Pozarlik et al v. Camelback Associates, Inc. et al

Filing 13

MEMORANDUM AND ORDER finding as moot 4 Motion to Strike ; granting 10 Motion for More Definite Statement. Plaintiffs have 21 days to file an amended complaint. Signed by Honorable A. Richard Caputo on 11/30/11 (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ARKADIUSZ PIOTR POZARLIK and
AGNIESZKA ZOFIA POZARLIK,
CIVIL ACTION NO. 3:11-CV-1349
Plaintiffs,
(JUDGE CAPUTO)
CAMELBACK ASSOCIATES, INC. t/d/b/a
THE VILLAGE AT CAMELBACK; THE
VILLAGE AT CAMELBACK PROPERTY
OWNERS ASSOCIATION, INC.;
KATHLEEN SIMONCIC; QUEENSBORO
FLOORING P.A. CORPORATION,
QUEENSBORO PROFESSIONAL WOOD
FLOORING, LLC; TOMAS
KORYTKOWSKI; BELLA CHERNOV, and
JOHN DOE NOS. 1-6
Defendants.
MEMORANDUM
Defendant Queensboro Professional Wood Flooring, LLC and its owner, defendant,
Tomasz Korytkowski (collectively “Queensboro”) move for a more definite statement of
plaintiffs Arkadiusz and Agnieszka Pozarlik’s amended complaint under Federal Rule of
Civil Procedure 12(e) or to strike several paragraphs of the complaint for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 10.) Queensboro argues that the amended
complaint’s vagueness makes it impossible for it to answer the allegations in good faith
without potentially prejudicing itself. The Court agrees and will order the Pozarliks to file a
a more definite statement of the paragraphs of the amended complaint discussed below.
BACKGROUND
The Pozarliks’ allege as follows.
This suit arises out of a tragic fire that occurred during a home remodeling. The

Village at Camelback is a condominium community located in Tannersville, Pennsylvania
and operated by Camelback Associates, Inc. Defendant Bella Chernov, owner of Unit 298,
hired Queensboro to repair and refinish her unit’s floors; Queensboro contracted with
Arkadiusz Pozarlik. Ms. Chernov also had other individuals working on the unit during the
floor refinishing. On July 22, 2009, Queensboro removed a heater in the unit from the pipe
to which it was attached without properly securing the propane gas or gas line. That same
day, there was an explosion and fire in the unit. Mr. Pozarlik, who was inside 298 working
on the floors at the time, was seriously injured. In their complaint against Queensboro and
the other defendants for negligence, the Pozarliks make the following allegations:
Defendant Bella Chernov, individually and through her agents, ostensible or
apparent agents, servants, workmen and/or employees, including but not limited
to Dmitri Epelboym, Defendant Queensboro Flooring, Defendant Queensboro
Professional, Defendant Tomasz Korytkowski, and Defendants John Does Nos.
1-6, individually and through their respective agents, ostensible or apparent
agents, servants, workmen and/or employees, were negligent in . . . failing to
abide by the rules and regulations of the condominium and condominium
association with respect to work at the units . . . failing to exercise reasonable
care in the performance of duties at the subject property including but not limited
to carelessly and negligently acting as follows . . . failing to ensure that proper
techniques were employed, and applicable safety procedures followed, as to the
use of power tools and equipment at the subject property; [and] . . . violating the
standards of care prescribed by statutes, rules, regulations, ordinances, codes,
and/or industry customs applicable to this action.
(Pl. Cmpt. ¶ 47) (emphasis added.)
Based on the allegations of ¶ 47 of the amended complaint, Queensboro filed a
motion for a more definite statement or to strike portions of the complaint under Fed. R. Civ.
P. 12(b)(6). Queensboro argues these allegations lack specificity and leave the Pozarliks
too many “escape hatches” that prevent it from answering the complaint in good faith
without potentially prejudicing itself and, more generally, from mounting a proper defense.
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The motion has been briefed and is ripe for review.
LEGAL STANDARDS
I.

Fed. R. Civ. P. 12(e)
Rule 12(e) of the Federal Rules of Civil Procedure allows a party to move for a more

definite statement of a pleading “which is so vague or ambiguous that the party cannot
reasonably prepare a response.” Fed. R. Civ. P. 12(e). Like Rule 12(b)(6), Rule 12(e) must
be read in conjunction with Rule 8, which requires only a short and plain statement of the
claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8. Even after the
Supreme Court's ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009), courts have held that “[t]he
class of pleadings that are appropriate subjects for a motion under Rule 12(e) is quite
small—the pleading must be sufficiently unintelligible for the court to be able to make out
one or more potentially viable legal theories on which the claimant might proceed,” Lapcevic
v. Strive Enterprises, Inc., 2010 U.S. Dist. LEXIS 42975, at *20, 2010 WL 1816749
(W.D.Pa.2010) (quoting Sun Co. v. Badger Design & Constructors, 939 F.Supp. 365, 368
(E.D.Pa.1996). Granting a Rule 12(e) motion is appropriate only when the pleading is “so
vague or ambiguous that the opposing party cannot respond, even with a simple denial, in
good faith, without prejudice to itself.” Sun Co., 939 F.Supp. at 368.
II.

Fed. R. Civ. P. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,

in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal
is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has
not pleaded “enough facts to state a claim to relief that is plausible on its face,” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations “‘to raise
a reasonable expectation that discovery will reveal evidence of’” each necessary element,
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550
U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a
complaint to set forth information from which each element of a claim may be inferred). In
light of Federal Rule of Civil Procedure 8(a)(2), the statement need only “‘give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.’” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). “[T]he factual
detail in a complaint [must not be] so undeveloped that it does not provide a defendant
[with] the type of notice of claim which is contemplated by Rule 8.” Phillips, 515 F.3d at 232;
see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir.
2007).
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff’s claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were
not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
263 & n.13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions,’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). “While legal conclusions

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can provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
When considering a Rule 12(b)(6) motion, the Court’s role is limited to determining
if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately
prevail. See id. A defendant bears the burden of establishing that a plaintiff’s complaint
fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
III.

Fed. R. Civ. P. 12(f)
Rule 12(f) of the Federal Rules of Civil Procedure provides that a court “may strike

from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). Under Rule 12(f), the standard for striking
portions of a plaintiffs complaint “ ‘is strict and ... only allegations that are so unrelated to
the plaintiffs' claims as to be unworthy of any consideration should be stricken.’ “ Johnson
v. Anhorn, 334 F.Supp.2d 802, 809 (E.D.Pa.2004) (quoting Becker v. Chicago Title Ins. Co.,
No. Civ. A. 03–2292, 2004 U.S. Dist. LEXIS 1988, at *18, 2004 WL 228672 (E.D.Pa. Feb.
4, 2004)). Moreover, striking portions of a plaintiffs pleadings is a “drastic remedy”, which
should be used only when justice requires it. Johnson, 334 F.Supp.2d at 809 (quoting
United States v. Am. Elec. Power Serv. Corp., 218 F.Supp.2d 931 (S.D.Ohio 2002))
(quotations omitted); see also DeLa Cruz v. Piccari Press, 521 F.Supp.2d 424, 428
(E.D.Pa.2007) (providing that while “motions to strike may save time and resources by
making it unnecessary to litigate claims that will not affect the outcome of the case, motions
to strike generally are disfavored.”). Motions to strike are decided on the pleadings alone.
Id. at 429 (citing North Perm Transfer, Inc. v. Victaulic Co. of Am., 859 F.Supp. 154, 159
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(E.D.Pa.1994)).
DISCUSSION
A more definite statement of the allegations in ¶ 47 of the amended complaint is
required for Queensboro to adequately respond and prepare its defense.
In the opening of ¶ 47, the Pozarliks allege that Queensboro, “individually and
through [its] resepective agents, ostensible or apparent agents, servants, workmen and/or
employees” were negligent. While they do not identify who these agents or workmen were,
it is not necessary to do so. Their identification is properly the subject of discovery.
However, in ¶ 47(f) and (m), the Pozarliks allege Queensboro was negligent in failing to
exercise reasonable care at the property, “including but not limited to” twelve different
theories, as well as “such other negligence, if any, that will be ascertained during discovery.”
The broad, conclusory allegations here and the “including but not limited to” language fail
to put Queensboro on notice as to what it is accused of and leave it exposed to liability for
any possible form of negligence. Finally, the allegations of ¶ 47(b), (f)(iii), and (l) also need
to be better defined. These allegations state that Queensboro was negligent in:
failing to abide by the rules and regulations of the condominium and
condominium association with respect to work at the units; failing to ensure that
proper techniques were employed, and applicable safety procedures followed,
as to the use of power tools and equipment at the subject property; [and] . . .
violating the standards of care prescribed by statutes, rules, regulations,
ordinances, codes, and/or industry customs applicable to this action.
Clearly, Queensboro cannot be asked to answer such vague and sweeping allegations,
incorporating potentially innumerable state and federal laws. There is a need to identify the
rules, regulations, and laws that have allegedly been violated. Even under the liberal
pleading standard of Fed. R. Civ. P. 8(a), such claims are insufficient and need to either be

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further clarified or removed. The Pozarliks will need to re-tool their allegations so that
Queensboro can adequately respond and prepare its defense.
CONCLUSION
The Court will grant Queensboro’s motion for a more definite statement for the
reasons discussed. The Pozarliks will have twenty-one (21) days to amend and re-file the
allegations found in ¶ 47 of their amended complaint.
An appropriate order follows.

11/30/11
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ARKADIUSZ PIOTR POZARLIK and
AGNIESZKA ZOFIA POZARLIK,
CIVIL ACTION NO. 3:11-CV-1349
Plaintiffs,
(JUDGE CAPUTO)
CAMELBACK ASSOCIATES, INC. t/d/b/a
THE VILLAGE AT CAMELBACK; THE
VILLAGE AT CAMELBACK PROPERTY
OWNERS ASSOCIATION, INC.;
KATHLEEN SIMONCIC; QUEENSBORO
FLOORING P.A. CORPORATION,
QUEENSBORO PROFESSIONAL
WOOD FLOORING, LLC; TOMAS
KORYTKOWSKI; BELLA CHERNOV,
and JOHN DOE NOS. 1-6
Defendants.
ORDER
NOW, this

30th

day of November, 2011, IT IS HEREBY ORDERED that

defendants’ motion for a more definite statement (Doc. 10) is GRANTED. Plaintiffs
have twenty-one (21) days to file an amended complaint. Defendants’ previous
motion for a more definite statement (Doc. 4) is MOOT.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge