AGABITI v. HOME DEPOT CORPORATION et al
Filing
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OPINION. Signed by Judge Joel A. Pisano on 9/9/2014. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CECELIA AGABITI,
Plaintiff,
v.
HOME DEPOT CORPORATION, UNKNOWN
ASSAILANT, SEDGWICK INSURANCE,
Defendants.
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Civil Action No. 13-cv-4499 (JAP)
OPINION
PISANO, District Judge
Presently before the Court are Defendant, Home Depot U.S.A., Inc.’s (“Defendant” or
“Home Depot”) motions to dismiss Plaintiff, Cecelia Agabiti’s (“Plaintiff”) Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) [docket #25 and #57], Plaintiff’s motion to file
indictable charges against Defendant’s attorneys [docket #55], and Defendant’s motion to bar
Plaintiff from filing defamatory or harassing communications [docket #56]. The parties oppose
these respective motions. The Court considered the papers filed by the parties and rules on the
written submissions without oral argument pursuant to Federal Rule of Civil Procedure 78. For
the reasons that follow, this Court GRANTS Defendant’s motions to dismiss [docket #25 and #57],
and DENIES, without prejudice, Plaintiff’s motion to file indictable charges against Defendant’s
attorneys [docket #55] and Defendant’s motion to bar Plaintiff from filing defamatory or harassing
communications [docket #56] as these motions are now moot.
I.
BACKGROUND
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Plaintiff’s pro se Complaint, received by the Court on July 25, 2013 [docket #1] arguably
consists of one (1) cause of action for negligence. The claim in Plaintiff’s Complaint suffers from
vagueness and ambiguity that makes it difficult to discern its legal basis. The following allegations
are taken from Plaintiff’s Complaint and are accepted as true for purposes of this Court’s review
only.
Plaintiff’s claim arises out of an incident that occurred at Home Depot in Hamilton
Township, New Jersey, on August 27, 2011. Complaint (“Compl.”), at p. 1. Plaintiff was in the
Defendant’s store standing at a table in the main aisle when she was hit in the left leg by a flat-bed
metal cart being pushed by an unknown consumer, causing her to fall and land on her right
shoulder. Compl., at p. 2. Plaintiff alleges that she suffered a communicated [sic] fracture of the
humerus bone in her upper right shoulder, a sprained left ankle, and bruises and abrasions on her
arms and legs. Compl., at pp. 2-3. After Plaintiff fell, a Home Depot employee asked her for
emergency contact information and assured Plaintiff that an ambulance was on its way. Compl.,
at p. 2. Plaintiff alleges that, despite being in close proximity to the unknown consumer who hit
her with the cart, Defendant’s employee failed to ask the customer for his identification and let
him leave the store. Compl., at pp. 2-3.
Subsequent to the accident, Plaintiff was transported to Robert Wood Johnson University
Hospital where she was treated for her injuries. Compl., at p. 3. Thereafter, Plaintiff visited Doctor
Joshua Hornstein, an orthopedic doctor who prescribed physical therapy for Plaintiff’s shoulder.
Compl., at p. 4. However, Plaintiff did not have health insurance and alleges that her attorney at
the time failed to challenge the rehab center or Sedgwick Insurance1 to ensure that she would
receive the proper treatment. Compl., at p. 4. Thereafter, Plaintiff filed this lawsuit.
According to Plaintiff’s Civil Case Information Statement, Sedgwick Insurance is Home Depot’s primary insurance
company.
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II.
DISCUSSION
a. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if the
plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under
Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” This pleading standard does not require
“detailed factual allegations,” but it does require “more than labels and conclusions”; a “formulaic
recitation of the elements of a cause of action” will not suffice. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007). Therefore, in order to withstand
a motion to dismiss pursuant to 12(b)(6), “a complaint 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. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The plausibility standard is satisfied “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. The plausibility standard is not a “probability requirement,” but “it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. To decide if a complaint meets this
plausibility standard and therefore, survives a motion to dismiss, the Third Circuit has required a
three step analysis: (1) the Court must “outline the elements a plaintiff must plead to . . . state a
claim for relief”; (2) the Court must identify “those allegations that are no more than conclusions
and thus not entitled to the assumption of truth”; and (3) “where there are well-pleaded factual
allegations, [the Court] should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012); Santiago
v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). This Court is mindful, however, that the
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sufficiency of a pro se pleading must be construed liberally in favor of Plaintiff. See Erickson v.
Pardus, 551 U.S. 89, 94-95 (2007). Moreover, a court should not dismiss a complaint with
prejudice for failure to state a claim without granting leave to amend, unless it finds bad faith,
undue delay, prejudice or futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d
Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000).
b. Analysis
It is axiomatic that a claim for negligence is comprised of four (4) essential elements: (1)
duty of care; (2) a breach of that duty; (3) proximate cause; and (4) damages suffered by the
plaintiff. Filipowicz v. Diletto, 350 N.J. Super. 552, 558, 796 A.2d 296, 299 (App. Div. 2002).
Stated differently, “a cause of action founded in negligence involves a breach of a duty of care that
causes injury.” Weinberg v. Dinger, 106 N.J. 469, 484, 524 A.2d 366, 373 (1987). Further, a
plaintiff seeking to recover for another’s negligence has the burden of proving that the Defendant’s
negligence was a factor in causing the loss. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39
N.J. 382, 393, 189 A.2d 7, 13 (1963); Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 74
(1996) (citing Long v. Landy, 35 N.J. 44, 171 A.2d 1, 6 (1961) and Hansen v. Eagle-Pitcher Lead
Co., 8 N.J. 133, 84 A.2d 281, 284 (1951)).
Even after taking into account Plaintiff's pro se status and reading the Complaint liberally,
the Court finds that Plaintiff's pleadings lack a “short and plain statement” of the grounds for her
negligence claim and fail to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
678. Plaintiff’s pleading contains mostly allegations surrounding the nature and extent of her
injuries, the treatment she received, and the pain she continues to experience thereafter.
Importantly, however, nowhere in Plaintiff’s Complaint is a statement indicating that Home Depot
acted or failed to act in accordance with any duty owed to Plaintiff.
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Merely stating that
Defendant’s employee failed to ask the unknown customer for his identification after the incident
hardly establishes plausibility that Home Depot was negligent or breached any duty owed to
Plaintiff. As such, Plaintiff’s Complaint fails to provide Home Depot with fair or adequate notice
of the claims against it or establish that Plaintiff is entitled to relief as required by Federal Rule of
Civil Procedure 8(a)(2). Accordingly, the Court finds that the deficiencies in Plaintiff’s pleading
warrant dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).2
III.
CONCLUSION
For the foregoing reasons, Home Depot’s motions to dismiss [docket #25 and #57] are
GRANTED and Plaintiff’s Complaint is DISMISSED, without prejudice. Plaintiff shall have
thirty (30) days from the date of entry of the Order accompanying this Opinion to file an amended
complaint that contains a “short and plaint statement of the claim” showing she is entitled to relief
as required by Federal Rule of Civil Procedure 8(a). Further, Plaintiff’s motion to file indictable
charges against Defendant’s attorneys [docket #55] and Defendant’s motion to bar Plaintiff from
filing defamatory or harassing communications3 [docket #56] are DENIED, without prejudice, as
these motions are now moot. An appropriate Order accompanies this Opinion.
Date: September 9, 2014
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Plaintiff also asserts a claim against Sedgwick Insurance, who is allegedly Home Depot’s primary insurance carrier.
Plaintiff merely states that Sedgwick Insurance failed to ensure that she received the proper treatment for her injuries.
It does not appear that Sedgwick Insurance has entered a notice of appearance or participated in this action. In any
event, given that Plaintiff has failed to state a plausible claim as against Home Depot, there can be no obligation to
indemnify on the part of its carrier. See Garden State Fire & Cas. Co. v. Commercial Union Ins. Co., 176 N.J. Super.
301, 307, 422 A.2d 1327, 1331 (App. Div. 1980). As such, Plaintiff’s claim against Sedgwick Insurance must also be
dismissed.
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To the extent that Plaintiff files an amended Complaint within thirty (30) days from entry of this Order and Defendant
renews its motion to bar Plaintiff from filing defamatory or harassing communications, the Court urges Defendant to
review Federal Rule of Civil Procedure 11 prior to renewing its motion, as the Rule applies to pro se parties and
appears to encompass the recourse Defendant is seeking.
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