Theiss v. Burger King Restaurant, et al

Filing 14

Memorandum Opinion and Order: The motion (Doc. No. 11 ) of defendant Carrols Corporation to dismiss for failure to state a claim is granted. Dismissal is, however, without prejudice. Further, to the extent plaintiff seeks leave to amend her complaint, that request is denied, also without prejudice to her right to bring another action in this or another court. Judge Sara Lioi on 7/20/2011. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JEAN THEISS,
PLAINTIFF,
vs.
BURGER KING RESTAURANT, et al.,

DEFENDANTS.

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CASE NO. 5:11CV0787
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

Before the Court is the motion for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(b)(6) and (c) filed by defendant Carrols Corporation on the ground that
plaintiff’s complaint fails to state a claim upon which relief can be granted. (Doc. No. 11.)
Plaintiff has filed a brief in opposition (Doc. No. 12) and defendant filed a reply (Doc. No. 13).
For the reasons discussed below, the motion is GRANTED.

I. BACKGROUND
On March 23, 2011, plaintiff filed a complaint for personal injury and product
liability in the Summit County Court of Common Pleas against defendants Burger King
Restaurant, Carrols Corporation, Burger King Corporation, and John/Jane Doe Employees 1-10.
Defendants Burger King Corporation and Carrols Corporation timely removed the case to this

Court on April 21, 2011.1 On June 3, 2011, the parties stipulated to the dismissal of defendant
Burger King Corporation. (Doc. No. 9.)
Plaintiff moved to remand on the ground that the John/Jane Doe defendants are
“clearly citizens of Ohio.” On June 7, 2011, the Court denied this motion as premature. On that
same day, defendant Carrols Corporation (“Carrols”) filed the instant motion.

II. DISCUSSION
A. Legal Standard
A motion for judgment on the pleadings under Rule 12(c) is judged by the same
legal standard as a Rule 12(b)(6) motion to dismiss. E.E.O.C. v. J.H. Routh Packing Co., 246
F.3d 850, 851 (6th Cir. 2001). A complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief[,]” Fed. R. Civ. P. 8(a)(2), in order to “give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley
v. Gibson, 355 U.S. 44, 47 (1957). Although this pleading standard does not require great detail,
the factual allegations in the complaint “must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing authorities).
In other words, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.” Id. at 556, n.3 (criticizing the Twombly dissent’s assertion that the pleading
standard of Rule 8 “does not require, or even invite, the pleading of facts”).
“To survive a motion to dismiss, 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,

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 The Notice of Removal was filed on behalf of Burger King Corporation and Carrols Corporation, “improperly also
identified in the complaint by the fictitious name and address ‘Burger King Restaurant, c/o Risk Manager, 3199
Manchester Road, Akron, OH’[.]” (Doc. No. 1 at 1.) Defendant Burger King Restaurant has no representation listed
on the docket and, presumably, does not actually exist as a legal entity.

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129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Rule 8 does not “unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950. “While
legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.” Id.

B. Analysis
Carrols argues in its motion that plaintiff’s complaint does not meet the standard
articulated by Iqbal and Twombley. In particular, Carrols asserts that the complaint “is devoid of
sufficient and particularized factual allegations as required by F.R.C.P. 12 [sic] that are
something more than mere conclusory allegations containing a formulaic recitation of the
elements of each claim for relief.” (Doc. No. 11 at 2.)
In opposition, plaintiff asserts that her complaint contains the “necessary factual
allegations” and is “not subject to dismissal[.]” (Doc. No. 12 at 2.) Plaintiff points to the
following allegations as argument that the complaint is “plausible on its face and contains the
requisite factual content[.]” (Id. at 3.)
3.

On or about June 13, 2009, Defendants John/Jane Doe Employees 1-10
while in the scope of their employment negligently manufactured,
inspected, prepared, tested, supplied, marketed, distributed, handled,
cooked, and/or served “chicken fries” and/or chicken products to Burger
King customers and/or negligently supervised and/or caused the
manufacturing, inspecting, preparing, testing, supplying, marketing,
distributing, handling, cooking, and/or serving food to Burger King
customers.

4.

On or about June 13, 2009, Plaintiff purchased from Defendant Burger
King Restaurant its “chicken fries” and/or chicken products which were
prepared by Defendants, their agents, servants and/or employees, and
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distributed to the general public and the Plaintiff, Jean Theiss, a consumer
and business invitee.
8.

On or about June 13, 2009, Plaintiff, after consuming the “chicken fries”
and/or chicken products she purchased at Burger King Restaurant under
her normal and foreseeable manner, sustained serious injuries to include
the acute onset of food poisoning.

9.

As a direct and proximate cause of the negligence and/or otherwise
tortuous conduct of Defendants, their agents, servants, and/or employees,
Plaintiff, Jean Theiss, was seriously and permanently injured, experienced
pain, suffering and mental anguish; incurred the expenses of physicians,
hospitals and other health care providers, sustained lost wages, and that
her injuries are otherwise permanent in nature.

(Doc. No. 12 at 3.) Plaintiff asserts that defendant2 admitted in its motion that paragraphs 3, 4,
and 8 contain the necessary factual allegations. Defendant denies any such admission (see Doc.
No. 13 at 2-3), asserting that it pointed to these three paragraphs to illustrate that they were the
only paragraphs of the complaint containing any factual allegations.
The gravamen of plaintiff’s complaint is that she purchased and consumed
chicken fries at a Burger King restaurant and thereafter got food poisoning which caused her
injury. That much seems clear. The fatal flaw in the complaint, from the Court’s perspective, is
that, although it alleges that Carrols, the only named and served defendant remaining, is a “duly
authorized corporation[ ] doing business in the State of Ohio” (Compl. ¶ 1), it does not then link
Carrols to the allegations of injury. Although it alleges that the John/Jane Doe defendants “while
in the scope of their employment negligently manufactured, inspected, prepared, tested, supplied,
marketed, distributed, handled, cooked, and/or served ‘chicken fries’ and/or chicken products to
Burger King customers and/or negligently supervised and/or caused the manufacturing,

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  Throughout her opposition, plaintiff refers to the movant, Carrols, as “defendants.” Her opposition suffers from
one of the same flaws as her complaint -- she groups everyone together under the term “defendants” and fails to
allege facts specific to each (or to any) defendant. The instant motion was filed by one defendant -- Carrols.

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inspecting, preparing, testing, supplying, marketing, distributing, handling, cooking, and/or
serving food to Burger King customers[,]” (Compl. ¶ 3), it never states that the Doe defendants
were employed by Carrols (or any other defendant). The mere fact that a defendant may be
authorized to do business in Ohio does not provide the basis for assuming that the Doe
defendants were working for any of the other defendants. Nor does paragraph 4 of the complaint
clear that up when it alleges that plaintiff purchased “from Defendant Burger King Restaurant”
the products “which were prepared by Defendants, their agents, servants and/or employees, and
distributed to the general public[,]” including plaintiff. (Compl. ¶ 4.) Paragraph 4 still does not
make clear that any of the Doe defendants was an agent, servant or employee of Carrols. While it
is possibly true that all of the Doe defendants did exactly what the complaint alleges, and the
Court must assume so for purposes of a motion to dismiss, that does not establish that Carrols is
responsible for their actions in any way. There are simply no allegations in the complaint that
sufficiently link Carrols to the injury alleged therein.
In sum, the question that is not cleared up by the “short and plain statement” of
the complaint is whether Carrols Corporation has any relationship to Burger King (in any form)
and/or the Doe defendants such that it would (or might) be liable for the actions of those other
defendants. A complaint “has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 129 S.Ct. at 1949. Here any such factual content is missing with respect to
Carrols.
Plaintiff argues that, if her complaint is deficient, she should be permitted to
amend it. Presumably, an amended complaint could make clear whether Carrols has any
relationship to the Burger King restaurant where plaintiff alleges her injury occurred and,
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therefore, would arguably be responsible for the actions of some or all of the John/Jane Doe
defendants. That might correct some of the complaint’s deficiencies.
One problem the Court perceives with allowing an amended complaint at this
stage is that the original complaint seems to suggest that there is not only liability for preparing,
handling, cooking, and serving a defective product, but also for manufacturing, inspecting,
testing, supplying, and marketing the product. Some of the Doe defendants would have been the
persons who prepared, handled, cooked and served the allegedly offending product, arguably
making Carrols liable if Carrols employed those defendants; but others who did the
manufacturing, inspecting, testing, supplying and marketing may not (and likely do not) have
any connection to Carrols other than being in its overall chain of commerce. Since Iqbal
expressly forbids allowing a plaintiff to engage in discovery so as to find facts sufficient to draft
a complaint showing entitlement to relief, see, Iqbal, 129 S.Ct. at 1954 (“Because respondent’s
complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise”),
amending the complaint now to correct a problem relating only to Carrols seems futile. See also,
New Albany Tractor, Inc. v. Louisville Tractor, Inc., No. 10-5100, 2011 WL 2448909, at *3 (6th
Cir. June 21, 2011) (“The plaintiff may not use the discovery process to obtain [facts to support
her allegations] after filing suit. The language of Iqbal, ‘not entitled to discovery,’ is binding on
the lower federal courts.”). Therefore, the Court is of the view that dismissal without prejudice is
the better route.3

3

  In NewAlbany Tractor, the court affirmed the district court’s dismissal with prejudice, concluding that “[t]he
district court gave the plaintiff substantial additional time to come up with more specific evidence[.]” 2011 WL
2448909, at * 5. That suggests to this Court that plaintiff should be allowed an opportunity to “come up with more
specific evidence.” However, the case need not remain pending while plaintiff does that.

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III. CONCLUSION
For the reasons discussed above, the motion (Doc. No. 11) of defendant Carrols
Corporation to dismiss for failure to state a claim is GRANTED. Dismissal is, however, without
prejudice. Further, to the extent plaintiff seeks leave to amend her complaint, that request is
denied, also without prejudice to her right to bring another action in this or another court.

IT IS SO ORDERED.

Dated: July 20, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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