ROSA GOMEZ v. H&M INTERNATIONAL TRANSPORTATION, INC. et al

Filing 39

OPINION. Signed by Judge Jose L. Linares on 4/24/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARMEN ROSA GOMEZ, Individually, and
as Administrator Ad Pro sequen-dum of the
Estate of Jorge L. Gomez, Deceased,

Civil Action No.: 17-231 (JLL)

OPINION

Plaintiff,
V.

H&M INTERNATIONAL
TRANSPORTATION, [NC.,
Defendant.

LINARES, District Judge.

This matter comes before the Court by way of Defendant Hoist Liftruck Manufacturing,
Inc.’s (“HLM”) motion to dismiss the Complaint filed by Plaintiff Rosa Gomez. Plaintiff has
opposed this motion. (ECF No. 24). Defendants H&M Transport Management (“H&M”) and
fedEx Freight, Inc. (“FedEx”) have also opposed HLM’s motion. (ECF Nos. 26, 27), and HLM
has replied to those oppositions (ECF No. 2$).’

The Court decides this matter without oral

argument pursuant to Federal Rule of Civil Procedure 7$. The Court has reviewed all papers filed
in support of and in opposition to the pending motion, and for the reasons stated herein, Defendant
HLM’s motion to dismiss the Complaint is granted.

‘On April 6, 2017, by way of letter to the Court, Defendant General Cable Industries joined in
the oppositions filed by Plaintiff, H&M, and FedEx. (ECF No. 29).
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I.

Background

Plaintiff Carmen Rosa Gomez (“Plaintiff’) is the surviving wife of decedent Jorge L. Gomez.
(ECF No. 1, “Compi.”

¶

1). This action arises out of an incident that occurred at the Croxton

Intermodal Terminal in Jersey City, New Jersey. (Id.

¶

51). Plaintiff alleges that on August 15,

2016, Mr. Gornez was working at the Terminal “as a lift machine-operator/switcher.” (Id.

¶ 66).

On that date, “[Mr. Gomez] was in the act of transferring intermodal container FDXU 532907
from railcar DTTX 732196(c) on Track E within Croxton Intermodal Terminal, onto Capacity
Jockey Truck #22645, using Hoist Life Truck
boom of the Hoist Lift Truck

—

Loaded Container Handler #28-9347 when the

Loaded Container Handler #28-9347 and the attached intermodal

container FDXU 532907 struck” decedent. (Id.
in Mr. Gomez’s death. (Id.

—

¶ 76).

Plaintiff alleges that this incident resulted

¶ 80).

Plaintiff filed the instant action on January 12, 2017, asserting claims in her own name and
on behalf of Mr. Gomez’s estate. Plaintiff asserts claims against a number of Defendants, each of
which appear to be business entities involved in the commercial railroad industry. (See Compl.

¶J

4-12). Specifically, Plaintiff alleges the following claims: violation of the Federal Employers’
Liability Act (Count I); negligence (Count II); design defect (Count III), manufacturing defect
(Count IV) and failure to warn (Count V) under the New Jersey Products Liability Act; wrongftil
death (Count VI); a survival action (Count VII); and loss of consortium (Count VIII). Plaintiff
also eek punitive damages against Defendants. (Count IX).
Defendant HLM filed the pending motion to dismiss on February 28, 2017. (ECF No. 15,
“HLM Mov. Br.”). Plaintiff, as well as I-ELM’s Co-Defendants, H&M and FedEx, have each
opposed HLM’s motion to dismiss. (ECF No. 24, “PI.’s Br.”; ECF No. 26, “H&M Br.”; ECF No.

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27, “FedEx Br.”).

HLM replied to these oppositions on March 27, 2017. (ECF No. 28. “HLM

Reply Br.”). This motion is now ripe for the Court’s adjudication.
II.

Legal Standard
For a complaitit to survive dismissal. it must contain sufficient factual matter. accepted as

true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 62, 67$
(2009) (citing Belt Ati. Corp.

V.

Twomblv, 550 U.S. 544, 570 (2007)).

In determining the

sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the
complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips
v. Cnty. ofAttegheiiy, 515 f.3d 224, 234 (3d Cir. 2008). Additionally, in evaluating a plaintiffs
claims, generally “a court looks only to the facts alleged in the complaint and its attachments
without reference to other parts of the record.” Jordan v. Fox, Rothschild, 0 Brie;i & Frank-el, 20
f.3d 1250, 1261 (3d Cir. 1994).
III.

Discussion
a. Negligence (Count II)

In Count II of the Complaint, Plaintiff asserts a claim of negligence against the following
Defendants: H&M, Norfolk Southern Corporation, Consolidated Rail Corporation, Technical
Services International, MI-Jack Products, Inc., HLM, F edEx, General Cable Industries, Inc. and
PMX Industries, Inc. (Compl. at 17). HLM argues that dismissal of Plaintiffs negligence claim
is warranted because same is precluded by Plaintiffs NJPLA claims and because Plaintiff has
failed to specifically plead any allegations of negligence as against HLM in particular. (HLM’s
Mov. Br. at 8; HLM’s Reply Br. at 8). The Court agrees that Plaintiffs negligence claim is
deficient in both regards.

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A plaintiff asserting a claim under the New Jersey Products Liability Act (“NJPLA”) foregoes
the ability to recover under any other theory of liability as it relates to the defective product.
N.J.S.A. 2A:5$C—l(b)(3). The language of the PLA makes it clear the Act is the only vehicle a
plaintiff may use to recover for a product liability action, expressly providing that:

‘any

claim or

action for harm caused by a product, irrespective ofthe theoiy ttnderlying the claim, except actions
for harm caused by breach of an express tvarranty” calls cinder the ambit of the Act. Id. (emphasis
added); Repola v. Morbarklnthts., Inc., 934 F.2d 483, 492 (3d Cir. 1991) ([IJt [is] clear that [the
PLA]

.

.

.

effectively creates an exclusive statutory cause of action for claims falling within its

purview.”). Furthermore, New Jersey courts have expressly held that “tt]he [PLAJ no longer
recognizes negligence or breach of warranty (with the exception of express warranty) as a viable
separate claim for ‘harm’

.

.

.

caused by a defective product.” Tirrelt v. Navistar Int’l, Inc., 248

N.J. Super. 390, 39$ (N.J. Super. Ct. App. Div. 1991); see Reffv. Convergent Tech., 957 F. Supp.
573, 583 (D.N.J. 1997)(”Under New Jersey products liability law, negligence and breach of
warranty are no longer viable as separate claims for harm caused by a defective product.”);
Oquendo v. Bettcherlnthts., Inc., 939 F. Supp. 357, 361 (D.N.J. 1996)(same).
According to Plaintiff, the “claims for negligence should not be subsumed by Plaintiffs

product liability claims as the negligent conduct arises from entirely separate circumstances and is
properly pleaded to include other negligent conduct on the part of Defendant, not inherent to the
product itself” (Pl.’s Br. at 16). Specifically, Plaintiff argues that the negligence claims pertain
to HLM’s “maintenance, repair, inspection and modification of the Hoist Lift Ircick.” (Id.).
Yet, nowhere in the Complaint does Plaintiff assert negligence in the maintenance, repair,
inspection or modification of the tmck on the part of HLM. Rather, and as HLM notes, Plaintiff
alleges negligence as against nine Defendants, but fails to differentiate between the conduct of any

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of these Defendants. (HLM’s Reply Br. at 8). That is, each allegation of negligence is asserted
against “the answering Defendant” as opposed to any particular Defendant and nowhere in the
Complaint has Pishitiff identified who “the answering Defendant” is. Not only does this pleading
deficiency fail to properly apprise each of the Defendants as to the allegations against them, but it
also results in nonsensical pleadings. For example, in subsequent pamgmphs of the Complaint
Plaintiffsates that “the answering Defendant was the lessee ofthe Hoist Lift Tmck” and that “the
answering Defendant was the lessor ofthe Hoist Lift Tnjct” (Compl. ¶ 111,112).
The Opposing Parties attempt to cure this hal pleading deficiency by relying on an attachment
to Plaintiff’s brief in opposition to the pending motion to dismiss. (Pl.’s Br. at 16; FedEx Br. at 8;
H&M Br. at 5). Plaintiffrelies upon this document as evidence of HLM’s agreement to repair and
replace various aspects ofthe machines, which, according to Plaintiff“allow[s] for a separate claim
for negligence to proceed.” (Pl.’s Br. at 16). The Court declines to consider this docwnent for the
purposes of this motion. “[M]atters extraneous to the pleadings” are not normally considered on
a motion to dismiss unless they are “integral to or explicitly relied upon in the complaint” West
Pam Allegheny Health Sys., Inc.

t

UPMC, 627 F.3d 85, 97 (3d Cfr. 2010). In this case, the

“agreement” now relied upon by the Opposing Parties was not “integral to or explicitly relied upon

in the complaint,” nor was it attached to that pleading. Plaintiff cannot attempt to amend the
pleading through the filing ofa newly-identified exhibit Therefore, the Cowl declines to consider
the implications, ifany, ofthe agreement on Plaintiff’s ability to assert a claim for negligence that
is sufficient distinct from her NJPTA clsimR.
For all ofthe above reasons, Defendant HLM’s motion to dismiss Plaintiff’s negligence claim
is

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b. New Jersey Products Llabifity Ad (Counts ffl W, V)

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HLM

argues

that Plaintiffs claims tinder the NJPLA must be dismissed because the

Complaint does not allege the requisite facts to support these claims. (l-ILM’s Mov. Br. at 9-1 1).
The Court agrees.
At the outset, the Court notes that Plaintiffs claims under the NJPLA suffer from the same
deficiency as the negligence claim. That is, despite the fact that Plaintiff has brought her three
products liability claims against three separate Defendants—Technical Services International, MiJack Products Inc., and HLM—the Complaint fails to plead specific allegations against the
separate Defendants.

Instead, all allegations are asserted against the unidentified “answering

Defendant” or “Defendant.” (See Compl. at 27-3 5). In other words, Plaintiff has failed to put
HLM on notice as to which allegations are asserted against HLM as opposed to Technical Services
International or Mi-Jack Products, Inc. for this reason alone, counts Ill, IV and V of Plaintiffs
Complaint are stibject to dismissal.
In any event, even if Plaintiff had pled allegations as against Defendant HLM specifically,
the Complaint would nonetheless fail to state a claim under the NJPLA. The NJPLA provides for
liability on the part of the manufacturer or seller of a product upon a showing that the product
contained a manufacturing defect or a design defect, or upon a showing of a failure to warn.
N.J.S.A. 2A:58C-2.
Here, the Complaint is completely devoid of any factual allegations tending to support a
products liability claim. Instead, the Complaint contains conclusory language modeled off the
causes of action for design defect, manufacturing defect, and failure to warn. For example, a
plaintiff asserting a claim under the NJPLA “must prove that the product was defective, that the
defect could cause injury to a reasonably foreseeable user, and that the defect was the proximate
cause of the plaintiffs darnages.’ London v. Lcclerle Laboratories, Div. ojAinerican Cyanwnid

6

Co., 290 N.J. Super 318, 326-327 (N.J. Sup. Ct. App. Div. 1996). A product is defective if it is
not “reasonably fit. suitable and safe for its intended use or foreseeable purposes.” Id. (quotations
omitted).
Here, Plaintiff summarily alleges that the “Hoist Lift Truck

—

Loaded Container Handler

#28-9347 is defective in its design or formulation in that it is not reasonably fit, suitable or safe
for its intended purpose and/or its foreseeable risks exceed the benefits associated with its design
and formulation.” (Compl.

¶ 204).

Plaintiff thereafter offers more conclusoiy allegations that the

product was “defective.” However, nowhere does Plaintiff offer any specific factual allegations
explaining how the product at issue is or was, in fact, “defective.” Instead, Plaintiffs Complaint
contains “a formulaic recitation of the elements of a cause of action,” which pleading tvill not stand
against a motion to dismiss for failure to state a claim. Twombly. 550 U.S. at 555.
Plaintiffs Derivative Claims (Counts VI, VII, VIII, IX)

c.

Finally, FILM moves for dismissal as to Plaintiffs claims for wrongful death, survival
action, loss of consortium and for punitive damages. Specifically, HLM maintains that because
these claims are derivative of the NJPLA and negligence claims, dismissal of those claims is
warranted.

The Court agrees.

That is, in the absence of underlying substantive allegations,

Plaintiffs claims fot wrongful death, survival action, loss of consortium and for punitive damages
cannot stand. See, e.g., Smith v. Whitaker, 160 N.J. 221, 233 (1999) (explaining that “a wrongful
death action

.

.

.

is a derivative action arising in favor of beneficiaries named under that act” and

that a claim under the “Survival Act preserves to the decedent’s estate any personal cause of action
that decedent would have had if he or she had survived”): Finley v. NR Coip., 964 F. Supp. 882,
$89 (D.N.]. 1996) (“Loss of consortium is a derivative claim which depends for its sustenance
upon a viable tort claim of the spouse.”).

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____,

IV.

Coticlusion

For the reasons stated herein, HLM’s motion to dismiss the Complaint is granted. The
Court, therefore, dismisses Plaintiffs claims as against HLM, without prejudice to Plaintiff filing
an amended pleading that cures the deficiencies identified herein.

An appropriate Order

accompanies this Opinion.
IT IS SO ORDERED.

DATED:

April

2017

J

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L. .LINARES, U.S.D.J.