Clark v. Dematic Corp. et al

Filing 45

MEMORANDUM-DECISION and ORDER: ORDERED that 1. Plaintiff's cross-motion for leave to file an amended complaint is GRANTED; 2. The Litton and Northrop Grumman defendants' motion to dismiss is DENIED; 3. The Dematic and HK Systems defe ndants' motion to dismiss is DENIED; 4. Defendant Western Atlas Inc.'s motion to dismiss is DENIED; 5. The Designed Conveyor defendants' motion to dismiss is DENIED; 6. The Clerk of the Court is directed to file the First Amende d Complaint and photographs attached thereto (ECF No. 30-5) as the operative pleading; and 7. Defendants shall file an answer to the First Amended Complaint on or before December 5, 2014. IT IS SO ORDERED by Judge David N. Hurd on 11/14/2014. (ptm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------BRANDON R. CLARK,
Plaintiff,
-v-

5:14-CV-750

DEMATIC CORP.; DEMATIC NORTH
AMERICA; HK SYSTEMS, INC.; HK
SYSTEMS UHS; LITTON SYSTEMS, INC.;
LITTON SYSTEMS INTERNATIONAL, INC.;
LITTON UNIT HANDLING SYSTEMS, a
Division of Litton Systems, Inc.; NORTHROP
GRUMMAN GUIDANCE AND ELECTRONICS
COMPANY, INC.; WESTERN ATLAS INC.,
f/k/a Litton Industrial Automation Systems, Inc.;
DESIGNED CONVEYOR SYSTEMS, INC.;
DESIGNED CONVEYOR SYSTEMS, LLC;
INTERMEC, INC.; and INTERMEC
TECHNOLOGIES CORPORATION,
Defendants.
---------------------------------APPEARANCES:

OF COUNSEL:

PORTER NORDBY HOWE LLP
Attorneys for Plaintiff
125 East Jefferson Street, 11th Floor
Syracuse, NY 13202

ERIC C. NORDBY, ESQ.
MICHAEL SCOTT PORTER, ESQ.

HARRIS BEACH PLLC
Attorneys for Defendants Dematic Corp.;
Dematic North America; HK Systems, Inc.;
and HK Systems UHS
333 West Washington Street, Suite 200
Syracuse, NY 13202

DAVID M. CAPRIOTTI, ESQ.

HARTER SECREST & EMERY LLP
Attorneys for Defendants Litton Systems, Inc.;
Litton Systems International, Inc.; Litton Unit
Handling Systems; and Northrop Grumman
Guidance and Electronics Company, Inc.
1600 Bausch & Lomb Place
Rochester, NY 14604

JEFFREY A. WADSWORTH, ESQ.
RICHARD E. ALEXANDER, ESQ.

CIPRIANI & WERNER, P.C.
Attorneys for Defendant Western Atlas Inc.
409 Lackawanna Avenue, Suite 402
Scranton, PA 18509

MELISSA A. DZIAK, ESQ.

SMITH, SOVIK, KENDRICK & SUGNET, P.C.
Attorneys for Defendants Designed Conveyor
Systems, Inc. and Designed Conveyor
Systems, LLC
250 South Clinton Street, Suite 600
Syracuse, NY 13202

STEVEN W. WILLIAMS, ESQ.
SHANE P. SIMON, ESQ.

OFFICE OF THERESA J. PULEO, ESQ.
Attorneys for Defendants Intermec, Inc. and
Intermec Technologies Corporation
441 South Salina Street, Suite 290
Syracuse, NY 13202

MATTHEW J. ROE, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
This case arises from a workplace accident that occurred at a FedEx facility in
Syracuse, New York, on February 17, 2011. Plaintiff Brandon R. Clark, a FedEx employee,
was injured when his hand became entangled in a conveyor belt system.
On February 17, 2014, Clark filed this action in New York Supreme Court, Onondaga
County, against the following corporate defendants: Dematic Corp. and Dematic North
America ("Dematic"); HK Systems, Inc. and HK Systems UHS ("HK Systems"); Litton
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Systems, Inc., Litton Systems International, Inc., and Litton Unit Handling Systems ("Litton");
Northrop Grumman Guidance and Electronics Co. ("Northrop Grumman"); Western Atlas Inc.
("Western"); Designed Conveyor Systems, Inc. and Designed Conveyor Systems, LLC
("Designed Conveyor"); and Intermec, Inc. and Intermec Technologies Corp. ("Intermec").1
Defendants removed the action to federal court in June 2014. The Litton, Northrop
Grumman, Dematic, HK Systems, Western, and Designed Conveyor defendants have filed a
total of four motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).2 Clark opposes the motions and has filed a cross-motion seeking leave to file an
amended complaint pursuant to Rule 15. All five motions have been fully briefed.
Oral argument was heard in Utica, New York. Decision was reserved.
II. FACTUAL BACKGROUND
The following pertinent facts, taken from the proposed amended complaint, are
assumed true for purposes of the motions to dismiss. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir. 2002).
During the relevant time period, Clark worked as a package handler for FedEx Ground
Package System, Inc. in Syracuse, New York. The FedEx facility had a conveyor system on
which packages were moved about the facility. This system consisted of various parts,
including conveyor belts and metal rollers. Litton designed and manufactured the system

1

Plaintiff also sued "ABC Entities 1–3" in his original complaint, but has removed them from the
proposed amended complaint. Subject matter jurisdiction is based on the complete diversity of the parties
pursuant to 28 U.S.C. § 1332.
2
Litton and Northrop Grumman are represented by the same counsel. Dematic and HK Systems
are represented by the same counsel. Intermec, which answered the complaint in state court and asserted a
cross-claim against the co-defendants for contribution/indemnification, has not filed a motion to dismiss in this
federal action.

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and sold it to FedEx.3 Designed Conveyor installed it at the FedEx facility. Plaintiff does not
know the model number or serial number of the conveyer system.
On February 17, 2011, Clark's right hand became caught in an uncovered gap
between a conveyor belt and a set of metal rollers as he removed a package from the
conveyor system. He suffered serious permanent injuries to fingers on his right hand. Since
the accident, FedEx has installed a plastic guard to cover the gap between the conveyor belt
and the metal rollers.4
III. DISCUSSION
A. Cross-Motion to Amend
Clark seeks leave to file an amended complaint. Leave to amend a pleading should
be freely given "when justice so requires." FED. R. CIV. P. 15(a)(2). Where, as here, a
plaintiff seeks to amend his complaint while a motion to dismiss is pending, a court "has a
variety of ways in which it may deal with the pending motion to dismiss, from denying the
motion as moot to considering the merits of the motion in light of the amended complaint."
Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F. Supp. 2d 376, 384 (D. Conn.
2008).
As plaintiff does not seek to add more claims and defendants had an opportunity to

3

According to a somewhat confusing series of corporate maneuvers described in the proposed
amended complaint, Litton was acquired by HK Systems, which was then acquired by Dematic. Northrop
Grumman, Western, and Intermec also reportedly acquired part or all of Litton. Plaintiff tacitly admits that he
does not know each defendant's specific connection to the conveyor system and has indicated his
willingness—after proper discovery—to voluntarily discontinue claims inappropriately asserted against any
defendants. Nordby Decl. ¶ 8.
4
Plaintiff attached six photographs depicting the conveyor belt system to the proposed amended
complaint. In his motion papers, plaintiff's counsel has identified and submitted a citation issued to FedEx by
OSHA as a result of Clark's injury. However, there is no reference to the OSHA citation in the proposed
amended complaint.

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respond to the proposed amended complaint, the merits of the motions to dismiss will be
considered in light of the proposed amended complaint. If the proposed amended complaint
cannot survive the motions to dismiss, then plaintiff's cross-motion will be denied as futile.
See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.
2002).
B. Rule 12(b)(6) Motions to Dismiss—Legal Standard
Defendants argue that the proposed amended complaint must be dismissed, pursuant
to Federal Rule of Civil Procedure 12(b)(6), because it fails to state any claims upon which
relief may be granted. To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations
must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Although a complaint need only contain "a short and
plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P.
8(a)(2), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Dismissal is appropriate only where plaintiff has
failed to provide some basis for the allegations that support the elements of his claims. See
Twombly, 550 U.S. at 570 (requiring "only enough facts to state a claim to relief that is
plausible on its face").
When considering a motion to dismiss, the complaint is to be construed liberally, all
factual allegations are to be deemed true, and all reasonable inferences must be drawn in
the plaintiff's favor. Chambers, 282 F.3d at 152. Further, a district court may consider
documents attached to the complaint as exhibits or incorporated by reference therein.
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
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C. Merits of the Motions to Dismiss
In the proposed amended complaint, Clark asserts the following five causes of action:
(1) strict products liability under the theory of design defect; (2) strict products liability under
the theory of manufacturing defect; (3) breach of the warranty of merchantability; (4) breach
of the warranty for fitness for a particular purpose; and (5) negligence under a failure to warn
theory.
Defendants argue that—despite inspecting the conveyor system twice and receiving
various documents from FedEx—plaintiff fails to plausibly allege which defendants, if any,
designed, manufactured, assembled, sold, or installed the system at the FedEx facility. They
further assert that plaintiff offers only conclusory allegations regarding the liability of
defendants as successors to Litton.5
To hold a defendant liable for designing or manufacturing a defective product, a
plaintiff must ultimately prove that the defendant actually designed or manufactured the
product. See D'Amico v. Mfrs. Hanover Trust Co., 173 A.D.2d 263, 265 (N.Y. App. Div. 1st
Dep't 1991). Further, under New York law, a corporation that purchases the assets of
another corporation can only be held liable for the seller's liabilities if: "(1) it expressly or
impliedly assumed the predecessor's tort liability, (2) there was a consolidation or merger of
seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling
corporation, or (4) the transaction is entered into fraudulently to escape such obligations."
New York v. Nat'l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir. 2006).

5
Defendants have apparently abandoned their initial assertion that plaintiff fails to adequately plead
a defect in the conveyor system. Indeed, the proposed amended complaint specifically includes allegations
and photographs of an uncovered gap between a conveyor belt and metal rollers, in which plaintiff's right
hand allegedly became entangled. FedEx reportedly remedied this defect after the accident.

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In the proposed amended complaint, Clark alleges that Litton designed,
manufactured, and sold the conveyor system, and that Designed Conveyor installed it at the
FedEx facility. Such allegations, assumed to be true at the motion to dismiss stage, state
plausible claims. Plaintiff is entitled to discovery to develop these allegations and determine
which of the other defendants, if any, had a connection to the conveyor system or are liable
as successors to Litton. See Varmon v. Zep Mfg. Co., No. 92 CIV. 4117, 1994 WL 97560, at
*1 (S.D.N.Y. 1994) ("The present absence of evidence establishing the identity of the box
manufacturer by no means demonstrates that Zep will not be able to prove liability after
further discovery.").
Accordingly, the cross-motion to amend will be granted and the motions to dismiss will
be denied.
IV. CONCLUSION
At this early stage of the litigation, Clark has adequately alleged that the Litton and
Designed Conveyor defendants were directly connected to the allegedly defective conveyor
system in which he injured his hand. Further, although discovery may lead to a voluntary
discontinuance of all claims against some or all of the other corporate defendants, they will
remain in the case to determine whether they are proper defendants under successor
liability. The parties are strongly encouraged to work with Hon. Therese Wiley Dancks,
United States Magistrate Judge, as soon as possible to exchange discovery in an effort to
identify which defendants, if any, are proper and to discontinue the claims against the other
sued defendants. The defendants' cooperation will minimize the litigation expenses they
seek to avoid.

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Therefore, it is
ORDERED that
1. Plaintiff's cross-motion for leave to file an amended complaint is GRANTED;
2. The Litton and Northrop Grumman defendants' motion to dismiss is DENIED;
3. The Dematic and HK Systems defendants' motion to dismiss is DENIED;
4. Defendant Western Atlas Inc.'s motion to dismiss is DENIED;
5. The Designed Conveyor defendants' motion to dismiss is DENIED;
6. The Clerk of the Court is directed to file the First Amended Complaint and
photographs attached thereto (ECF No. 30-5) as the operative pleading; and
7. Defendants shall file an answer to the First Amended Complaint on or before
December 5, 2014.
IT IS SO ORDERED.

Dated: November 14, 2014
Utica, New York.

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