Michnovez et al v. Blair, LLC

Filing 54

ORDER denying 38 Motion to Dismiss; granting 44 Motion for Leave to File Second Amended Complaint. Court construes document #50 to be a motion to dismiss the second amended complaint. Plaintiff may respond within the time li mits applicable to an objection to a motion to dismiss. So Ordered by Magistrate Judge Landya B. McCafferty. Within 48 hours counsel shall electronically refile the pleading attached to the Motion for Leave to File using the appropriate event in CMECF. (ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

John Michnovez, Individually
and as Executor of the Estate
of Velma Michnovez; and
Susan Michnovez
v.

Case No. 10-cv-110-LM

Blair, LLC; A-One Textile and
Towel Industries; Bureau Veritas
Consumer Products Services (Pre)
Ltd.; and Bureau Veritas Consumer
Products Services, Inc.

O R D E R
In the amended complaint in this case, three plaintiffs
assert twenty-four claims against four different defendants, all
arising out of the death of Velma Michnovez in a fire that
started when her chenille bathrobe ignited while she was cooking
at her stove.

According to the complaint, the robe was sold to

Michnovez by one defendant, manufactured by a second, and
tested/inspected by the remaining two.

Before the court are:

(1) a motion to dismiss the amended complaint filed by one of
the alleged inspectors, Bureau Veritas Consumer Products
Services, Inc. (“BV Inc.”), to which plaintiffs object; and (2)
plaintiffs‟ motion for leave to file a second amended complaint,
which is opposed by BV Inc. but none of the other three

defendants.

For the reasons that follow, plaintiffs‟ motion for

leave to file a second amended complaint is granted, but the
court will consider the issues raised in BV Inc.‟s opposition,
once plaintiffs have had an opportunity to respond, as explained
below.
Procedural History
This case got its start when Velma Michnovez‟s estate, her
son (John Michnovez), and her daughter-in-law (Susan Michnovez)
sued Blair, LLC (“Blair”), the company that allegedly sold Velma
the bathrobe that caused the accident that killed her.

The

original complaint consisted of six counts: (1) the estate‟s
claim for wrongful death (Count I); (2) the estate‟s claim for
enhanced compensatory damages (Count II); (3) the estate‟s claim
for conscious pain and suffering (Count III); (4) John‟s claim
for personal injuries (Count IV); (5) John‟s claim for negligent
infliction of emotional distress (Count V); and (6) Susan‟s
claim for negligent infliction of emotional distress.
Subsequently, the court granted plaintiffs‟ motion to amend
their complaint.

The amended complaint asserts each of the six

claims described above against: Blair (Counts I-VI), the alleged
manufacturer of the bathrobe, A-One Textile and Towel Industries
(A-One) (Counts VII-XII), and two companies that were allegedly
involved in the inspection, testing, and certification of

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chenille bathrobes, Bureau Veritas Consumer Products Services
(Pre) Ltd. (“BV Ltd.”) (Counts XIII-XVIII), and BV Inc. (Counts
XIX-XXIV).
Regarding the actions that, in plaintiffs view, subject BV
Ltd. to liability, the amended complaint states: “At all times
hereinconcerned, the defendant, [BV Ltd.], was engaged in the
testing, and inspection of chenille bathrobes.”
(doc. no. 21-1) ¶ 53.

Am. Compl.

The complaint continues by asserting that

BV Ltd. “knew or should have known that [if] it certified that
the flammability of said chenille bathrobes was such that the
robe complied with Federal Standards that its customer Blair
would sell such robes within the United States, including the
State of New Hampshire.”

Id.

¶ 54.

Regarding BV Inc.‟s

conduct, the complaint alleges:
At all times hereinconcerned, the defendant, [BV Inc.]
either individually or through its related
corporation, [BV Ltd.], was engaged in the testing and
inspection of chenille bathrobes.
At all times hereinconcerned, the defendant [BV Inc.]
arranged, facilitated, contracted for or otherwise
participated in testing conducted by its related
corporation, [BV Ltd.] on Blair chenille bathrobes.
At all times hereinconcerned, the defendant [BV Inc.]
controlled, managed, participated in or was otherwise
responsible for testing conducted by its related
corporation, [BV Ltd.] on Blair chenille bathrobes.
At al[l] times hereinconcerned, the defendant [BV
Inc.] knew or it should have known that if it or its
related corporation [BV Ltd.] certified that the
flammability of said chenille bathrobes was such that
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the robe complied with Federal standards that its
customer Blair would sell such robes within the United
States including the State of New Hampshire.
Id. ¶¶ 75-78.
BV Inc. moved to dismiss Counts XIX through XXIV of the
amended complaint, for failure to state a claim upon which
relief can be granted.

See Fed. R. Civ. P. 12(b)(6).

BV Inc.

argues that Counts XIX through XXIV should all be dismissed
because of the insufficiency of plaintiffs‟ factual allegations.
It further argues that the claim for enhanced compensatory
damages (Count XX) should be dismissed for the additional reason
that plaintiffs have failed to allege the kind of wanton,
malicious, or oppressive conduct necessary to entitle a
plaintiff to the extraordinary remedy of enhanced compensatory
damages.
While BV Inc.‟s motion to dismiss was pending, plaintiffs
moved for leave to file a second amended complaint.

There are

three principal differences between the amended complaint and
the proposed second amended complaint.

First, plaintiffs seek

to add a fifth defendant, Bureau Veritas, S.A. (“BV S.A.”).
Second, they propose to diminish the number of counts from
twenty-four to eighteen.

They do so by asserting their six

causes of action against: (1) Blair (Counts I-VI); (2) A-One
(Counts VII-XII); and (3) BV Ltd., BV Inc., and BV S.A.,
collectively (Counts XIII-XVIII).
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Third, plaintiffs appear to

recast the alleged relationships among the BV entities, moving
from what seems to be an agency relationship between BV Inc. and
BV Ltd. in the amended complaint to the following relationship,
as described in the proposed second amended complaint: “Because
[BV Ltd., BV Inc., and BV S.A.] acted as a single global entity
in connection with its activities in testing and certifying
Blair Robe Model 30931, plaintiffs refer to said defendants as
Bureau Veritas („BV‟) in connection with the allegations of the
remaining counts herein.”
56.)

(Sec. Am. Compl. (doc. no. 44-3) ¶

BV Inc. objects to plaintiffs‟ motion to amend their

complaint, arguing that amendment would be futile because the
second amended complaint fails to state a claim upon which
relief can be granted.

In particular, BV Inc. challenges the

legal basis for plaintiffs‟ agglomeration of all three BV
defendants into a co-called “single global entity.”
Discussion
The complexities of this case, as described above, create a
set of dilemmas that would not be present if this were a
situation in which the plaintiff in a single-defendant case were
seeking to amend his or her complaint to add new factual
allegations or a new cause of action.

If the court were to deny

plaintiffs‟ motion for leave to amend, based on the futility of
their claims against BV Inc., that denial would also have the

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effect of forestalling plaintiffs‟ attempt to add BV S.A. as a
defendant.

That is, there is nothing that would prevent

plaintiffs from filing yet another motion for leave to amend, to
add BV S.A., which would add to costs of litigation on both
sides.
On the other hand, if the court were to grant the motion to
amend, BV Inc. would, no doubt, move to dismiss the second
amended.

Moreover, it would very likely do so on the same

grounds that animate its objection to plaintiffs‟ motion to
amend.

Cf. Glassman v. Computervision Corp., 90 F.3d 617, 623

(1st Cir. 1996) (“„Futility‟ means that the complaint, as
amended, would fail to state a claim upon which relief could be
granted.”) (citing 3 Moore‟s Federal Practice ¶ 15.08[4], at 1518 (2d ed. 1993)).

Just as the court is reluctant to put the

parties to the expense of litigating another motion for leave to
amend, it is also reluctant to put the parties to the expense of
litigating another motion to dismiss, especially where the
arguments in favor of dismissal have already been fully
articulated in BV Inc.‟s objection to plaintiffs‟ motion to
amend.
Conclusion
Based on the foregoing, and in the interests of both
judicial economy and saving the parties the time and expense of

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resubmitting arguments they have already made, under new
captions, the court: (1) grants plaintiffs‟ motion for leave to
file a second amended complaint, doc. no. 44; (2) deems BV
Inc.‟s objection, doc. no. 50, to be a motion to dismiss the
second amended complaint; and (3) denies, as moot, BV Inc.‟s
motion to dismiss the amended complaint, doc. no. 38, with the
proviso that any arguments stated therein that apply to the
second amended complaint will be considered by the court when it
rules on the motion to dismiss the second amended complaint.
That said, the court also recognizes that fairness demands that
plaintiffs be given a proper opportunity to respond to BV Inc.‟s
newly identified motion to dismiss.

Accordingly, the court

directs plaintiffs to respond to the arguments raised in
document no. 50, if they choose to do so, within the time limits
applicable to an objection to a motion to dismiss.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge

Dated:
cc:

April 29, 2011

David P. Angueira, Esq.
Eric K. Blumenfeld, Esq.
Alan L. Cantor, Esq.
Joel Thomas Emlen, Esq.
Dona Feeney, Esq.
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Bruce W. Felmly, Esq.
James C. Fitzpatrick, Esq.
D. Patterson Gloor, Esq.
Theodore V.H. Mayer, Esq.
Steven M. Shear, Esq.
Edward M. Swartz, Esq.
Jori L. Young, Esq.

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