SENISCH et al v. TRACTOR SUPPLY COMPANY et al

Filing 17

OPINION. Signed by Judge Noel L. Hillman on 5/26/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
MICHAEL CHARLES and JULIE
ETTA SENISCH,
Plaintiffs,

Civil No. 16-47 (NLH/KMW)

v.
OPINION
TRACTOR SUPPLY COMPANY, et al.,
Defendants.
__________________________________
APPEARANCES:
Michael Charles Senisch
Julie Etta Senisch
38 Pindale Drive
Bridgeton, NJ 08302
Plaintiffs Pro Se
Michael L. Trucillo
Lewis Brisbois Bisgaard & Smith, LLP
One Riverfront Plaza
Suite 350
Newark, NJ 07102
Attorney for Defendant Gallagher Bassett Services, Inc.
HILLMAN, District Judge
Presently before the Court is a motion to dismiss filed by
Defendant Gallagher Bassett Services, Inc.

For the reasons that

follow, the motion [Doc. No. 5] will be granted.
I.

JURISDICTION
The Court exercises jurisdiction pursuant to 28 U.S.C. §

1332, based on diversity of citizenship.
citizens of the State of New Jersey.

Plaintiffs are

Defendant Tractor Supply

Company is a citizen of Delaware and Tennessee.
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Defendant

Gallagher Bassett Services, Inc. is a citizen of Delaware and
Illinois.

Defendant the Keith Corporation is a citizen of North

Carolina.

Defendant AON Corporation is a citizen of London,

England.
II.

The amount in controversy exceeds $75,000.

BACKGROUND

This personal injury action stems from a trip and fall
event which occurred on November 29, 2013 at the Tractor Supply
Company (“TSC”) store in Vineland, New Jersey.

(Notice of

Removal, Exhibit A, Compl. ¶ 9 [Doc. No. 1-1].)

Plaintiff

Michael Senisch alleges he was severely injured when he fell
over a platform type shopping cart in front of the store.
(Compl. ¶ 12.)

Plaintiff’s complaint for premises liability

contains five counts: (1) negligence; (2) negligence via res
ipsa loquitor; (3) negligence via strict liability; (4)
negligence per se; and (5) loss of consortium on behalf of
Plaintiff’s wife, Julie Etta Senisch.
In its motion to dismiss, Defendant Gallagher Bassett
Services, Inc. (“Gallagher”) argues that it is improperly named
as a defendant because it is only a third party claims
administrator for TCS.

It further argues it does not own,

operate, control or exercise any possessory interest over TSC’s
Vineland, New Jersey store and does not engage in any business
operations on behalf of TSC.

Accordingly, the essence of

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Gallagher’s motion is that it did not owe Plaintiffs a duty of
care.
III. STANDARD OF REVIEW
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Rule 12(b)(6), a court must accept all allegations
in the complaint as true and view them in the light most
favorable to the plaintiff.
347, 350 (3d Cir. 2005).

See Evancho v. Fisher, 423 F.3d

A complaint must contain “a short and

plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims[.]’”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8

(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1953
(2009) (“Our decision in Twombly expounded the pleading standard
for ‘all civil actions[.]’”) (citation omitted).

The Third

Circuit has instructed district courts to conduct a two-part
analysis in deciding a motion to dismiss.

Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

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First, a district court “must accept all of the complaint’s
well-pleaded facts as true, but may disregard any legal
conclusions.”

Fowler, 578 F.3d at 210-11 (citing Iqbal, 129 S.

Ct. at 1949).

Second, a district court must “determine whether

the facts alleged in the complaint are sufficient to show that
the plaintiff has a ‘plausible claim for relief.’”
(quoting Iqbal, 129 S. Ct. at 1950).

Id. at 211

“[A] complaint must do

more than allege the plaintiff’s entitlement to relief.”

Id.

“‘[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not ‘show[n]’ - ‘that the
pleader is entitled to relief.’”

Id. (quoting Iqbal, 129 S. Ct.

at 1949); see also Phillips v. County of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (“The Supreme Court’s Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.

This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (quoting Twombly, 550 U.S. at 556).
A court need not credit “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–
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30 (3d Cir. 1997).

The defendant has the burden of

demonstrating that no claim has been presented.

Hedges v.

United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.
1991)).
IV.

DISCUSSION

Gallagher argues that Plaintiffs’ claims against it must be
dismissed because it did not owe Plaintiffs a duty of care and
Gallagher is not liable for any conditions on TSC’s premises.
In support of this proposition, Gallagher relies on the
certification of its Vice President who avers that the company
is only involved in adjusting liability claims and does not
“own, operate or hold any possessory rights over TSC or any
property associated with TSC’s business operations.”

(Cert. of

Dewey Barnes ¶ 5).
The certification Gallagher presents in support of its
motion to dismiss goes beyond the pleadings and, therefore, will
not be considered.

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

Nonetheless, the

Court finds Plaintiffs have not plausibly stated a claim against
Gallagher.

Plaintiffs allege that “Tractor Supply Company, et

al.” owed a duty of care as the owners of a business property,
breached that duty by maintaining an obstructed walkway, which
caused Plaintiff Michael Senisch serious injury.

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(Compl. ¶ 97.)

Plaintiffs, however, fail to allege how Gallagher had any
involvement in the condition of the premises or provide any
other reason why Gallagher would be liable.

See Fowler, 578

F.3d at 211 (“[A] complaint must do more than allege the
plaintiff’s entitlement to relief.”).

Plaintiffs’ only

allegations regarding Gallagher’s involvement concern
communications Gallagher made on behalf of TSC regarding
Plaintiffs’ claim.

However, these communications are

insufficient to plausibly suggest Gallagher owed a duty to
Plaintiffs or are in any other way liable for Plaintiffs’
injuries.

Therefore, Plaintiffs have not plausibly stated a

claim against Gallagher.
V.

CONCLUSION
For the reasons expressed above, Gallagher Bassett’s motion

to dismiss will be granted.

An appropriate Order will be

entered.

Dated: May 26, 2016

___s/ Noel L. Hillman________
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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