The opinion of the court was delivered by: Walls, Senior District Judge
Third-party defendant ABX Air, Inc. ("ABX") moves to dismiss defendants Aluminum Ladder Company ("ALC") and Alco-Lite Industries, LLC‟s ("Alco-Lite") third-party complaint or, alternatively, to bifurcate or sever the actions. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court decides ABX‟s motion without oral argument. ABX‟s motion to dismiss is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Ronald Egan worked for ABX. While on duty on August 25, 2007, he was using a ladder purportedly designed and manufactured by defendants Alco-Lite and ALC
("defendants"). The ladder suddenly and unexpectedly broke and Mr. Egan fell. Mr. Egan alleges that as a result of this fall, he has suffered severe physical and emotional pain.
The same day as the fall, Egan put an "out-of-service" sign on the ladder. He also moved the ladder from the tarmac at Newark Liberty International Airport to ABX‟s offices at the airport. The next day, Mr. Egan brought a workers‟ compensation claim against ABX. ABX investigated the matter "in order to assess the potential for third-party subrogation claims." (Def. Br., at 3.) One day later, Egan took pictures of the ladder. The photos were uploaded to ABX‟s computer system so that they could later be provided to Mr. Egan‟s counsel. Although aware of the possibility of litigation, ABX later disposed of the ladder. All that remains is a small piece of the foot/side rail.
On September 23, 2009, Egan and his wife brought suit against Alco-Lite and ALC alleging negligence, strict products liability and a claim for loss of consortium. On July 28, 2010, defendants filed a third-party complaint against ABX asserting claims for fraudulent concealment and negligence for spoliation of evidence concerning the destruction of the ladder.
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court is required to "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." Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 306 (3d Cir. 2007). "To 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.‟" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 546. Thus, "a district court weighing a motion to dismiss asks "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.‟" Twombly, 550 U.S. at 563 n.8 (citation omitted).
There is, however, a heightened pleading standard under Rule 9(b) for fraud claims.
"[T]he requirements of rule 9(b) may be satisfied if the complaint describes the circumstances of the alleged fraud with precise allegations of date, time, or place or by using some means of injecting precision and some measure of substantiation into their allegations of fraud." Bd. of Trs. of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 173 (3d Cir. 2002) (emphasis in the original). To satisfy this heightened pleading standard, "[p]laintiffs must plead with particularity the circumstances of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged." Knox v. Samsung Elecs., No. 08-4308, 2009 WL 1810728, at *5 (D.N.J. June 25, 2009).