TALBOT UNDERWRITING LIMITED v. NUTRA FOOD INGREDIENTS, LLC et al

Filing 51

OMNIBUS MEMORANDUM ORDER granting 9 Total Food's Motion to Dismiss Talbot's Claim for Attorneys' Fees; denying AusVita's 27 Motion to Dismiss Nutra Food's Third-Party Complaint; and granting Collagensei's 41 Motion to Dismiss Nutra Food's Third Complaint. Talbot's claim for attorneys' fees is DISMISSED with prejudice. Nutra Food's third-party complaint is DISMISSED without prejudice and with leave to amend by 4/8/2025. Signed by Judge J. Nicholas Ranjan on 3/11/2025. (pak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TALBOT UNDERWRITING LIMITED,
Plaintiff,
v.
NUTRA FOOD INGREDIENTS, LLC;
et al.,
Defendants.

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2:24-cv-258

OMNIBUS MEMORANDUM ORDER ON PENDING MOTIONS TO DISMISS
J. Nicholas Ranjan, United States District Judge
There are three pending motions before the Court: (1) Total Food Packaging,
LLC’s motion to dismiss Talbot Underwriting Limited’s claim for attorneys’ fees (ECF
9); (2) AusVita Nutrition, Inc.’s motion to dismiss Nutra Food’s third-party complaint
(ECF 27); and (3) Collagensei Inc.’s motion to dismiss Nutra Food’s third-party
complaint. ECF 41. All motions have been fully briefed and are ready for disposition.
The Court issues this omnibus order resolving the motions.
BACKGROUND
Talbot Underwriting Limited, as subrogee of Bakery Barn, LLC, brought a
complaint alleging breach of contract, breach of express warranty, breach of implied
warranty of fitness for a particular purpose, breach of implied warranty of
merchantability, and negligence against Nutra Food Ingredients, LLC, and alleging
negligence against Total Food Packaging, LLC. ECF 5-2. Total Food timely removed
the case to this Court. ECF 5.
Bakery

Barn

manufactures

protein

bars

that

contain

hydrolyzed

collagen. ECF 5-2, ¶¶ 12-13. Nutra Food was Bakery Barn’s primary collagen
supplier. Id. at ¶ 14. In April 2022, Bakery Barn received a shipment of collagen
from Nutra Food and used it in its protein bars. Id. at ¶¶ 38-39. Bakery Barn

employees noticed that there were plastic pieces in finished protein bars, and after
an investigation, Bakery Barn discovered that the plastic pieces (as well as other
foreign objects) were coming from the collagen supplied by Nutra Food. Id. at ¶¶ 4045. Nutra Food had recently found a new collagen supplier, which supplied collagen
that was a different texture than the collagen it had received from its previous
supplier. Id. at ¶ 53. Because the collagen was a different texture, Nutra Food had
used Total Food as a “blender” to blend the collagen from the old supplier with the
collagen from the new supplier to achieve the right texture. Id.
After Talbot filed its complaint, Nutra Food filed an answer asserting a
crossclaim against Total Food. ECF 7. Nutra Food asserts in its crossclaim that
Total Food is liable to Nutra Food for contribution or indemnification because of Total
Food’s role in blending the collagen. Id. at p. 29, ¶¶ 1-3. Nutra Food also filed a thirdparty complaint against AusVita, alleging that AusVita is liable to Nutra Food
through indemnification because AusVita sold the contaminated collagen to Nutra
Food. ECF 8, ¶¶ 4-5. Finally, Nutra Food filed a third-party complaint against an
entity that it refers to as “Collagensei/Gensei Global Industries” asserting that
Collagensei/Gensei Global Industries is liable to Nutra Food for supplying the
contaminated collagen. ECF 32.
Three parties filed motions to dismiss. Total Food filed a motion to dismiss
Talbot’s claim for attorneys’ fees. ECF 9. AusVita filed a motion to dismiss Nutra
Food’s third-party complaint against it for failure to join an indispensable party
under Rule 19 and failure to state a claim. ECF 27. And “Collagensei Inc.” filed a
motion to dismiss Nutra Food’s third-party complaint against “Collagensei/Gensei
Global Industries” for lack of personal jurisdiction and failure to state a claim. ECF
41.

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DISCUSSION & ANALYSIS
I.

Total Food’s motion to dismiss Talbot’s claim for attorneys’ fees (ECF
9).
Total Food argues that Talbot’s claim for attorneys’ fees should be dismissed

because Talbot doesn’t allege any “statute, agreement, or established exception that
would permit” it to recover attorneys’ fees from the sole count of negligence against
Total Food. ECF 9, p. 2. Talbot argues in response that (1) the motion is premature;
and (2) Rule 12(b)(6) is not the proper procedural vehicle for dismissing a prayer for
relief. ECF 15. The Court agrees with Total Food.
To begin with, contrary to Talbot’s assertions, Total Food’s motion is not
premature and is procedurally proper because “a Rule 12(b)(6) motion is the
appropriate vehicle for seeking dismissal of a request for attorney’s fees that a party
contends are not recoverable.” Pods Enterprises, LLC v. Almatis, Inc., No. 16-993,
2016 WL 7440276, at *2 (W.D. Pa. Dec. 27, 2016) (Mitchell, M.J.); China Max, Inc. v.
S. Hills CN LLC, No. 14-211, 2015 WL 3407869, at *3 (W.D. Pa. May 27, 2015)
(Bissoon, J.) (“Traditionally, when a plaintiff seeks damages that are not recoverable,
a defendant will move to dismiss the prayer for that particular relief under Federal
Rule of Civil Procedure 12(b)(6)”).
Under Pennsylvania law “a litigant cannot recover counsel fees from an
adverse party unless there is express statutory authorization, a clear agreement of
the parties, or some other established exception.” Trizechahn Gateway LLC v. Titus,
976 A.2d 474, 482-83 (Pa. 2009). Here, Talbot alleges only a tort claim and does not
point to any of the established exceptions for recovery of attorneys’ fees.
As such, the Court grants Total Food’s motion and dismisses Talbot’s request
for attorneys’ fees as to the negligence claim against Total Food.
II.

AusVita’s motion to dismiss Nutra Food’s third-party complaint (ECF
27).
Nutra Food filed a third-party complaint against AusVita, asserting claims for
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indemnification and contribution. ECF 8, ¶ 10. AusVita moved to dismiss Nutra
Food’s third-party complaint, arguing that it should be dismissed because: (1) Nutra
Food failed to join a necessary or indispensable party (i.e., Collagensei/Gensei Global
Industries) under Rule 19; and (2) Nutra Food’s claims of negligence and strict
liability are barred by the economic loss doctrine. ECF 28, pp. 4-7. The Court denies
the motion for the following reasons.
A.

Failure to join a party under Rule 19.

AusVita first moves to dismiss on the basis that Nutra Food was obligated to
sue the collagen supplier higher up in the chain—i.e., the entity that supplied the
collagen to AusVita, who then, in turn, supplied it to Nutra Food. That supplier was
Collagensei/Gensei Global Industries, and AusVita argues that Collagensei/Gensei
Global Industries was a necessary or indispensable party under Federal Rule of Civil
Procedure 19. The Court disagrees.
Rule 19 provides that the joinder of certain parties is necessary if their joinder
is feasible, specifically:
A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party
if: (A) in that person’s absence, the court cannot accord complete relief
among existing parties; or (B) that person claims an interest relating to
the subject of the action and is so situated that disposing of the action
in the person’s absence may: (i) as a practical matter impair or impede
the person’s ability to protect the interest; or (ii) leave an existing party
subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1). Only if a court determines that a party’s joinder is necessary,
but not feasible, must the Court decide “whether the absent parties are
‘indispensable’ under Rule 19(b).” Gen. Refractories Co. v. First State Ins. Co., 500
F.3d 306, 312 (3d Cir. 2007). “If a court finds that a party is not ‘necessary’ to the
proceedings, the party is, by definition, not ‘indispensable’ to the action.” MallalieuGolder Ins. Agency, Inc. v. Exec. Risk Indem., Inc., 254 F. Supp. 2d 521, 525 (M.D. Pa.
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2003).
The first inquiry under Rule 19(a)(1)(A) is whether complete relief can be
afforded among the parties already in the case. Angst v. Royal Maccabees Life Ins.
Co., 77 F.3d 701, 705 (3d Cir. 1996) (“Completeness is determined on the basis of
those persons who are already parties, and not as between a party and the absent
person whose joinder is sought.”). The second inquiry under Rule 19(a)(1)(B)(i) and
(ii) is whether disposition of the action without the absent party may impair or
impede the party’s ability to protect its interest or lead to inconsistent judgments.
Fed. R. Civ. P. 19.
Here, AusVita states that “the failure of [Collagensei Global Industries] to be
joined into the case would essentially mean this Court could not ultimately provide
complete relief between the current parties, as it is patently clear that [Collagensei
Global Industries] stands in the best position to address all issues relating to design,
manufacturing, packaging, labeling, and shipping of the alleged contaminated
collagen in question.” ECF 28, pp. 4-5.
This argument fails for two reasons. First, there is no reason the Court cannot
afford complete relief between the parties already in the case. Collagensei/Gensei
Global Industries, if added, would simply be a joint tortfeasor. Bailey-P.V.S. Oxides,
LLC v. S & K Packaging, Inc., No. 8-1596, 2009 WL 3294862, at *2 (W.D. Pa. Oct. 13,
2009) (Ambrose, J.) (“[A] person suffering damages due to a defective product may
sue and recover from anyone in the chain of distribution; those in the chain are joint
tortfeasors.”). And “[i]t is well-established that not all joint tortfeasors must be joined
as defendants in a single lawsuit.” Alulis v. Container Store, Inc., No. 19-2564, 2020
WL 2556946, at *5 (E.D. Pa. May 20, 2020); Temple v. Synthes Corp., 498 U.S. 5, 7
(1990); Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 409 (3d
Cir. 1993) (“‘The mere fact, however, that Party A, in a suit against Party B, intends
to introduce evidence that will indicate that a non-party, C, behaved improperly does
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not, by itself, make C a necessary party.’” (quoting in parenthetical Pujol v.
Shearson/American Express, Inc., 877 F.2d 132, 136 (1st Cir. 1989))); Freedom Int’l
Trucks, Inc. of New Jersey v. Eagle Enterprises, Inc., No. 97-4237, 1998 WL 695397,
at *3 (E.D. Pa. Oct. 5, 1998) (“[I]t is well established that Rule 19 does not require
the joinder of joint tortfeasors, nor principals and agents, nor persons against whom
the defendant may have a claim for contribution.”).
This is so because the inquiry under Rule 19(a)(1)(A) focuses on whether the
Court can afford complete relief between the parties that are already in the case.
Angst, 77 F.3d at 705. Because Talbot and all other defendants already joined in this
case “will effectively resolve their entire controversy despite [Collagensei/Gensei
Global Industries’s] absence[,]” Collagensei/Gensei Global Industries is not a
necessary party under Rule 19(a)(1)(A). Incubadora Mexicana, SA de CV v. Zoetis,
Inc., 310 F.R.D. 166, 171 (E.D. Pa. 2015) (emphasis original) (denying motion to
dismiss for failure to join a party under Rule 19 because complete relief could be
afforded between plaintiff and American vaccine companies without joining Mexican
vaccine companies which defendants claimed were in the chain of distribution).
Second, Collagensei/Gensei Global Industries’s interests will not be impeded
nor will an existing party be subject “to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.” Fed. R. Civ.
P. 19(a)(1)(B)(i) and (ii). Again, as noted above, a finding of liability as to any or all
defendants would not preclude a liable defendant from bringing a later contribution
claim against Collagensei/Gensei Global Industries if that defendant so chose. See
Incubadora Mexicana, SA de CV, 310 F.R.D. at 171 (holding that third-party entities
were not “necessary because Defendants could—should they be found liable—
theoretically seek contribution from those entities in a later lawsuit.”). Additionally,
Collagensei/Gensei Global Industries hasn’t otherwise claimed an interest in this
case and “the fact that another court may assign liability differently from this Court
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does not subject [any party] to multiple or inconsistent obligations within the
meaning of subsection (a)(1)(B)(ii).” Incubadora Mexicana, SA de CV, 310 F.R.D. at
172.
For these reasons, Collagensei/Gensei Global Industries (or any other
upstream collagen supplier, for that matter) is not a necessary or indispensable party
under Rule 19, and any failure to include that entity is not grounds for dismissal.
Gen. Refractories Co., 500 F.3d at 313 (“[A] holding that joinder is compulsory under
Rule 19(a) is a necessary predicate to a district court’s discretionary determination
under Rule 19(b) that it must dismiss a case because joinder is not feasible[.]”). 1
B.

Economic loss doctrine.

AusVita also moves to dismiss Nutra Food’s complaint based on the economic
loss doctrine. ECF 27. Nutra Food “alleges that AusVita is liable for [Talbot’s] claims
and therefore liable to [Nutra Food], including under theories of breach of contract,
breach of express warranties, breach of implied warranties of merchantability and/or
fitness for a particular purpose, negligent, and strict products liability.” ECF 36, pp.
2-3. Nutra Food “also asserts that AusVita is solely and/or directly liable to [Talbot]
based on the same legal theories.” Id. at 3. AusVita argues that these claims are
barred by the economic loss doctrine.
Under Pennsylvania law, “the economic loss doctrine provide[s] that no cause
of action [can] be maintained in tort for negligence or strict liability where the only
injury was ‘economic loss’—that is, loss that is neither physical injury nor damage to
tangible property.” 2-J Corp. v. Tice, 126 F.3d 539, 541 (3d Cir. 1997). “Where a

1 After Nutra Food filed its third-party complaint against Collagensei/Gensei Global

Industries (ECF 32), AusVita and Nutra Food filed a stipulation through which
AusVita withdrew the portion of its motion to dismiss related to failure to join a
required party under Rule 19. ECF 34. Stipulations are, of course, not binding on
the Court, and the Court finds it furthers judicial economy in this case to reject the
stipulation and address this aspect of the pending motion.
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plaintiff’s only alleged damage is a diminution in the value of a product plaintiff has
purchased, Pennsylvania law says that plaintiff’s redress comes from the law of
contract, not the law of tort.” Martin v. Ford Motor Co., 765 F. Supp. 2d 673, 684
(E.D. Pa. 2011) (cleaned up).
While “negligence and strict liability theories do not apply in an action between
commercial enterprises involving a product that malfunctions where the only
resulting damage is to the product itself[,]” REM Coal Co. v. Clark Equip. Co., 563
A.2d 128, 134 (Pa. Super. Ct. 1989), the economic loss doctrine does not bar recovery
when there are damages for property other than the product itself. Tennis v. Ford
Motor Co., 730 F. Supp. 2d 437, 449 (W.D. Pa. 2010) (McVerry, J.) (denying motion to
dismiss negligence and strict liability claims when plaintiff suffered a loss of personal
property in addition to the vehicle); see New Hampshire Ins. Co. v. Dielectric
Commc’ns, Inc., 872 F. Supp. 2d 458, 462 (E.D. Pa. 2012) (denying motion to dismiss
when there was a factual dispute over whether plaintiff could show damage to “other
property”).

Damage to “inventory and raw materials” is not covered under the

economic loss doctrine. Keystone Foods, LLC v. Atl. Dry Ice, LLC, No. 15-756, 2015
WL 4130686, at *7 (E.D. Pa. July 9, 2015) (denying motion to dismiss because
plaintiff’s complaint sufficiently alleged damage to other property in the form of
needing to destroy contaminated vats of raw chicken). 2
Because Nutra Food’s negligence and strict liability claims against AusVita
flow from Talbot’s claims against Nutra Food, the Court must look to whether Talbot
2 The Pennsylvania Supreme Court recently addressed the economic loss doctrine in

Dittman v. UPMC, 649 Pa. 496 (Pa. 2018). One court has observed that “the central
question in the application of the economic loss doctrine under Dittman now seems to
be whether a duty between the parties was created by a contract, as opposed to in
tort—not merely whether the plaintiff suffered solely economic injuries.” Amig v.
Cnty. of Juniata, 432 F. Supp. 3d 481, 488 (M.D. Pa. 2020). However, after Dittman,
Pennsylvania federal courts continue to analyze products liabilities claims under the
framework described above. See Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Ford Motor
Co., No. 23-1857, 2024 WL 4339986, at *3 n.2 (E.D. Pa. Sept. 26, 2024).
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(as subrogee of Bakery Barn) has sufficiently alleged damages to property other than
the contaminated collagen. EQT Prod. Co. v. Aspen Flow Control, LLC, No. 20-295,
2020 WL 6545998, at *3 (W.D. Pa. Nov. 6, 2020) (Ranjan, J.) (declining to apply
economic loss doctrine because the primary plaintiff was “plausibly seeking
compensation for separate property damage”).
Talbot alleges that Bakery Barn was “forced to destroy approximately 3.5
million individual protein bars” that contained the contaminated collagen and
“expended over 105 manhours in addressing the contaminated collagen[.]” ECF 5-2,
¶¶ 76-77. Drawing all reasonable inferences in favor of Nutra Food (and Talbot),
these allegations plausibly show that Talbot sustained losses and damages to other
property beyond the loss of the raw material collagen. As such, the Court denies
AusVita’s motion to dismiss Nutra Food’s strict liability and negligence claims.
III.

Collagensei Inc.’s motion to dismiss Nutra Food’s third-party
complaint (ECF 41).
Collagensei Inc. filed a motion to dismiss Nutra Food’s third-party complaint

against Collagensei/Gensei Global Industries for failure to state a claim and lack of
personal jurisdiction. ECF 41. The Court grants the motion for failure to state a
claim. There are three problems with Nutra Food’s claim.
The first and main problem with Nutra Food’s claim here is that there is no
such entity as “Collagensei/Gensei Global Industries.”

As Nutra Food’s counsel

concedes, that is a trade name or “doing business as” name. ECF 50, 12:1-6. That is
not sufficient; the actual legal entity must be named. See WorldScape, Inc. v. Sails
Cap. Mgmt., No. 10-4207, 2012 WL 13028724, at *1 (D.N.J. Mar. 13, 2012) (granting
leave to amend to name correct party when plaintiff originally named entity that did
not exist); see also Fed. R. Civ. P. 15(c)(1) (allowing amendment and relation back if
there is “a mistake concerning the proper party’s identity.”).
The second problem with the claim is if the actual entity is Gensei Global
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Industries Co., Ltd., then, as the parties have represented to the Court, that is a
Chinese entity, which must be named and then served through foreign process. Fed.
R. Civ. P. 4(f) (describing rules for service of process on foreign entity).
And the third problem is if the proper entity to be named is “Collagensei Inc.,”
then Nutra Foods must, as its counsel concedes, proceed under an alter ego theory—
and the complaint alleges no facts to support that. See ECF 32; ECF 50, 26:20-27:5.
For these reasons, the Court will grant the motion and dismiss
Collagensei/Gensei Global Industries. This is without prejudice to Nutra Foods filing
an amended third-party complaint to address the issues noted above. 3
CONCLUSION
Pursuant to the above, the Court hereby ORDERS as follows:
(1)

Total Food’s motion to dismiss Talbot’s claim for attorneys’ fees (ECF 9)
is GRANTED and Talbot’s claim for attorneys’ fees is DISMISSED
with prejudice;

(2)

AusVita’s motion to dismiss Nutra Food’s third-party complaint (ECF
27) is DENIED;

(3)

Collagensei Inc.’s motion to dismiss Nutra Food’s third-party complaint
(ECF 41) is GRANTED and Nutra Food’s third-party complaint is
DISMISSED without prejudice and with leave to amend. Any such
amended third-party complaint must be filed by April 8, 2025.
*********************

DATE: March 11, 2025

BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge

Given this ruling, the Court need not address Collagensei Inc.’s personaljurisdiction argument.
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