American & Efird LLC v. Pittsfield Plastics Engineering, Inc.

Filing 72

ORDER granting 55 Motion to Dismiss; affirming 66 Memorandum and Recommendations. Third-party claims asserted by Metro against CSS are Dismissed Without Prejudice. Signed by District Judge Max O. Cogburn, Jr on 5/14/2013. (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:12-cv-00194-MOC-DCK

AMERICAN & EFIRD LLC,

)
)
Plaintiff,
)
)
Vs.
)
)
PITTSFIELD PLASTICS ENGINEERING, )
INC.,
)
)
Defendant/Third-Party )
Plaintiff,
)
)
Vs.
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)
METRO PLASTICS, INC.; and SOLOMON )
CAPITAL, LLC;
)
)
Third-Party
)
Defendants,
)
)
and
)
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METRO PLASTICS, INC.,
)
)
Third-Party Plaintiff,
)
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Vs.
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CSS INDUSTRIES, INC.,
)
)
Third-Party Defendant. )
______________________________
)

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ORDER AFFIRMING
SECOND MEMORANDUM
and RECOMMENDATION

THIS MATTER is before the court on review of a Memorandum and
Recommendation issued in this matter. In the Memorandum and Recommendation, the
magistrate judge advised the parties of the right to file objections within 14 days, all in
accordance with 28, United States Code, Section 636(b)(1)(c). Objections have been
filed within the time allowed.
The Federal Magistrates Act of 1979, as amended, provides that “a district court
shall make a de novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby
v. Davis, 718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may
be dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de
novo review is not required by the statute “when a party makes general or conclusory
objections that do not direct the court to a specific error in the magistrate judge’s
proposed findings and recommendations.” Id. Moreover, the statute does not on its face
require any review at all of issues that are not the subject of an objection. Thomas v. Arn,
474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge
is responsible for the final determination and outcome of the case, and accordingly the
court has conducted a careful review of the magistrate judge’s recommendation.
On January 14, 2013, Metro filed an Answer to Pittsfield’s Amended Third Party
Complaint, a Cross Claim against Solomon and a Third Party Complaint against CSS
(#46). The Third Party Complaint against CSS asserts breach of implied warranties, strict
liability and negligence. On February 28, 2013, CSS filed its “Motion to Dismiss”
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arguing that Metro’s claims are a restatement of Pittsfield’s claims against CSS that have
been previously dismissed by the court. CSS also argues that there is no legal or factual
basis for the allegations in the Third Party Complaint.
On April 9, 2013, the magistrate judge issued a Memorandum and
Recommendation on CSS’s Motion to Dismiss. In that Recommendation, the magistrate
judge determined that in Metro’s Answer to Pittsfield’s Third Party Complaint (#18),
Metro ultimately denied Pittsfield’s allegations concerning CSS’s involvement in the
transaction. Answer (#46 ). Metro, however, subsequently restated the same allegations
it had earlier denied in support of its Third Party Complaint against CSS. In response to
CSS’s Motion to Dismiss, Metro argued that it should be allowed to plead in the
alternative, a proposition in which the magistrate judge concurred, but determined that
while a party could plead alternative legal theories, they could not plead alternative sets
of facts. M&R (#66) at 4. The magistrate judge found that because Metro admitted in
paragraphs 78-106 of its Answer that it did not have knowledge of the facts surrounding
CSS’s involvement in the transaction, it could not assert those facts in its pleadings.
The magistrate judge is quite correct in his determination. As this court has
previously held, North Carolina law is applicable to this matter and it well settled under
the state’s law that “when a plaintiff alleges he does not have sufficient knowledge or
information to form a belief as to particulars, he disqualifies himself to allege them as
facts.” Myrtle Apartments, Inc. v. Lumbermen’s Mut. Casualty Co., 127 S.E.2d 759, 761
(N.C. 1962).

While the court has carefully considered Metro’s objections to the

Recommendation, they are simply restatements of its argument in response to the Motion
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to Dismiss. Metro’s argument that it may later discover facts that could support it claims
is not sufficient to support its argument that its claims are viable. Indeed, if Metro finds
facts during discovery that would support assertion of claims against CSS, it will
certainly be at liberty to file a Motion to Amend based on newly discovered evidence. To
give teeth to such possibility, the court will specifically make the dismissal herein
without prejudice. As noted by the magistrate judge, however, the court will not condone
alternative fact pleading, and any potential amendment or addition or claims will need to
be paired with Metro amending its Answer to Pittsfield’s pleading.
Finally, as to Metro’s claims brought under Massachusetts and Pennsylvania law,
this court has already determined that North Carolina law applies in this case. See Order
(#29) at 5. Such determination constitutes law of the case. If Metro desires to bring the
claim(s) which it did not assert under North Carolina law, it should move to amend.
After such careful review, the court determines that the recommendation of the
magistrate judge is fully consistent with and supported by current law. Further, the
factual background and recitation of issues is supported by the applicable pleadings.
Based on such determinations, the court will fully affirm the Memorandum and
Recommendation and grant relief in accordance therewith.
ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation
(#66) is AFFIRMED, Third-Party Defendant CSS Industries, Inc.’s Motion to Dismiss
(#55) is GRANTED, and the third-party claims asserted by Metro against CSS are
DISMISSED WITHOUT PREJUDICE. CSS’s request for its fees and costs under
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Rule 11 in bringing the Motion to Dismiss is DENIED as there is no indication in such
request that the prerequisites to such an award were met by CSS.
Signed: May 14, 2013

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