Monticelli v. Wal-Mart Stores East, LP et al
Filing
16
DECISION AND ORDER denying Deft IQ's 6 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Thomas J. McAvoy on 9/20/12. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------JAMES H. MONTICELLI, as Administrator of
the Estate of JAMES W. MONTICELLI,
Plaintiff,
v.
5:12-cv-1274
WAL-MART STORES EAST, LP, IQ
PRODUCTS COMPANY,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff James H. Monticelli, as administrator of the estate of James W. Monticelli,
commenced the instant action seeking to recover damages for injuries to, and the resulting
death of, James W. Monticelli arising out of his inhalation of a product made by Defendant IQ
Products Company and sold by Defendant Wal-Mart Stores East, LP.
I.
FACTS
The Amended Complaint alleges the following facts which, for purposes of the
pending motion to dismiss, are assumed to be true.
On numerous occasions prior to September 28, 2010, James W. Monticelli
purchased large quantities of canned dust remover with the brand name “CleanSafe” from
Defendant Wal-Mart Stores, Inc. (“Wal-Mart”). CleanSafe is manufactured by Defendant IQ
Products Company (“IQ”). Monticelli was seriously injured on September 28, 2010, resulting
in his death.1 The administrator of the estate of Monticelli commenced the instant action
seeking compensation for Monticelli’s pain and suffering and wrongful death. Briefly stated, it
is claimed that Wal-Mart negligently sold large quantities of CleanSafe. It is further claimed
that IQ knew that CleanSfae was commonly abused by individuals as an inhalant capable of
producing psychoactive effects but failed to add sufficient quantities of deterrent or bittergent
to deter inhalant abuse. Presently before the Court is Defendant IQ’s motion to dismiss
pursuant to Fed. R. Civ. P. 12 seeking dismissal of the claims against it.
II.
STANDARD OF REVIEW
In deciding a motion under Rule 12(b)(6),
[the court] will accept all factual allegations in the [C]omplaint as true and draw all
reasonable inferences in [Plaintiff's] favor.” Johnson v. Rowley, 569 F.3d 40, 43
(2d Cir. 2009) (quotation marks and citation omitted).
In Ashcroft v. Iqbal, the Supreme Court set forth a “two-pronged approach” to
evaluate the sufficiency of a complaint. 129 S.Ct. at 1949-50. “First, although a
court must accept as true all of the allegations contained in a complaint, that tenet
is inapplicable to legal conclusions, and threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quotation marks and alterations omitted).
“Second, only a complaint that states a plausible claim for relief survives a motion
to dismiss, and determining whether a complaint states a plausible claim for relief
will ... be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. (quotation marks and alteration
omitted). “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,
129 S. Ct. at 1949 (quotation marks omitted). Plausibility thus depends on a host
of considerations: the full factual picture presented by the complaint, the particular
cause of action and its elements, and the existence of alternative explanations so
obvious that they render plaintiff's inferences unreasonable. See id. at 1947-52.
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429-30 (2d Cir. 2011).
1
Although the Amended Complaint does not explicitly state how Monticelli was injured in
connection with the use of CleanSafe, it can reasonably be inferred from his claims and allegations that
he intentionally inhaled it for its psychoactive effects.
-2-
III.
DISCUSSION
Defendant IQ moves to dismiss on the grounds that: (i) because the decedent was
engaging in an illegal act (possessing and using cocaine) that contributed to his injuries and
resulting death, he is precluded as a matter of law from recovering in tort; and (ii) the cocaine
use was a superceding cause of injury.
Where “a plaintiff has engaged in unlawful conduct, the courts will not entertain suit
if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the
plaintiff seeks recovery are the direct result of that violation.” Manning v. Brown, 91 N.Y.2d
116, 120 (1997); see also Barker v. Kallash, 63 N.Y.2d 19. “The policy derives from the rule
that one may not profit from one’s wrongdoing.” Manning, 91 N.Y.2d at 120. Recovery is
denied because New York State policy “generally denies judicial relief to those injured in the
course of committing a serious criminal act.” Id. Dismissal is not warranted “merely because
the plaintiff’s injuries were occasioned by a criminal act.” Id. “Preclusion is required only
where the plaintiff’s injuries ‘were a direct result of a serious violation of the law involving
hazardous activities which were not justified under the circumstances.’” Id. (quoting Barker,
63 N.Y.2d at 19).
Cocaine use constitutes a serious violation of the law. See People v. Varela, 121
Misc.2d 1051, 1056 (Sup. Ct. New York County) (selling cocaine is a serious offense); Matter
of Kaufman,136 A.D.2d 192, 194 (1st Dep’t 1988) (possession of cocaine is a serious offense
constituting professional misconduct); People v. DiOrio, 99 A.D.2d 593, 594 (3d Dep’t 1984)
(“cocaine use has a serious adverse effect on our society”). If Monticelli was injured inhaling
or otherwise using CleanSafe along with his cocaine use, then there would be a direct
connection between the violation and Plaintiff’s injuries and the rule announced in Manning
-3-
and Barker would be applicable. Even assuming the Court could consider the death
certificate and/or coroner’s report2 on IQ’s motion to dismiss, assuming the facts alleged in
the Complaint as true and drawing all reasonable inferences in Plaintiff’s favor, it cannot be
said at this time that Monticelli was using cocaine at the time he inhaled the CleanSafe and,
therefore, that Monticelli was injured as a direct result of engaging in a serious violation of the
law.3 For this same reason, even though Monticelli may have been found to have had
2
The death certificate lists the immediate cause of death as “MIXED COCAINE AND 1,1DIFLUOROETHANE INTOXICATION.”
3
The materials submitted to the Court strongly support the conclusion that Monticelli did inhale
CleanSafe along with his cocaine use. The evidence concerning the circumstances surrounding
Monticelli’s death (including whether he was using cocaine in connection with CleanSafe) should be
within Plaintiff’s possession and/or knowledge. The Court presumes that Plaintiff will not pursue factual
contentions that are not likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery, Fed. R. Civ. P. 11(b)(3), or legal contentions that are not warranted by existing
law or a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new
law. Fed. R. Civ. P. 11(b)(2). At the appropriate time, Defendants may file a motion for summary
judgment on this issue
(continued...)
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cocaine in his system, the Court cannot conclude at this time that any cocaine use was a
superceding cause of death.
IV.
CONCLUSION
Although it appears likely that Monticelli sustained serious injuries resulting in death
as a result of his using cocaine along with CleanSafe, thereby precluding his claims as a
matter of law, the Court cannot make that determination on the instant motion to dismiss.
Looking at the Amended Complaint in the light most favorable to Plaintiff, it is possible that
Monticelli was not using cocaine in connection with inhaling CleanSafe and, thus, was not
engaging in a serious violation of the law and did not engage in conduct that superceded the
cause of death. Accordingly, Defendant IQ’s motion to dismiss is DENIED.
IT IS SO ORDERED.
Dated: September 20, 2012
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