GUERRIERO et al v. SANFORD L.P. et al
MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 8/2/16. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Guardian Ad Litem of A.G., a
minor of six years, et al.,
Civ. No. 12-5246 (KM)
SANFORD L.P., a Division of
Newell Rubbermaid, et al.,
The plaintiffs, Themi Guerriero and Angelo Guerriero, filed this action
personally and on behalf of their minor child, A.G. The complaint alleges that,
on June 13, 2011, A.G. was injured when he poked himself in the eye with the
cap of a green Sharpie Altra Fine Marker. Defendants Newell Rubbermaid Inc.
and Sanford, L.P. (collectively “Newell”) removed the action to this court,
invoking diversity jurisdiction over these state-law claims. The Guerrieros filed
an Amended Complaint (“AC”, ECF no. 12), which Newell answered on
November 26, 2013 (ECF no. 14). Now before the court is Newell’s motion
under Fed. R. Civ. P. 12(c) for judgment on the pleadings (ECF no. 78) seeking
to dismiss certain of the claims for failure to state a claim as a matter of New
Jersey state law.
For the reasons stated herein, the motion is granted in part and denied
The Amended Complaint alleges that on June 13, 2011, A.G., who was
six years old, was injured by a Sharpie Ultra Fine Marker. (AC
defendants, Sanford L.P., Newell Rubbermaid, North Carolina Plastics, Carolina
Precision Plastic, LLC, and CPP Global, LLC, allegedly had some unspecified
roles in the “design, manufacture, supply, assembly, installation, maintenance,
inspection, repair, packaging, distribution, advertising, marketing and! or sale”
of the marker. (AC
1) All of the Complaint’s causes of action are pled against
According to the motion papers, Newell designed and assembled the
marker. The cap, which caused the injury, was manufactured under contract
by Carolina Precision Plastics. (Def. Brf., ECF no. 78-3 at 5)
The Complaint contains six counts. They are not labeled and the name of
the cause of action is not explicitly stated. As best I can tell, they are as
Count 1 alleges that defendants were negligent and failed to warn
Count 2 alleges that defendants breached the implied warranty of
merchantability and fitness for a particular purpose.
Count 3 alleges that defendants breached express warranties of
merchantability and fitness for a particular purpose.
Count 4 alleges that the product had defects that rendered it
unreasonably dangerous to users, rendering defendants strictly liable in tort.
Count 5, evidently a demand for punitive damages, alleges that
dcfendants acted recklessly, intentionally, and maliciously with respect to the
danger of the product.
Count 6 alleges a claim of “negligence” on behalf of the parents, Themi
and Angelo Guerriero, asserting that as a result of A.G. ‘s injuries they incurred
medical expenses on A.G.’s behalf lost their own wages, and lost the services
According to Newell, plaintiffs have “advised” of their intent to pursue
claims including the loss of companionship of A.G., destruction of their
marriage, and emotional distress.
A motion for judgment on the pleadings pursuant to Rule 12(c) is often
indistinguishable from a motion to dismiss, except that it is made after the
filing of a responsive pleading. Federal Rule of Civil Procedure 12(h)(2)
“provides that a defense of failure to state a claim upon which relief can be
granted may also be made by a motion for judgment on the pleadings.” Turbe v.
Gov’t of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Accordingly, when a
Rule 12(c) motion asserts that the complaint fails to state a claim, the familiar
Rule 12(b)(6) standard applies. Id.
R. Civ. P. 12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
to dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.s.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillzps v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined by
later Supreme Court Twombly case, infra).
R. Civ. P. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a
U.S. at 678 (2009).
it asks for more than a sheer possibility.” Iqbal, 556
A. Posture of the Motion
This motion, a challenge to the claims in the complaint as a matter of
law, comes late. Plaintiff errs in saying that the Rule 12(c) motion must be
denied “because discovery is ongoing,” implying that such a motion should
await the “completion of discovery.” (P1. Brf., ECF no. 80 at 7) It is a summary
judgment motion, not a Rule 12(c) motion, that ordinarily should be brought at
the close of discovery. A Rule 12(c) motion, by contrast, may be brought “[ajfter
the pleadings are closed—but early enough not to delay trial....” Fed. R. Civ. P.
12(c). At any rate, it appears that the deadline for fact discovery (but not expert
discovery) expired some time ago, as of December 31, 2015. (ECF no. 69)
This motion comes some three years after the filing of the Amended
Complaint. For the most part these are matters that could have been asserted
in a Rule 12(b)(6) motion to dismiss. The motion promises little in the way of
efficiency or of narrowing discovery. Nevertheless, it may be useful in focusing
the claims. I therefore consider it.
B. Claims Subsumed by the PLA
Under New Jersey law, the Products Liability Act (PLA) subsumes other
claims. Newell asserts that certain of the counts must therefore be dismissed in
favor of a single, PLA-based cause of action.
The PLA “established the sole method to prosecute a product liability
action” such that “only a single product liability action remains.” Tirrell v.
Plaintiff cites a state law standard. (ECF no. 80 at 7)(motion to dismiss should
be denied “[i]f a generous reading of the allegations merely suggests a cause of
action...”) It does not apply here in federal court.
Navistar Int’l, Inc., 591 A.2d 643, 647—48 (N.J. Super. Ct. App. Div. 1991). “The
language chosen by the Legislature in enacting the PLA is both expansive and
inclusive, encompassing virtually all possible causes of action relating to harms
caused by consumer and other products.” In re Lead Paint Litig., 924 A.2d 484,
503 (N.J. 2007). It “effectively creates an exclusive statutory cause of action for
claims falling within its purview.” Repola v. Morbark Indus., Inc., 934 F.2d 483,
492 (3d Cir. 1991).
The PLA subsumes any cause of action “for harm caused by a product,
irrespective of the theory underlying the claim, except actions for harm caused
by breach of an express warranty.” N.J. Stat. Ann.
§ 2A:58C—1(b)(3). The PLA,
however, defines “harm” in a particular way. The PLA’s definition of “harm”
(quoted above) encompasses resulting harm to property (other than the product
itself) as well as harm to the person, including pain and suffering and
emotional harm. N.J. Stat. Ann.
The PLA therefore would subsume most claims that a defective product
caused “harm” as defined in the PLA. Judge Thompson put it aptly:
Taken literally, the language of the PLA is broad—so broad in fact,
that a literal reading must be discarded. For example, whenever
somebody commits a battery with a commercially-made object, the
victim suffers “harm caused by a product,” but nobody maintains
that the PLA has subsumed the tort of battery. It is therefore
unsurprising that, when deciding whether or not the PLA has
subsumed a particular claim, courts do not simply determine
whether or not the victim’s injury was literally “caused by a
product.” Instead, courts tend to look at the essence of the claims
and decide whether or not the plaintiff is disguising what would
traditionally be considered a products liability claim as an
alternative cause of action.
New Hope Pipe Liners, LLC v. Composites One, LCC, No. CIV. 09-3222, 2009 WL
4282644, at *2 (D.N.J. Nov. 30, 2009).
Thus a quasi-products liability claim—one that a defective product
caused personal injury to the plaintiff, or even consequential damage to the
plaintiff’s home or property—would properly be brought only under the PLA.
See generally Sinclair v. Merck & Co., Inc., 948 A.2d 587, 596 (N.J. 2008) (“The
heart of plaintiffs’ case is the potential for harm caused by Merck’s drug. It is
obviously a product liability claim.”); Clements v. Sanofi-Aventis, U.S., Inc., 111
F. Supp. 3d 586, 597 n.5 (D.N.J. June 11, 2015); Schraeder v. Demilec (USA)
LLC, 2013 WL 3654093 (D.N.J. July 12, 2013); Baily v. Wyeth, Inc., 37 A.3d
549, 581 (N.J. Super. Ct. Law Div. 2008). On the other hand, when the
“essential nature” of the claim is not that of a PLA claim, “the plaintiff may
maintain a separate cause of action.” New Hope Pipe Liners, supra.
Count 1 asserts a claim of negligence; Count 2, breach of implied
warranties; and Count 4, strict liability in tort. The resulting harm in each case
consists primarily of the physical injury to A.G., pain and suffering, and the
resulting expenses. These are classic products liability claims. They are
subsumed by the PLA.
Consequently, the motion for judgment on the pleadings is granted to the
extent that Counts 1, 2, and 4 are dismissed in their current form, and will be
deemed to be replaced by a single claim of liability under the Products Liability
Act. Plaintiffs are directed to amend their complaint accordingly.
B. Claims for Loss of Society and Companionship
Newell says that plaintiffs have “advised” that they intend to pursue a
claim for loss of A.G.’s society and companionship, and for “destruction” of
their marital relationship. Such damages, according to Newell, are not available
as a matter of New Jersey law.
It is impossible to glean from the complaint that plaintiffs are suing to
recover damages for the loss of A.G.’s society and companionship. Such a claim
would be highly problematic. Tynan v. Curzi, 753 A.2d 187 (N.J. Super. App.
Div. 2000) (recognizing parent’s cause of action for loss of minor child’s
services, earnings, and medical expenditure, but declining to extend it to an
adult unemancipated child); McDonald v. Lederle Laboratories, 366 N.J. Super.
555, 561-62 (App. Div. 2004) (affirming summary judgment dismissing parent’s
per quod claim for loss of companionship and society of injured child, but
remanding for trial of claim of loss of child’s services); H.T. v. E. Windsor Reg’l
Sch. Dist., 2006 U.S. Dist. LEXIS 80821 at *10 (D.N.J. Nov. 3, 2006) (“parents
per quod damages resulting from negligent injuries to a minor child are limited
to loss of services, earnings, and medical expenditures, and do not include loss
of companionship and society”).
It is equally unclear from the complaint that plaintiffs are suing for
damages for loss of consortium in their marriage as a result of injury to their
child. If so, this would appear to carry the theory rejected by Tynari a step
Plaintiffs may move before the Magistrate Judge to amend their
complaint to assert such claims. The Magistrate Judge will determine, in the
first instance, whether defendants have been prejudiced by the delay, and
whether amendment would be futile.
At present, I do not regard such claims as having been properly pled, and
they cannot be inserted into the case by means of language in a brief. For the
present, this motion, although directed at the complaint, does not call for
dismissing or striking anything that is in the complaint. I will not entertain a
motion to dismiss things of which the defendant has been “advised.”
Newell alleges that the claim of negligent infliction of emotional distress
(NIED) must be dismissed as a matter of law. I see no such claim in the
complaint. The count that comes closest, Count 6, merely alleges that as a
result of “negligence,” the parents have lost their own wages while caring for
the child, that they have incurred medical expenses on behalf of the child, and
that they have lost the services of the child.
If the plaintiffs wish to assert a NIED claim—and their brief suggests that
they might—they must move to amend. The Magistrate Judge will determine, in
the first instance, whether defendants have been prejudiced by the delay, and
whether amendment would be futile.
For the parties’ guidance, I state that a NIED claim requires that “(a)
defendant owed a duty of reasonable care to plaintiff; (b) defendant breached
that duty; (c) plaintiff suffered severe emotional distress; and (d) defendants
breach of duty was the proximate cause of the injury.” Dello Russo u. Nagel,
817 A.2d 426, 435 (App. Div. 2003). Most NIED cases have required a
demonstration of physical injury to corroborate plaintiff’s claims of emotional
harm. The cases have made an exception for the kind of shocking
conduct—apprehension of immediate personal injury to plaintiff, witnessing
severe injury to a close relative, mishandling of a corpse—that indisputably
would cause severe distress. Portee v. Jafee, 417 A.2d 521 (N.J. 1980), for
example, authorized a NIED claim under the following conditions: “(1) the
death or serious physical injury of another caused by defendants negligence;
(2) a marital or intimate, familial relationship between plaintiff and the injured
person; (3) observation of the death or injury at the scene of the accident; and
(4) resulting severe emotional distress.” Id. at 528. Newell preemptively argues
that the parent here did not witness the injury to their child at the scene of the
accident. From the complaint, it is impossible to tell.
Accordingly, the motion of Newell for judgment on the pleadings is
granted in part and denied in part. An appropriate order accompanies this
Dated: August 2, 2016
H N. KEVIN MCNULTY, U$.D./
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