HORAN et al v. DOCK ST. SEAFOOD, INC. et al
MEMORANDUM ORDER that Defendant's Motion in Limine to Dismiss the Amended Complaint is converted into a motion for summary judgment; the parties shall each have until February 27, 2017 to provide additional information. Signed by Judge Renee Marie Bumb on 2/21/2017. (tf, )
[Dkt. No. 120]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MAUREEN HORAN and DENNIS
Civil Action No. 12-2273
DILBET, INC. d/b/a WINDRIFT
This matter comes before the Court upon Defendant Dilbet,
Inc.’s (“Defendant” or “Windrift”) Motion in Limine to Dismiss
Plaintiffs’ Amended Complaint.
[Dkt. No. 120]. Plaintiffs
Maureen Horan and Dennis Vachon (“Plaintiffs”) oppose the
Because the Court writes only for the parties, it will
set forth only a brief background of the case.
Initially, the Court notes that the motion is labelled by
Defendant as a motion to dismiss.
In practical terms, and as
made obvious by the copious evidentiary exhibits attached to
Defendants’ motion papers, it is a second motion for summary
On August 26, 2015, this Court denied Defendant’s
motion for summary judgment, allowing the case to proceed on a
that if the Plaintiffs were able to present
evidence that the clams at issue contained Vibrio in an amount
less than the infective dosage level - evidence that Plaintiffs’
expert Dr. James D. Oliver identified – then the question of
Defendant Windrift’s unsanitary conditions that Plaintiffs
allege increased Plaintiff’s risk of infection would be relevant
to the jury’s consideration.
Op. at 42-50 [Dkt. No. 86].
In opposition to the within motion, Plaintiffs assert that
this Court imposed an impossible “but for” causation standard.
This is not so.
The parties agreed that the Vibrio bacterium
occurs naturally in clams.
They also agreed that the average
healthy person is completely resistant to infection from Vibrio.
Nevertheless, a person who suffers from hemochromatosis, like
Plaintiff, has an 800 percent greater chance of acquiring an
infection than an average consumer.
Plaintiffs have conceded
that they cannot prove – in fact, it is impossible to prove –
that there was an infectious dose of Vibrio in the clams Ms.
Horan ate because the clams have been consumed.
contend that the Court imposed an impossible “but for” burden of
Plaintiffs continue to misread the Court’s ruling.
Court initially denied summary judgment because, based on the
testimony of the experts, there was sufficient (however, slim)
evidence to put before the jury that, the clams that were
delivered to Windrift either contained no Vibrio (highly
unlikely) or levels below the infective dosage level of 100-300
organisms (more likely given the water temperatures at the time,
the season, and location of harvesting).
presented such evidence, then the conduct of Windrift regarding
its alleged unsanitary conditions likely increased, i.e. was a
“contributing factor” in, Plaintiff Maureen Horan’s risk of
injury and would be relevant for the jury’s consideration.
Thus, in so holding, the Court imposed on Plaintiffs the burden
to prove an increased risk of harm on the part of Defendant
To state it differently, if Plaintiffs failed to
prove that the delivered clams contained no Vibrio or less than
the infective dosages, then Plaintiffs could not prove that
Windrift’s conduct added to the risk of harm.
The parties’ experts agreed that there is no way to
determine the Vibrio count in the delivered clams consumed by
Plaintiffs’ expert, Dr. Oliver, however, testified
that there was a way to prove that the clams did not contain
such a count, i.e., by analyzing water temperature, season, etc.
That was at the summary judgment stage of the case.
Now, on the
eve of trial, Plaintiffs concede that they are not able to
present such testimony.
Again, although such evidence is
possible, as Dr. Oliver testified, Plaintiffs have not presented
That being the case, as Plaintiffs concede that
there is no such evidence to present to the jury, barring the
procedure set forth below, the Court will likely grant
Defendant’s motion to dismiss the case consistent with the above
Because the motion is styled as a motion to dismiss, but is
actually for all intents and purposes, a motion for summary
judgment, the Court cannot grant summary judgment absent “a
reasonable opportunity to present “all the material that is
pertinent to the motion.”
Fed. R. Civ. P. 12(d).
will convert the within motion to one for summary judgment.
Court will permit the parties an opportunity to respond.
parties may present to the Court any additional information they
believe is material to the resolution of the converted motion
for summary judgment.1
To the extent the parties do not wish to
present additional information or the supplemented information
does not impact the Court’s above reasoning, the Court intends
to rule consistent with the above and will issue an appropriate
order at that time.
ACCORDINGLY, IT IS HEREBY on this 21st day of February,
Due to the Court’s understanding of the posture of the case,
the Court does not anticipate any supplementation beyond what
was presented in Plaintiffs’ brief in response to the in limine
motion will be needed. Discovery has concluded, summary
judgment has already once been decided, and the case is more-orless trial ready. Nevertheless, in compliance with Federal Rule
of Civil Procedure 12(d) and in an abundance of caution, the
Court permits this period to the parties.
ORDERED that Defendant’s Motion in Limine to Dismiss the
Amended Complaint is converted into a motion for summary
judgment pursuant to Federal Rule of Civil Procedure 12(d), and
the parties are directed to inform the Court of any additional
information that should be considered at summary judgment; and
it is further
ORDERED that the parties shall each have until February 27,
2017 to provide additional information (or request an
extension), at which point the Court will reopen and rule on the
motion for summary judgment.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Date: February 21, 2017
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