be futile as Wilson alleges in his Amended Complaint Walmart’s role in the distribution of

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the ice cream as well as a theory of liability against Walmart. Vons does not indicate in its

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Opposition that the amendment would be unduly prejudicial, only that Wilson’s omission of
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Walmart as a defendant in the Amended Complaint constitutes a dismissal with prejudice

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and that Wilson previously had an opportunity to amend.
However, Wilson’s claims against Walmart were not dismissed with prejudice.

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Wilson did not include Walmart in the caption, and thus Walmart was not considered a

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party in the Amended Complaint. Although Wilson failed to heed Magistrate Judge Leen’s

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instruction to carry forward all allegations and parties from the original Complaint,

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Wilson’s removal of Walmart as a defendant appears to be a mistake. The Amended

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Complaint contains factual allegations concerning Walmart’s role in Wilson’s injury, and

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Wilson’s Memorandum in Support of the Amended Complaint (Doc. #3 at 3) includes

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Walmart in the caption. Because it appears Wilson’s failure to carry Walmart forward in

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his Amended Complaint was a drafting error, he should have an opportunity to amend his

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Amended Complaint to add Walmart. Wilson’s Motion to Add Walmart as a Defendant is

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granted. Wilson shall have until May 28, 2014, to file his second amended complaint.

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Wilson is instructed to add Defendant Walmart to the caption and to include allegations

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about both Wilson’s citizenship and Walmart’s citizenship.

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IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendant The Vons Companies, Inc.’s

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Motion to Dismiss (Doc. #10) is hereby GRANTED. Plaintiff David Lawrence Wilson’s

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claim against Defendant The Vons Companies, Inc. is hereby dismissed without prejudice.

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IT IS FURTHER ORDERED that Plaintiff David Lawrence Wilson’s Motion to

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Add Safeway as a Defendant (Doc. #22) is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff David Lawrence Wilson’s Motion to

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Add Walmart as a Defendant (Doc. #23) is hereby GRANTED.
IT IS FURTHER ORDERED that if Plaintiff David Lawrence Wilson wants to

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add Walmart as a defendant:

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Plaintiff shall have until May 28, 2014, to file his second amended complaint.
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Plaintiff is instructed to (1) add Defendant Walmart to the caption; (2) add an

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allegation about Plaintiff’s citizenship; and (3) add an allegation about Walmart’s

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citizenship.

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The second amended complaint must be a complete document in and of itself,

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and will supercede the First Amended Complaint in its entirety. Any allegations,

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parties, or requests for relief from prior documents that are not carried forward in

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the second amended complaint will no longer be before the Court.

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Plaintiff is expressly cautioned that failure to timely file a second amended
complaint that complies with these instructions may result in dismissal with
prejudice.

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DATED: April 29, 2014
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PHILIP M. PRO
United States District Judge

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