ERIE INSURANCE EXCHANGE v. DANBY PRODUCTS, INC. et al

Filing 33

ORDER granting 19 Motion to Dismiss and granting leave to file an amended third party complaint on or before July 15, 2011. Signed by Judge Donetta W. Ambrose on 6/21/11. (laf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIE INSURANCE EXCHANGE,
As Subrogee of MARYANN MEDVED,
Plaintiff,
vs.
DANBY PRODUCTS, INC., a Delaware
Corporation; SEARS, ROEBUCK and
Co., a New York Corporation;
SEARS HOLDINGS CORPORATION, a
Delaware Corporation; and SEARS,
Defendants,
vs.
DANBY PRODUCTS LIMITED and
ELECTROLUX,
Third-Party Defendants

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Civil Action No. 10-1271

AMBROSE, Senior District Judge

OPINION AND
ORDER OF THE COURT
Synopsis
Third-party Defendant, Danby Products Limited (“Danby”) moves to dismiss the thirdparty complaint (Docket No. 18) filed against it by Sears, Roebuck and Co., Sears Holdings
Corp. and Sears (collectively, “Sears”). For the reasons set forth below, I grant Danby‟s motion
to dismiss.

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I.

Applicable Standards
In deciding a motion to dismiss under Fed R. Civ. P. 12(b)(6), all factual allegations, and

all reasonable inferences therefrom, must be accepted as true and viewed in a light most
favorable to the plaintiff. Haspel v. State Farm Mut. Auto. Ins. Co., 2007 WL 2030272, at *1
(3d Cir. July 16, 2007). In the last two years, “pleading standards have seemingly shifted from
simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more
than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009). After the Supreme Court‟s opinion in Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009), “it is clear that conclusory or „bare-bones‟ allegations will no longer survive a
motion to dismiss: „threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.‟” Fowler, 578 F.3d at 210 (quoting Iqbal, 129 S. Ct. at
1949).
“[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis. First, the factual and legal
elements of a claim should be separated. . . .Second, a District Court must then
determine whether the facts alleged in the complaint are sufficient to show that the
plaintiff has a „plausible claim for relief.‟” Id. at 210-211 (citing Iqbal, 129 S. Ct. at
1950). “As the Supreme Court instructed in Iqbal, „[w]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not „show[n]‟ - „that the pleader is entitled to
relief.‟”
Id. at 211 (quoting Iqbal, 129 S. Ct. at 1949).

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II.

Allegations Against Danby1
Plaintiff Erie Insurance Exchange (“Erie”), as subrogee of Maryann Medved, brought an

action against Sears and Danby Products, Inc. (“Danby Products”) to recover monies paid to the
homeowner under an insurance policy. More specifically, Erie alleges that, on or about June 3,
2000, Maryann Medved purchased a Kenmore Dehumidifier Model No. 46159490990 at a Sears
department store for use in her home located in Lawrence County, Pennsylvania. (Docket No. 12, at ¶9.) The dehumidifier was designed, manufactured, produced, distributed and/or sold by
Defendants Sears and Danby Products. (Id.) On or about August 30, 2008, a fire occurred at the
Medved residence, resulting in significant property damage, damage to personal property and
causing the Medved family to be displaced from their residence for an extended period of time.
(Id. at ¶10.) Pursuant to its policy of insurance, Plaintiff made payments in the amount of
$133,643.03 to Maryann Medved for the damages sustained in the fire. (Id. at ¶13.) Plaintiff
asserted claims for negligence, strict liability and breach of warranty against Sears and Danby
Products.
In the third-party complaint, Sears alleges that Danby Products has denied that it
manufactured the dehumidifier. (Docket No. 18, at ¶4.) Sears further alleges that “due to the
deteriorated condition of the subject dehumidifier after the house fire it was alleged to have
started, at this time the Sears Defendants have been unable to reach a conclusive determination
of the manufacturer‟s identity.” (Id. at ¶6.) Sears concludes that “the Sears Defendants believe
that Electrolux, [Danby] or original co-defendant Danby Products, Inc. may be the manufacturer
of the subject dehumidifier.” (Id. at ¶8.) Sears asserts one claim against Danby alleging that, in
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The third-party complaint incorporates by reference the allegations set forth in the
original complaint (Docket No. 1-2). Accordingly, for purposes of this motion, I will consider
the allegations set forth in both complaints.
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the event that Sears is found liable to Erie, then Danby is “solely and/or jointly and severally
liable to the Plaintiff, or in the alternative, is liable over to the Sears Defendants for indemnity
and/or contribution.” (Id. at ¶10.)
III. Danby’s Motion to Dismiss
Danby moves to dismiss the third-party complaint on the grounds that Sears has failed to
allege any factual basis for Danby‟s liability. I agree. Sears has not alleged a single fact to
support its conclusory allegation that Danby may be the manufacturer of the dehumidifier.
Indeed, the only two facts alleged, that Sears cannot determine who manufactured the
dehumidifier and that Danby Products has denied that it did so, undermine Sears‟ allegation that
Danby may be the manufacturer.
As set forth in Part I above, a plaintiff must allege more than mere conclusory statements.
The plaintiff must allege sufficient facts to state a plausible claim for relief. Here, Sears has
failed to allege any facts in support of its claims against Danby. Accordingly, Danby‟s motion to
dismiss is granted.2
In the event of dismissal, Sears requests the ability to amend its complaint. Under
Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave when justice so
requires.” Accordingly, I grant Sears leave to amend its third-party complaint to allege specific
facts supporting its claim against Danby.

Conclusion
Based on the foregoing, Danby‟s motion to dismiss is granted. Sears is granted leave to

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Because Sears has failed to state a claim against Danby, I need not address Danby‟s
additional argument that Sears may not assert a claim for sole or direct liability against Danby.
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file an amended third-party complaint against Danby.

ORDER OF COURT
Having carefully considered Danby‟s motion to dismiss [Docket Nos. 19, 20], Sears‟
response thereto [Docket Nos. 27-29], and Danby‟s reply [Docket No. 31], it is hereby
ORDERED that Danby‟s motion to dismiss is GRANTED. Sears may file an amended thirdparty complaint on or before July 15, 2011.
Dated: June 21, 2011
BY THE COURT:
/s/Donetta W. Ambrose
Donetta W. Ambrose,
Senior U.S. District Judge

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