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David Carroll v. Setcon Industries Inc

February 22, 2011


The opinion of the court was delivered by: Wolfson, United States District Judge:



Presently before the Court is a motion filed by Defendant Dow Chemical Company ("Dow" or "Defendant") to dismiss Plaintiff David Carroll's ("Plaintiff" or "Carroll") Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff's Amended Complaint alleges that Defendants SetCon Industries Inc. ("SetCon"), James Reed Sales, Inc. ("James Reed"), Peckham Industries, Inc. ("Peckham"), Dow, and fictitious defendants ("John Doe") are liable for injuries Plaintiff incurred from using a chemical substance ("product") in the course of his employment. The Amended Complaint brings the following counts against Dow: Count Seven, negligence; Count Eight, product liability; and Count Nine, breach of express and implied warranties. Plaintiff also brought similar causes of actions against the other Defendants. For the reasons set forth below, Dow's motion to dismiss is DENIED.


When considering a motion to dismiss under Rule 12(b)(6), the Court is obligated to accept as true allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in light most favorable to the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). As such the following facts are taken from the Amended Complaint and supporting documents.

On December 1, 2007, Plaintiff, an employee of Mountain Top Landscaping ("Mountain Top"), sustained burn injuries while using a chemical substance ("product") in the course of his employment. Am. Compl. 2. On this date the two-year statute of limitations period for personal injuries commenced. See N.J.S.A. 2A:14-2.

Shortly thereafter, on May 22, 2008, Plaintiff retained counsel, who contacted Mountain Top's workers' compensation carrier for information related to Plaintiff's workers' compensation claim as well as a possible third-party lawsuit. Certification of Paul J. Bender, Esq. at ¶ 2. On July 31, 2008, Plaintiff's counsel made a second request to Mountain Top's workers' compensation carrier. Id. at ¶ 3. On the same date, Plaintiff filed an Employee's Claim Petition with the New Jersey Division of Workers' Compensation regarding the injury, listing "liquid calcium chloride" (the product in question) as the cause of the injury. Copy of Employee's Claim Petition, attached to Certification of Jacqueline Charlton, as Exhibit A.

On May 4, 2009, Plaintiff's counsel made a third request to the worker's compensation carrier's counsel, this time seeking the contact information of the manufacturer and distributor of the product. Bender, Cert. at ¶ 4. Counsel reiterated this request on August 7, 2009 and on September 17, 2009 and specifically noted the impending statute of limitations deadline to file the complaint. Id. at ¶¶ 5, 7. After being granted permission to do so, Plaintiff's counsel contacted Mountain Top directly requesting information as to the identity of the manufacturer and/or distributer of the product. Id. at ¶ 8. It was not until November 13, 2009, when Mountain Top's workers' compensation carrier informed Plaintiff's counsel that the product was "manufactured by and/or purchased from" SetCon. Id. at ¶ 9.

On November 30, 2009, one day before the expiration of the statute of limitations, Plaintiff filed the original Complaint ("Complaint") naming SetCon and John Doe, a fictitious name, as Defendants. Id. at ¶ 10; Compl. 1; see N.J.S.A. 2A:14-2. The Complaint's First Count (negligence) identified SetCon as the supplier of the product and alleged that it was negligent in "supplying, producing, distributing and/or warning and/or instructing customers and/or their workers in the safe use and/or handling of the product in question." Compl. 2. The Second Count (product liability) claimed that the "product provided by the Defendant" caused Plaintiff's injuries because it failed to contain adequate warnings in accordance with product liability standards. Id. The Third Count (breach of express and implies warranties) claimed that SetCon provided and breached an express and/or implied warranty that the product was "manufactured to be fit for safe human contact." Id. at 3. The Fourth Count of the Complaint ("as to John Doe") "repeats each and every allegations of the First through Third Counts as if same were set forth herein at length" and described the John Doe defendant as representative of "corporations, partnerships, and any and all other individuals who/which may have played any role whatsoever in contributing to the injuries and damages more specifically described herein." Compl. 4. On December 1, 2009, the day after the Complaint was filed and two years after the date of the injury, the statute of limitations period expired. See N.J.S.A. 2A:14-2.

On May 27, 2010, almost six months after the statute of limitations expired, SetCon's counsel sent Plaintiff's counsel documents identifying Dow, as well as the other named Defendants, as the manufacturer and supplier of the product. Bender, Cert. at ¶ 16. Shortly thereafter, on June 25, 2010, Plaintiff filed the Amended Complaint, naming Dow, James Reed, and Peckham in place of the John Doe of the original Complaint. Id. at ¶ 17; Am. Compl. 1. The Seventh, Eighth, and Ninth Counts of the Amended Complaint inserted Dow as a defendant for each of the first three counts of the original Complaint (negligence, product liability, and breach of warranty). Defendant now moves to dismiss those counts against it.


When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 233 (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965). In affirming that Twombly standards apply to all motions to dismiss, the Supreme Court recently explained the principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49, 173 L. Ed. 2d 868 (2009). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. Therefore, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 1949. Moreover, in deciding a motion to dismiss, the Court may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of Plaintiffs' claim. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004).



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