O'CONNOR et al v. THE DODGE COMPANY, INC. et al

Filing 24

OPINION. Signed by Judge Jose L. Linares on 11/17/2016. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PATRICIA O’CONNOR, et al.,

:

Plaintiffs,

CIVIL ACTION NO. 16-5177 (JLL)
OPINION

V.

THE DODGE COMPANY, INC., et a!.,
Defendants.

LINARES, District Judge

Each defendant in this action has a motion pending before the Court. First, the
defendant Hydrol Chemical Company (“Hydrol”) moves pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(2) and Rule 12(b)(6) to dismiss all of the plaintiffs’
claims that are asserted against it. (See dkt. 7 through dkt. 7-7; dkt. 8; dkt. 11 through
dkt. 11-23; dkt. 12; dkt. 12-1; dkt. 17.)1 Second, the defendant Pierce Cornpanis
(“Pierce”) moves pursuant to Rule 12(b)(2) and Rule 12(b)(6) to dismiss all of the
plaintiffs’ claims that are asserted against it.

(S dkt.

13 through dkt. 13-3; dkt. 14; dkt.

19.) Third, the defendant The Dodge Company, Inc. (“Dodge”) joins with the part of
Hydrol’s motion that seeks to dismiss the plaintiffs’ claim for consumer fraud pursuant to

The Court will refer to documents by the docket entry numbers and the page numbers
imposed by the Electronic Case Filing System.

Rule 1 2(b)(6), on the ground that the allegations therein are not covered by the New
Jersey Consumer Fraud Act (“NJCFA”). (See dkt. 9; dkt.

91.)2

The plaintiffs oppose all

of the motions. (See dkt. 10; dkt. 1$; dkt. 18-1.)
The Court will resolve the three motions upon a review of the papers and without
oral argument. See L.Civ.R. 78.1(b). The Court presumes that the parties are familiar
with the factual context and the procedural history of this action. For the following
reasons, the Court will:
• grant the parts of the motions filed by Hydrol and Pierce that seek relief under
Rule 12(b)(2);
• grant the parts of the motions filed by Hydrol and Pierce that seek relief under
Rule 1 2(b)(6) insofar as those motions raise arguments concerning proper pleading
standards;
• deny Dodge’s motion and the parts of the motions filed by Hydrol and Pierce
that seek to dismiss the claims for consumer fraud on the ground that the allegations
therein are not covered by the NJCFA;
• otherwise deny the remaining parts of the motions filed by Hydrol and Pierce
without prejudice; and
• dismiss the complaint, but without prejudice to the plaintiffs to file an amended
complaint in 30 days that properly alleges personal jurisdiction, and that complies with
proper pleading standards.

2

Dodge does not move to dismiss for lack of personal jurisdiction.

2

BACKGROUND

The plaintiffs, Patricia O’Connor and Megan O’Connor, initially brought this
action to recover damages for personal injuries in New Jersey state court. (See dkt. 1-1 at
2.) The complaint contains causes of action for (1) strict product liability, (2) breach of
express and implied warranties, (3) negligence, (4) fraudulent misrepresentation, (5)
consumer fraud, and (6) loss of consortium.
The defendants removed this action to federal court under diversity jurisdiction.
See 28 U.S.C.

§

1332(a). (See dkt. 1.) The complaint contains an allegation that the

plaintiffs are currently New Jersey citizens. Dodge is deemed to be a Massachusetts
citizen. (See dkt. 1 at 2.) Pierce is deemed to be a Texas citizen. (Id. at 3; see also dkt.
13-2 at 1.) Hydrol is deemed to be a Pennsylvania citizen.

(S dkt.

I at 2.) The

defendants manufacture, market, distribute, and sell embalming chemical products, as
well as other chemicals and supplies, for use by morticians and by funeral homes.
The plaintiffs allege that Patricia O’Connor was diagnosed with leukemia in
March 20 14, and allege that she developed leukemia due to her exposure to formaldehyde
in the workplace during the course of her employment as a funeral director. In the
complaint, the plaintiffs allege that approximately 35 products manufactured by Dodge,
one product manufactured by Hydrol, and one product manufactured by Pierce contain
formaldehyde. (See dkt. 1-1.) However, the complaint lacks any allegations concerning
where Patricia O’Connor worked; the dates that she worked in funeral homes; when or if
she was exposed to the listed products; or the manner of her exposure to formaldehyde,

3

i.e., by touching it or by breathing it in. (See generally dkt. 1-1.) In fact, the complaint
does not contain a specific allegation that Patricia O’Connor actually used the
defendants’ products at issue during the course of her employment in the funeral industry.
LEGAL STANDARDS
I.

Rule 12(b)(2)

It is not necessary for the Court to restate the standard for resolving a motion made
pursuant to Rule 12(b)(2) to dismiss for lack of general jurisdiction or lack of specific
jurisdiction, as that standard has been already enunciated. ç Cerciello v. Canale, 563
Fed.Appx. 924, 925—27 (3d Cir. 2014) (discussing Metcalfe v. Renaissance Marine, Inc.,
566 f.3d 324 (3d Cir. 2009); Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir.
2004); Carteret Say. Bank, FA v. Shushan, 954 F.2d 141 (3d Cir. 1992); and Provident
Nat’l Bank v. Cal. Fed. Say. & Loan Ass’n, $19 F.2d 434 (3d Cir. 1987)); see also
Krishanthi v. Rajaratnarn, No. 09-5395, 2010 WL 3429529, at *3, *16 (D.N.J. Aug. 26,
2010) (discussing the same cases).
However, it bears mentioning in this instance that once the defendants have argued
in support of a motion to dismiss that a district court lacks personal jurisdiction, the
burden then falls on the plaintiffs to go beyond mere allegations and to show sufficient
facts to establish that personal jurisdiction is proper in the forum state.

Scc Provident

Nat’l Bank, $19 F.2d at 437. Furthenriore, “the plaintiffls’] right to conduct
jurisdictional discovery should be sustained” only if the plaintiffs present “factual
allegations that suggest with reasonable particularity the possible existence of the
requisite contacts between [the defendants] and the forum state.” Toys “R” Us, Inc. v.

4

Step Two, S.A., 31$ F.3d 446, 456 (3d Cir. 2003) (quotation marks and citation omitted).
II.

Rule 12(b)(6)

It is also not necessary for the Court to restate the standard for resolving a motion
made pursuant to Rule 12(b)(6). See Mariotti v. Mariotti Bldg. Prods., Inc., 714 f.3d
761, 764—65 (3d Cir. 2013) (setting forth standard; citing Bell Ati. Corp. v. Twombly,
550 U.S. 544 (2007)); Fowler v. UPMC Shadyside, 57$ f.3d 203, 209—12 (3d Cir. 2009)
(setting forth standard; citing Twombly and Ashcroft v. Igbal, 556 U.S. 662 (2009)).
However, it bears mentioning that the plaintiffs must “plead[] factual content tin the
complaint] that allows the court to draw the reasonable inference that the defendant[s]
tare] liable for the misconduct alleged.” See Iqbal, 556 U.S. at 67$ (citing Rule $(a) and
Twombly, 550 U.S. at 556).
DISCUSSION
I.

Personal Jurisdiction

Hydrol and Pierce argue that the Court lacks general jurisdiction over them,
because they do not have offices, bank accounts, records, assets, or a presence in New
Jersey. Furthermore, they argue that the plaintiffs do not allege that Hydrol and Pierce
have any level of contact with New Jersey at all.
Hydrol and Pierce also argue that the Court lacks specific jurisdiction over them,
because they have not purposefully directed their activities or coimnunications to New
Jersey, and thus any contacts they may have to New Jersey are too attenuated. They also
argue that the complaint is bereft of specific allegations that Patricia O’Connor’s injuries
arose from, or are related to, any alleged conduct by Hydrol or Pierce within or directed

5

toward New Jersey, such as any allegations that Patricia O’Connor used their products in
New Jersey after they were sold, shipped, or sent to her or to her employer.

(Scc dkt. 7-6

at 13, 16—19; dkt. 13 at 10—13.)
The plaintiffs do not raise any arguments in support of this Court’s general
jurisdiction over Hydrol and Pierce in response. As to specific jurisdiction, the plaintiffs
argue in their brief in opposition that “Plaintiff [Patricia O’Connor] alleges that Hydrol
[and Pierce] sold [their] product[s] to her in New Jersey,” and argue that the complaint
contains those allegations in paragraphs 4, 7, and 8. (Dkt. 10 at 9; dkt. 18 at 9.)
But the plaintiffs’ argument here is without merit, as those paragraphs do not
contain any allegations that Hydrol and Pierce sold their products to Patricia O’Connor
for use in New Jersey. The Court will quote paragraphs 4, 7, and 8 in full:
4. Plaintiff, Patricia O’Connor, a funeral director, is a resident of the
State of New Jersey.
7. Defendant, Pierce Companies, is a chemical company engaged in
the business of creating, manufacturing, marketing, distributing, labeling,
researching, developing and selling embalming chemical products and
other chemicals and supplies used by morticians and funeral homes,
including, but not limited to the following products: Powertone (36 Index);
and others.
8. Defendant, Hydrol Chemical Company, is a chemical company
engaged in the business of creating, manufacturing. marketing, distributing,
labeling, researching, developing and selling embalming chemical products
and other chemicals and supplies used by morticians and funeral homes,
including, but not limited to the following products: Saturol; and others.
(Dkt. 1-1 at 3—4.) Those paragraphs do not contain the allegations concerning specific

6

jurisdiction that the plaintiffs now argue that they contain. Thus, the plaintiffs have failed
to even assert basic allegations concerning personal jurisdiction in the complaint.
The plaintiffs also argue the following in support of specific jurisdiction over
Hydrol and Pierce:
In the matter at Bar, the cause of action is clearly related to Hydrol’s [and
Pierce’s] contact[s] with New Jersey. Inverting the allegations, if Hydrol’s
product [and Pierce’s product] were not within the State, [they] would not
have caused or contributed to Plaintiffs cancer.
(Dkt. 10 at 10; dkt. 18 at 10.) However, because the plaintiffs have failed to submit
affidavits or other proof to support their arguments that the Court has personal
jurisdiction over Hydrol and Pierce, that aforementioned argument is the epitome of a
“mere conclusory statement{],” and it simply will not suffice to give rise to personal
jurisdiction. Igbal, 556 U.S. at 678. There is not one allegation in the complaint that
specifically asserts that Patricia O’Connor used the products at issue while working for a
specific employer during a specific timefrarne in New Jersey, and thus the complaint does
not assert that her alleged injuries unquestionably arose out of or are related to at least
one specific activity that the defendants purposely directed toward New Jersey. $ç
Daimler AG v. Bauman, 134 S.Ct. 746, 754—55 (2014); Marten v. Godwin, 499 F.3d 290,
296 (3d Cir. 2007).
To the extent that the plaintiffs may be attempting to amend their personal
jurisdiction allegations through their briefs in opposition, rather than by seeking to file a

7

proper amended complaint, that is improper. See Hughes v. United Parcel Serv., Inc.,
639 fed.Appx. 99, 104 (3d Cir. 2016); Scott v. Cohen, 528 Fed.Appx. 150, 152 (3d Cir.
20 13).
Therefore, the Court will grant the parts of the motions filed by Hydrol and Pierce
that seek to dismiss the complaint for lack of personal jurisdiction. However, the Court
will dismiss the complaint without prejudice, and give the plaintiffs an opportunity to file
an amended complaint that establishes a basis for personal jurisdiction over Hydrol and
Pierce. See Lee-Peckharn v. Runa, LLC, No. 14-6635, 2015 WL 150120, at *3 (D.N.J.
Jan. 12, 2015) (doing the same in granting a motion to dismiss for lack of personal
jurisdiction). The plaintiffs are hereby advised that they must specifically assert the basis
for personal jurisdiction in the amended complaint, and that they must not rely on
conclusory statements.
II.

Relief Pursuant To Rule 12(b)(6)
The Court also agrees with Hydrol and Pierce that the plaintiffs have presented a

complaint that suffers from deficiencies concerning basic pleading standards in support
of their causes of action. Indeed, the deficiencies in the plaintiffs’ factual allegations
mirror the deficiencies in the plaintiffs’ personal jurisdiction allegations. In response to
the defendants’ arguments, the plaintiffs merely argue that their allegations are sufficient,
and that the “complaint speaks for itself to the extent that it alleges that Plaintiff [Patricia

o Connor] was exposed to Hydrol’ s [and Pierce’s] formaldehyde-containing product[s].”
‘

(Dkt. 10 at 15; dkt. 18 at 16.)

8

The plaintiffs have failed to provide the defendants with an opportunity to
meaningfully respond to the allegations, because they have not alleged when, where, or
even if Patricia O’Connor used the defendants’ products. They raise nothing “more than
a sheer possibility that [the] defendant[s] ha[ve] acted unlawfully.” Igbal, 556 U.S. at
678. Although the heightened pleading standards of Iqbal and Twombly do not require
detailed factual allegations, the factual allegations presented by the plaintiffs in this
instance “will not do,” as they “stopt] short of the line between possibility and
plausibility.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quotation
marks and citation omitted).
The plaintiffs’ complaint must contain more than “unadorned, the-defendant
unlawfully-harmed-me accusation[s].” Id. (citation omitted). In this instance, the
complaint completely lacks even one specific allegation that the defendants unlawfully
harmed the plaintiffs. In other words, the plaintiffs do not specifically allege the
wrongdoing for which each defendant is liable. As set forth by the Third Circuit Court of
Appeals:
the mere metaphysical possibility that some plaintiff could prove some set
of facts in support of the pleaded claims is insufficient; the complaint must
give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (case citation omitted;
relying upon Rule 8(a)(2)).

9

The plaintiffs must assert when and where Patricia O’Connor was exposed to the
formaldehyde that is allegedly found in the defendants’ products, and that she was injured
thereby. See In re Shop-Vac Marketing & Sales Practices Litig., 964 F.Supp.2d 355, 363
(M.D. Pa. Aug. 9, 2013) (granting a motion under Rule 12(b)(6) to dismiss consumerfraud and breach-of-warranty claims, because plaintiffs failed to allege in the complaint
“when they purchased [the products at issue],” which they were required to do “[a]t a
minimum”); see also Jones v. Clark County Sch. Dist., No. 15-0010, 2016 WL 1270996,
at *2_3 (D. Nev. Mar. 31, 2016) (granting a motion under Rule 1 2(b)(6) to dismiss
harassment and constructive-discharge claims, because plaintiff “does not allege any
dates on which [the allegedly offensive conduct] occurred”); Rowan v. Haiyasaki, No.
14-197, 2014 WL 2452528, at *3 (D. Haw. May 30, 2014) (dismissing claims brought
under 42 U.S.C.

§

1983, because “tw]ithout dates or specific allegations stating what

each Defendant did and when, Plaintiffs Complaint does not state a plausible claim for
relief on its face”); Hurnphreys v. Equifax Info. Servs., LLC, No. 08-492, 2009 WL
3615072, at *1 (D. Utah 2009) (granting a motion under Rule 12(b)(6) to dismiss Fair
Credit Reporting Act and Fair Debt Collection Practices Act claims, because plaintiff
“gives no dates or specific instances to back up th{e] allegation” that defendant failed to
respond to the dispute at issue).
Therefore, the Court will grant the parts of the motions filed by Hydrol and Pierce
that seek to dismiss the complaint for failure to state a claim. But in the interests of
justice and to be consistent with the aforementioned detennination on the issue of

10

personal jurisdiction, the Court will dismiss the plaintiffs’ claims without prejudice. In
addition, the Court will give the plaintiffs an opportunity to file an amended complaint
that contains proper factual allegations that establish a cause of action against the
defendants.

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1435 (3d Cir.

1997) (stating that when a district court finds that a complaint in its current form cannot
survive a motion under Rule 12(b)(6) due to the plaintiffs deficient allegations, the
district court should grant leave to amend if the plaintiff can address the deficiencies in
an amended complaint); see also Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
Cir. 2002) (stating that a district court should grant leave to a plaintiff to amend a
complaint that has been dismissed under Rule I 2(b)(6) within a set period of time, unless
permitting an amendment would be inequitable or futile).
For instance, the plaintiffs should at least allege in the amended complaint that
Patricia O’Connor used the defendants’ products, as well as the manner in which she
used the products, during the course of her employment with specifically-alleged
employers during a specifically-alleged timefrarne, and that she was exposed to
formaldehyde and developed leukemia as a result. This is particularly appropriate for the
plaintiffs’ claims that allege fraudulent misrepresentation and consumer fraud, which are
subject to a heightened pleading standard. $çç Fed.R.Civ.P. 9(b); see also Frederico v.
Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (stating that a “plaintiff must plead or
allege the date, time and place of the alleged fraud or otherwise inject precision or some
measure of substantiation into a fraud allegation”); In re Burlington Coat factory Sec.

11

Litig., 114 F.3d at 1422 (stating that a fraud claim must include “the ‘who, what, when,
where and how’ elements”); JWO Cabinetry Inc. v. Granada Wood & Cabinets Inc., No.
13-4110, 2015 WL 1189577, at *6_8 (D.N.J. Mar. 16, 2015) (stating the same concerning
NJCFA and common law fraud claims).
III.

NJCFA Claim

The Court, although granting general relief under Rule 12(b)(6), will address the
requests filed by all three defendants that seek dismissal of the plaintiffs’ consumer fraud
claim on the ground that the defendants’ products, i.e., embalming products, are not the
kind of merchandise covered by the NJCFA. They argue that those products are not
covered by the NJCFA because they are not generally sold to the public at large, and that
they are specialty items that are only sold to those involved in the funeral industry.

(Scc

dkt. 7-6 at 23—24; dkt. 9 at 1; dkt. 13 at 22—23.)
The NJCFA makes it an unlawful practice to use “any unconscionable commercial
practice, deception, fraud, false pretense, false promise, misrepresentation, or the
knowing, concealment, suppression, or omission of any material fact with intent that
others rely upon such concealment, suppression or omission, in connection with the sale
or advertisement of any merchandise.” See N.J.S.A. 56:8-2. The term “merchandise” is
defined by the NJCFA as “any objects, wares, goods, commodities, services or anything
offered, directly or indirectly to the public for sale.” N.J.S.A. 56:8-1(c).
The defendants’ arguments on this issue are without merit. The Court comes to
this conclusion based upon persuasive authority found in the case of Viking Yacht

12

Company v. Composites One LLC, 496 F.Supp.2d 462 (D.N.J. 2007). n that case, the
manufacturers of recreational motor yachts asserted a claim under the NJCFA against the
maker of a gel coat that they used to seal the hulls of yachts that were being
manufactured for sale. The yacht manufacturers alleged that the gel coat cracked
prematurely on many of the hulls, and that the gel coat failed to act as a barrier to prevent
water and other materials from damaging the yachts. The gel-coat maker argued that the
gel coat was not merchandise covered by the NJCFA, because the gel coat was not mass
produced for sale to the general public, and because it was not a product that the average
person would know how to use. The court rejected that argument, and held that the
NJCFA is expressly not limited to protecting those who buy items for personal, family, or
household use, and that there is no requirement that the average person know how to use
a product for it to be considered “merchandise” under the NJCFA.

ich at 473 n. 19. That

court thus held that the yacht manufacturers, in their position as the buyers of gel coat,
could assert a claim under the NJCFA against the gel-coat maker for the allegedly faulty
merchandise.
The court in Viking Yacht Company acknowledged that situations that involve
wholesalers buying merchandise for resale to the public are not covered by the NJCFA.
However, the court went on to state that the yacht manufacturers bought the gel coat for
their own use in manufacturing the yachts, and that they were not buying the gel coat for
the purposes of reselling it to the public, and thus they could assert a claim under the
NJCFA. The court held that the yacht manufacturers:

13

remove gel coat from the containers in which it is sold and use it as a
component part in the manufacture of boats. Plaintiffs then offer these
boats, whose outer layer is composed of gel coat, for sale to the public.
Thus, Plaintiffs consume the gel coat in the same sense that any purchaser
who opens a product from its packaging and uses the product consumes it.
Plaintiffs here undeniably did more than simply re-package the gel coat for
resale. Afier Plaintiffs applied the gel coat to the boats, they could not have
turned around and re-sold the gel coat in its original state. The gel coat
became part of a greater product sold by Plaintiffs. Thus, due to Plaintiffs’
use of the gel coat prior to sale, we hold that Plaintiffs diminished the value
of the gel coat and are “consumers” under the {NJCFA].
Id. at 474—75. The situation in the instant case is similar, because the defendants’
products are purchased by those involved in the funeral industry in order to perfonTi
funeral services, and those products are not turned around and re-sold. See also
Stockroom, Inc. v. Dydacomp Dev. Corp., 941 F.Supp.2d 537, 543—45 (D.N.J. 2013)
(finding that a retailer of “adult-themed products” could maintain a claim under the
NJCFA against a software company that sold it an allegedly faulty credit card processing
system, because (a) the NJCFA applies to the sale of standardized merchandise for use in
business operations, and (b) the retailer was a consumer that purchased the system for
consumption, and not a wholesaler that purchased it for resale). Therefore, the Court
finds that the defendants’ embalming products are merchandise covered by the NJCFA.
The Court offers no further opinion at this juncture on whether the NJCFA claim is

14

dismissible on other grounds.3
CONCLUSION
Given the manner in which the plaintiffs have drafted their complaint, the Court is

compelled to dismiss it. The Court will thus grant the separate motions to the extent that
the defendants argue that the plaintiffs have failed to meet the basic pleading
requirements concerning their personal jurisdiction allegations and all of their causes of
action. The Court will do so without prejudice to the plaintiffs to meet these standards in
an amended complaint.
In drafting an amended complaint, the plaintiffs should plead specific facts that
would establish personal jurisdiction over each defendant, and that would allow the court
to draw the reasonable inference that the defendants are liable for the causes of action.

See Lee-Peckham, 2015 WL 150120, at *3 (directing the same when granting a motion to
dismiss under Rule 12(b)(2) and Rule 12(b)(6), and dismissing the complaint without
prejudice). The defendants will then be “free to reassert [their] remaining arguments in
support of dismissal.

.

.

once [the plaintiffs] ha[ve] filed an Amended Complaint in

Dodge, in seeking to dismiss the NJCFA claim, relied on the arguments presented in
Hydrol’s brief However, Hydrol’s brief addresses the one Hydrol product that is listed in the
complaint, and makes no mention of the approximately 35 allegedly offending products
manufactured by Dodge that the plaintiffs list in the complaint. ($ dkt. 7-6 at 31—32.)
Assuming that the plaintiffs file an amended complaint, and assuming that Dodge engages in
dispositive motion practice thereafier, Dodge should specifically address the merits of the
plaintiffs’ claims insofar as they pertain to Dodge’s products.

15

_________

accordance with the directives set forth above,” if appropriate. j The Court will issue
an appropriate order.

L. LINARES
States District Judge

Dated: November

,

2016

16