Fields v. Jobar International, Inc. et al

Filing 26

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 4/16/14. (tdai, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

DELLA L. FIELDS,
Plaintiff,
Civil Action No. 3:14CV50-HEH

JOBAR INTERNATIONAL, INC.,
and AMERIMARK DIRECT, LLC,
Defendants.

MEMORANDUM OPINION

(Defendants' Motions to Dismiss)

This is, in essence, a products liability action seeking damages for injuries

allegedly caused by a defective folding cane. The Complaint alleges four closely-related
causes of action: negligent design, failure to warn, breach of implied warranty, and
breach of express warranty. Jurisdiction is based on diversity of citizenship pursuant to
28U.S.C. §1332.

The case is presently before the Court on the Defendants' Motions to Dismiss
under Federal Rule of Civil Procedure 12(b)(6).1 Both parties have filed memoranda
supporting their respective positions. This Court will dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
the Court and argument would not aid in the decisional process.
1Defendant Jobar International, Inc.'s ("Jobar") Motion to Dismiss seeks only partial relief,

focusing solely on Count Four and portions of Count Three relating to warranty of fitness for a
particular purpose. Plaintiff does not contest the partial 12(b)(6) dismissal of the implied
warranty of fitness for a particular purpose claim. (PL's Mem. Opp'n to Jobar's Partial Mot.
Dismiss l,ECFNo. 15.)

Before evaluating each individual claim in the Complaint, an overarching
observation is warranted. The Complaint is conspicuously lean on facts. Each count
hues closely to the statutory or decisional elements of the alleged cause of action. See
Va. Code § 8.2-313-14. In Plaintiffs Memorandum in Opposition to Defendant
Amerimark Direct, LLC's Motion to Dismiss, Plaintiff succinctly captures her theory of

pleading, "[i]n the instant case, the Plaintiffhas pleaded all requisite elements of Counts
1, 2, 3 and 4. The Plaintiff is not obliged to present a detailed narrative; instead, she must

simply apprise the Defendants of the nature of the claim, which she has done." (PL's
Mem. Opp'n Mot. Dismiss 4, ECF No. 19.) Although Plaintiffmentions portions of the
standard of review for Rule 12(b)(6) motions articulated in Bell Alt. Corp. v. Twombly,

550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), Plaintiff seems to

employ the more relaxed notice pleading standard of Virginia Supreme Court Rule 1:4.
Under Rule 1:4, a pleading is sufficient "if it clearly informs the opposite party of the true
nature of the claim or defense." Va. Sup. Ct. R. 1:4(d). The Virginia standard for

assessing the sufficiency of a pleading is not as exacting as that employed in federal
courts. However, the line of demarcation between substantive and procedural issues,

which governs choice of law questions, is often murky.
In Erie R.R. v. Thompkins, 304 U.S. 64 (1938), "the Supreme Court held that

because Congress had no power to declare substantive rules of common law applicable in
a state, federal courts sitting in diversity must apply state substantive law, decisional as

well as statutory, in the adjudication of state-created rights." Hottle v. Beech Aircraft

Corp., Al F.3d 106, 109 (4th Cir. 1995). However, on procedural issues in diversity
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cases, federal courts apply federal procedural law. Therefore, in reviewing a facial

challenge to a complaint pursuant to Rule 12(b)(6), a federal court sitting in diversity
relies on the law of the state to assess the adequacy of the substantive elements of the

claim. However, the procedural law of the Court of Appeals for the Fourth Circuit is

employed to weigh the factual sufficiency of the pleadings. See Bayer AG v. Housey
Pharms., Inc., 340 F.3d 1367, 1371 (Fed. Cir. 2003). For clarity, before turning to an
evaluation of the individual claims in the Complaint, the Court will restate the now well

settled analytical framework in the Fourth Circuit.
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;...

it does not resolve contests surrounding the facts, the merits of a claim, or the

applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992). To survive Rule 12(b)(6) scrutiny, a complaint only need contain "enough
facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see
also Fed. R. Civ. P. 8(a)(2). ("A pleading that states a claim for relief must contain ... a

short and plain statement of the claim showing that the pleader is entitled to relief.")
Mere labels and conclusions declaring that plaintiff is entitled to relief are not enough.

Twombly, 550 U.S. at 555. Thus, "naked assertions of wrongdoing necessitate some
factual enhancement within the complaint to cross the line between possibility and

plausibility of entitlement to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
A complaint achieves facial plausibility when the facts contained therein support a
reasonable inference that the defendant is liable for the misconduct alleged. Twombly,

550 U.S. at 556; see also Iqbal, 556 U.S. at 678. This analysis is context-specific and

requires "the reviewing court to draw on its judicial experience and common sense."
Francis, 588 F.3d at 193. The court must assume all well pleaded factual allegations to
be true and determine whether, when viewed in the light most favorable to the plaintiff,

"they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 678.

It is also important to note that while Virginia has historically relied on a notice

pleading standard, more recent applications of that standard by the Supreme Court of
Virginia have rejected skeletal complaints devoid of factual support. In Preferred Sys.
Solutions, Inc. v. GP Consulting, LLC, the Supreme Court of Virginia noted:

Although Virginia is a notice pleading jurisdiction, seeRule 1:4(d), a
complaint must still "contain [] sufficient allegations of material facts to
inform a defendant of the nature and character of the claim" being asserted

by the plaintiff. PSS' complaint fails to meet this standard with respect to
the trade secret claim, for it contains nothing more than conclusory

assertions. The complaint, for instance, does not identify what trade secrets

GP misappropriated; instead, it simply references a laundry list of items
that PSS considers to be "Confidential Information." Nor does it identify

the improper means by which GP obtained the trade secrets or how GP has
used those secrets; rather, it merely states that "GP used improper means to

acquire and misappropriate PSS' Trade Secrets" and that "GP used the
Trade Secrets with a conscious disregard of PSS' rights and intending to
ruin PSS' business, reputation and client relationships."

Because PSS' complaint fails to set forth the material facts necessary
to sustain the trade secret claim, we conclude that the circuit court did not

err by dismissing the claim on GP's demurrer.
284 Va. 382,407 (2012) (internal citations omitted).

Whether this Court employs the federal standard of review articulated in Twombly

and Iqbal, or the Virginia standard of measure in Virginia Rule l:4(d), as clarified in

Preferred Sys. Solutions, Inc., most counts of the Complaint in this case fall short of the
mark.2

The Complaint consists of four counts: Count One - negligent design; Count Two
- failure to warn; Count Three - breach of implied warranty; and Count Four - breach of

express warranty. Both Defendants are named in each count, but Jobar's Motion to
Dismiss addresses only Counts Three and Four involving claims of breach of warranty.
In Count One, Plaintiff contends that the Defendants "designed, manufactured,

marketed, distributed, delivered, sold, tested, and inspected a certain adjustable folding

cane manufactured by the defendants ... for use by the plaintiff."3 (Compl. 2, ECF No.
1.) It further asserts that the folding cane was

defective, dangerous, unreasonably dangerous, inherently dangerous,
unsafe, unsuitable for the use of the plaintiff, and not of merchantable
quality.

3.

That on or about June 17,2012, the plaintiff was using the aforesaid

adjustable folding cane, and was caused to be injured.
4.
That the defendants negligently designed, manufactured, marketed,
distributed, delivered, sold, tested, and inspected the aforesaid adjustable
folding cane.

5.

That as a direct and proximate result of the negligence of the

defendants, as aforesaid, the plaintiff suffered severe and permanent
injuries ....
(Id.)

Defendant Amerimark Direct, LLC ("Amerimark") contends that Count One is

rich in conclusions but scant on supporting facts. The most prominent shortcoming,

2In Plaintiffs Response to Defendants' Motions to Dismiss under Rule 12(b)(6), she appears to
acknowledge that the factual assertions supporting herclaims are sparse. She suggests that
disclosure of critical facts, such as the nature of the alleged defect of the cane, should abide the
discovery process. (PL's Mem. Opp'n 6.)

3The Complaint fails to particularize the specific acts of each Defendant.

according to Amerimark, is Plaintiffs failure to identify the defect in product design. "In
order to sustain a products liability claim for negligent design under Virginia law, 'the
plaintiff must prove that the product contained a defect which rendered it unreasonably

dangerous for ordinary or foreseeable use.'" Redman v. John D. Brush & Co., Ill F.3d
1174, 1177 (4th Cir. 1997) (quoting Alevromagiros v. Hechinger Co., 993 F.2d 417,420

(4th Cir. 1993)). "In addition, the plaintiff must establish that the defect existed when it
left the defendant's hands and that the defect actually caused the plaintiffs injury."

Alevromagiros, 993 F.2d at 420. Plaintiff rejoins that while the nature of the defect must
be demonstrated to prove an actionable claim, it is not necessary at the pleading stage.
This Court disagrees.

It is impossible for this Court to determine whether or not Plaintiff states a

plausible claim for negligent design without some disclosure in the pleading ofthe
alleged defect ordeficiency in the design ofthe product, and how such defect was the
proximate cause of Plaintiffs alleged injuries. As the U.S. Supreme Court noted in

Twombly, a complaint must contain "more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do ...." 550 U.S. at 555. Count

One, alleging negligent design, is devoid of necessary factual enhancement. See Ball v.
TakedaPharm. Am. Inc., 2013 U.S. Dist. Lexis 112143 at 18-20 (E.D. Va. 2013) (citing

Ojeda v. Louisville Ladder, Inc., 410 Fed. Appx. 213 at 4 (11th Cir. 2010)).
Count Two, a claim of failure to warn, is equally deficient. Here the core
contention, as framed in the Complaint, is

[tjhat the defendants negligently failed to warn the plaintiff of the defective,
dangerous, unreasonably dangerous, inherently dangerous, unsafe,
unsuitable and unmerchantable condition of the aforesaid adjustable folding
cane.

5.
That as a direct and proximate result of the negligence of the
defendants, as aforesaid, the plaintiff suffered severe and permanent
injuries ....
(Compl. 3.)

As Defendant Amerimark points out, central to a determination of whether Count

Two states a plausible cause of action, is a factual basis for asserting that Plaintiff either
knew or had reason to know that its product was dangerous. Owens-Corning Fiberglas

Corp. v. Watson, 243 Va. 128, 134 (1992). Such knowledge is a critical component of a
failure to warn claim. Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 962

(1979). As the Supreme Court of Virginia explained in Owens-Corning, the term "reason
to know" denotes '"the fact that the actor has information from which a person of

reasonable intelligence or of the superior intelligence of the actor would infer that the fact

in question exists, orthat such person would govern his conduct upon the assumption that
such fact exists.'" Owens-Corning, 243 Va. at 135 (quoting Restatement (Second) of
Torts § 12). And, as the court reiterated in that case, "[a]s we said in Featherall, the

appropriate standard in Virginia is whether a manufacturer has a reason to know, not
whether the manufacturer should know" Owens-Corning, 243 Va. at 136 (emphasis in
original).

Aside from the failure of the Complaint to identify the specific defect in the cane,

Count Two provides no information from which the Court could conclude that
Amerimark was aware that its product was dangerous, giving rise to a duty to warn.

The language employed by Plaintiff in both Counts One and Two is a sweeping

composite of legal conclusions. As the Fourth Circuit explained in Francis v.
Giacomelli, in order to demonstrate a plausible claim a plaintiff must make a showing of
entitlement to relief. "[Pjlaintiffs may proceed into the litigation process only when their

complaints are justified by both law and fact." 588 F.3d at 193. In its current form,
Count Two is simply a succession of conclusory allegations denuded of factual content.
Count Three, which again casts a very wide net, purports to allege a breach of

implied warranty.4 Plaintiff alleges "[t]hat the defendants impliedly warranted that the
aforesaid adjustable folding cane was not defective, dangerous, unreasonably dangerous,

or inherently dangerous and that it was safe and suitable for the use of the plaintiffand
that it was of merchantable quality

" (Compl. 3.) The Defendants contend that

CountThree of the Complaint fails to delineate how Plaintiffs cane was defective,

dangerous, unsafe, and not of merchantable quality. They also emphasize that the
Complaint fails to allege that the cane was in unreasonably dangerous condition when it
"left Amerimark's hands." (Def. Amerimark's Reply Mem. 5, ECF No. 20.) Moreover,
there is no indication of what would place the Defendants on notice of the cane's
allegedly dangerous condition.

Plaintiff, relying on Hubbard v. Dresser, Inc., counters that she is not required to

identify the cane's specific defects at the pleading stage to support her implied warranty
claim. A close reading of Hubbard, however, does not appear to support this contention.
4As originally pled, Count Three alleged a breach of implied warranty of merchantability as well
as fitness. Plaintiff has agreed to dismiss that portionof the implied warranty count for fitness
for a particular purpose.
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In Hubbard, the Supreme Court of Virginia concluded that in order to survive a challenge

by demurrer, it was not necessary for the complaining party to plead with specificity the
trade or industry standard for merchantability. 271 Va. 117, 124 (2006). The court in

Hubbard did not specifically address the necessity to plead the nature of the defect
alleged to have caused the breach.

Virginia Code § 8.2-314 provides that, in all contracts for the sale of goods by a
merchant, a warranty is implied that the goods will be merchantable. "To be

merchantable, the goods must be such as would pass without objection in the trade and as
are fit for the ordinary purposes for which such goods are used." Bayliner Marine Corp.
v. Crow, 257 Va. 121, 128 (1999) (internal quotations omitted); Va. Code § 8.2314(2)(a),(c).

Without a description of the allegedly dangerous defect, this Court is unable to
determine whether Plaintiff has pled an actionable claim for breach of implied warranty

that is plausible. While Plaintiff need not particularize the standards of merchantability
in the industry, it must provide some explanation of the cane's defective nature at the
time it was manufactured or sold to survive a motion to dismiss under Rule 12(b)(6).

Plaintiffs last claim is based on an alleged breach of an express warranty. In
Count Four, Plaintiff maintains "[t]hat the defendants expressly warranted that the

adjustable folding cane was not defective, dangerous, unreasonably dangerous, or

inherently dangerous, and it was safe and suitable for the use of the plaintiff, specifically
that the cane would support weights up to 250 pounds

" (Compl. 4.) The statutory

basis for Plaintiffs express warranty claim is found in Va. Code § 8.2-313. This
provision reads in pertinent part:

(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the
buyer which relates to the goods and becomes part of the basis of the
bargain creates an express warranty that the goods shall conform to the
affirmation or promise.

(b) Any description of the goods which is made part of the basis of
the bargain creates an express warranty that the goods shall conform to the
description....
Va. Code §8.2-313.

The Defendants draw the Court's attention to what they contend are fatal

deficiencies in Plaintiffs breach of express warranty claim. First, Defendants contend

that although Plaintiffalleges in CountOne that the Defendants "marketed, distributed,
delivered, sold ... a certain adjustable folding cane," there is no allegation in Count Four

that they sold the folding cane at issue in this case to Plaintiff, or that they expressly

made any specific warranties to her. (Compl. 2.) Secondly, they argue that Count Four is
inadequate in that it fails to state that the affirmation of fact was part of the basis of the
bargain. The Supreme Court of Virginia, which decides issues of substantive proof of
state law-based claims, has rejected both arguments.

In Yates v. Pitman Mfg., Inc., the court observed that "[a]n affirmation of fact is
presumed to be a part of the bargain, and any fact that would remove such affirmation out

of the agreement 'requires clear affirmative proof.' Additionally, a plaintiff is not
required to show that he relied upon the affirmation in order to recover under an express

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warranty claim." 257 Va. 601, 606 (1999) (quoting Daughtrey v. Ashe, 243 Va. 73, 78
(1992)). The court in Yates further held that "[manufacturer's] affirmation of fact created

an express warranty that applied to Yates even though he was not the purchaser of the
crane unit." Yates, 257 Va. at 606.

It is well settled in the Fourth Circuit that in considering a motion to dismiss under

Rule 12(b)(6), a plaintiffs well pleaded allegations are taken as true and the complaint is
viewed in the light most favorable to the plaintiff. T.G. Slater & Son v. Donald P. &
Patricia A. Brennan LLC, 385 F.3d 836, 841 (2004). It is equally well established that

legal conclusions are entitled to minimal weight. Iqbal, 556 U.S. at 678. It is often
difficult during the context-specific analysis of a complaint to distinguish factual

allegations from legal conclusions. In the immediate case, Count Four clearly states an
alleged affirmation of fact which, if proven, could plausibly form the basis of an express

warranty. Furthermore, viewing the Complaint in the light most favorable to Plaintiff, a
court could conclude that one or both of the Defendants sold the adjustable folding cane

to Plaintiff. While the factual basis supporting Count Four is reed thin, it appears to state
a sufficiently plausible claim to survive this stage of the proceedings.
Based on the foregoing analysis, Defendant Amerimark's Motion to Dismiss will
be GRANTED as to Counts One, Two, and Three. Defendant Jobar's Partial Motion to
Dismiss will also be GRANTED as to Count Three. Counts One, Two, and Three will
therefore be DISMISSED WITHOUT PREJUDICE.

Although counsel's crafting of the Complaint in this case is the quintessence of
minimalist pleading, the Defendants' Motions to Dismiss Count Four will be DENIED.
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An appropriate Order will accompany this Memorandum Opinion.

w*

/s/

Henry E. Hudson
United States District Judge

Datet-ZfrfirH./^aa/fr
Richmond, VA

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