Deskevich v. Spirit Fabs, Inc. et al

Filing 88

MEMORANDUM (Order to follow as separate docket entry) re 75 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Jacobs Engineering Group, Inc. Signed by Honorable Matthew W. Brann on 6/4/2021. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PEYTON DESKEVICH,

No. 4:20-CV-01387

Plaintiff,

(Judge Brann)

v.
SPIRIT FABS, INC., et al.,
Defendants.
MEMORANDUM OPINION
JUNE 4, 2021
On July 2, 2020, Plaintiff Peyton Deskevich filed a 42-count complaint
against Defendants Spirit Fabs, Inc., Valley Drafting, Inc., First Quality
Enterprises, Inc., First Quality Products, Inc., First Quality Tissue, Inc., and Jacobs
Engineering Group, Inc.1 Following a number of motions to dismiss, this Court
dismissed Counts XXXVII-XLII against Jacobs without prejudice.2 Deskevich
filed an amended complaint on December 23, 2020.3 Deskevich then filed a
second amended complaint on February 2, 2021.4 Jacobs now seeks to dismiss
Counts XVII-XXII.5

1
2
3
4
5

Doc. 1-2.
Doc. 52.
Doc. 53.
Doc. 72. The remaining defendants are Spirit Fabs, Valley Drafting, First Quality Tissue, LLC,
and Jacobs.
Doc. 75.

Jacobs’s motion to dismiss is now ripe for disposition; for the following
reasons, it is granted.
I.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon
which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a
pleading”6 and “streamlines litigation by dispensing with needless discovery and
factfinding.”7 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a
dispositive issue of law.”8 This is true of any claim, “without regard to whether it
is based on an outlandish legal theory or on a close but ultimately unavailing one.”9
Following the Roberts Court’s “civil procedure revival,”10 the landmark
decisions of Bell Atlantic Corporation v. Twombly11 and Ashcroft v. Iqbal12
tightened the standard that district courts must apply to 12(b)(6) motions.13 These

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Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.).
Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Id. at 327.
Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313, 316, 319-20 (2012).
550 U.S. 544 (2007).
556 U.S. 662, 678 (2009).
Id. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (“[a]cknowledging that
Twombly retired the Conley no-set-of-facts test”).
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cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and
replaced it with a more exacting “plausibility” standard.14
Accordingly, after Twombly and Iqbal, “[t]o 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.’”15 “A claim 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.”16 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted
unlawfully.”17 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”18
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”19 No
matter the context, however, “[w]here a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between

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Id. (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that Twombly retired the
Conley no-set-of-facts test”).
Id. at 678 (quoting Twombly, 550 U.S. at 570).
Id.
Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotations
and citations omitted).
Twombly, 550 U.S. at 556.
Iqbal, 556 U.S. at 679.
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possibility and plausibility of entitlement to relief.’”20
When disposing of a motion to dismiss, the Court “accept[s] as true all
factual allegations in the complaint and draw[s] all inferences from the facts
alleged in the light most favorable to [the plaintiff].”21 However, “the tenet that a
court must accept as true all of the allegations contained in the complaint is
inapplicable to legal conclusions.”22 “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”23
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.24
II.

FACTS ALLEGED IN THE SECOND AMENDED COMPLAINT
Deskevich is a union ironworker and member of Local Union #3,

headquartered in Pittsburgh, Pennsylvania.25 As a member of that union,

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Id. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
Iqbal, 556 U.S. at 678 (internal citations omitted); see also Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘barebones’ allegations will no longer survive a motion to dismiss.”).
Iqbal, 556 U.S. at 678.
Connelly, 809 F.3d at 787 (internal quotations and citations omitted).
Doc. 72 at ¶ 6.
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Deskevich was hired by Somerset Steel Erection Company, Inc., an industrial
contractor, to work on First Quality Tissue’s “Boston 3 Project,” a building in
Lock Haven, Pennsylvania.26 While working on this project, Deskevich helped to
assemble the building by installing a product known as a sheeting girt.27 A
sheeting girt is a horizontal metal sheet that provides lateral support to a building.28
The sheeting girt in this case was bolted to two columns.29
While Deskevich was sitting on a sheeting girt tightening one of its bolts, the
girt fell and Deskevich was seriously injured.30 Deskevich now claims that
Defendants are liable for his injuries. Against Jacobs, Deskevich asserts claims for
negligence, strict liability, and breach of warranty. Deskevich alleges that Jacobs,
an engineering company responsible for the Boston 3 Project, designed the subject
girt, or purchased or sold it for use in the building.31 Deskevich also asserts that
Jacobs is responsible for designing the Boston 3 Project and therefore approved
use of the girt in the building’s construction. Deskevich does not allege that Jacobs
regularly engages in the business of purchasing or selling sheet girts.

26
27
28
29
30
31

Id. at ¶¶ 7-8.
Id. at ¶ 9.
Id. at ¶ 10.
Id.
Id. at ¶¶ 14, 30-33.
Id. at ¶ 26.
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III.

DISCUSSION
A.

Strict Liability

Jacobs first seeks to dismiss Deskevich’s four strict-liability claims on the
basis that Jacobs neither is a “seller” nor sold a “product” to a “consumer” as those
terms are defined under Pennsylvania law. The Restatement (Second) of Torts
§ 402A imposes liability only upon those who (1) are sellers (2) of products (3)
that are expected to and do reach a “user or consumer” without substantial
change.32 Jacobs argues that none of these three elements are plausibly established
by allegations in the second amended complaint.
The Court agrees because the second amended complaint does not allege
facts showing that Jacobs was a seller within the meaning of section 402A. “The
Pennsylvania Supreme Court has held ‘that the term “seller,” as used in [section]
402A, is used generically to include all suppliers of products who, because they
are engaged in the business of selling or supplying a product, may be said to have
“undertaken and assumed a special responsibility” toward the consuming public
and who are in a position to spread the risk of defective products.’”33 Accordingly,

32

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See Francioni v. Gibsonia Truck Corp., 372 A.3d 736, 738 (Pa. 1977) (“By the adoption of
Section 402A, that responsibility was placed on those who, through manufacturing and
distribution, intend that products ‘reach the market.’” (citations omitted)).
Thorpe v. Bollinger Sports, LLC, 2015 WL 5299614, at *2 (E.D. Pa. Sept. 9, 2015) (emphasis
in original) (quoting Gavula v. ABA Servs., Inc., 756 A.2d 17, 20 (Pa. Super. 2000)).
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“[a]n entity that is not engaged in the distribution or marketing, i.e., the chain of
distribution, of a product to the public is not subject to strict liability.”34
But Deskevich does not allege that Jacobs was engaged in the distribution or
marketing, or the business of selling or supplying, sheet girts. Rather, the
complaint alleges, at most, only that Jacobs may have purchased or sold the subject
girt for use in the Boston 3 Project. This alone, even presumed true, is insufficient
to state claim for strict liability because it does not establish that Jacobs was a
seller within the meaning of section 402A. Given that this deficiency forecloses all
of Deskevich’s strict-liability claims, the Court declines to address at length
Jacobs’s arguments that the girt is not a product and that Deskevich was not a
“consumer.”35 As a result, Jacobs’s motion to dismiss Counts XVII, XVIII, XX,
and XXII is granted.
B.

Misrepresentation

Jacobs next seeks to dismiss Deskevich’s claim that Jacobs made material
misrepresentations regarding the girt. The Restatement (Second) of Torts § 402B
provides for strict liability of “[o]ne engaged in the business of selling chattels

34
35

Id. (citations omitted).
The Court finds Jacobs’s contentions on these points persuasive because the girt was used as a
component in a building, which is not a product, and because Deskevich did not “consume” or
“purchase” the girt. Abdul-Warith v. Arthur G. McKee & Co., 488 F. Supp. 306, 312 (E.D. Pa.
1980) (“As real property, in contradistinction to a chattel or piece of equipment, [a] silo would
be beyond the purview of section 402A.”); D’Antonio v. FMC Techs., Inc., 2016 WL 7324151,
at *2 (W.D. Pa. Sept. 30, 2016) (finding that “it would be a stretch” to hold that a plaintiff
loading a product onto a truck to be transported to a consumer is himself an end-user or
consumer of the product).
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who, by advertising, labels, or otherwise, makes to the public a misrepresentation
of a material fact concerning the character or quality of a chattel sold by him.” The
Court concludes that the second amended complaint fails to state a claim under
section 402B for the same reason it did under section 402A: because it does not
allege specific facts establishing that Jacobs is engaged in the business of selling
girts. Accordingly, Jacobs’s motion to dismiss Count XIX is granted.
C.

Breach of Warranty

Finally, Jacobs seeks to dismiss Count XXI for breach of warranty. To
succeed on a claim for breach of warranty under the Uniform Commercial Code, a
plaintiff must show that a merchant who sells goods breached the implied warranty
of merchantability.36 For the reasons discussed above, Deskevich has not pled
facts establishing that Jacobs is a merchant engaged in the business of selling sheet
girts. Jacobs’s motion to dismiss Count XXI is therefore granted.
IV.

CONCLUSION
Jacobs’s Motion to Dismiss pursuant to Rule 12(b)(6) is granted. Leave to

amend is denied. “Among the grounds that could justify a denial of leave to amend
are undue delay, bad faith, dilatory motive, prejudice, and futility.”37 Leave to
amend may also be denied for “repeated failures to cure the deficiency by
amendments previously allowed.”38 The Court first warned Deskevich of the
36
37
38

13 Pa. C.S. § 2314(a).
Burlington, 114 F.3d at 1434.
Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993).
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deficiencies of his claims against Jacobs when it dismissed his original complaint.
Deskevich is now on his second amended complaint and has yet to state a strictliability claim against Jacobs. Consequently, the Court concludes that denial of
leave to amend is proper.
An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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