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: James S. Calender and Diane Calender v. Nvr

September 30, 2011


The opinion of the court was delivered by: Hillman, District Judge


Plaintiffs, James S. Calendar and Diane Calender (hereafter, "Plaintiff"),*fn1 brought this action against Defendant, NVR, Incorporated (or, "Defendant" or "NVR"), trading as Ryan Homes, after James sustained injuries in a home he had recently purchased. The home was designed, manufactured, constructed, and sold by NVR. Plaintiff claims that he fell while exiting the attic through its access panel/opening. Plaintiff alleges that the attic's access panel/opening was unreasonably dangerous and defective, and states causes of action sounding in negligence (Count One), product liability and/or strict liability (Count Two), breach of contract (Count Three), breach of warranties (Count Four), and loss of consortium (Count Five). Presently before the Court is NVR's motion to dismiss Plaintiff's claims for failure to file an affidavit of merit insofar as those claims rely on a theory of design defect.

For the reasons expressed below, NVR's motion to dismiss Plaintiff's design defect claims under the New Jersey Affidavit of Merit Statute is granted.


This Court has jurisdiction pursuant to 28 U.S.C. § 1332. James and Diane Calender are citizens of the State of New Jersey.

NVR is incorporated and maintains its principal place of business in the Commonwealth of Virginia. Therefore, complete diversity exists between the parties. The amount in controversy is met because the allegations contained in Plaintiff's complaint sufficiently demonstrate that damages sought are in excess of $75,000, exclusive of interest and cost.*fn2


According to Plaintiff's complaint, NVR is "a corporation specializing in the sale, design and construction of residential homes and is a mass-developer and/or professional builder, specializing in constructing full communities." (Compl., ¶ 5). Plaintiff entered into an agreement with NVR to purchase a newly constructed home on March 23, 2008. NVR designed, manufactured, built, and sold the home purchased by Plaintiff.*fn3

On or around October 21, 2008, Plaintiff accessed the home's attic in order to change the filters on air conditioning units and HVAC systems. While exiting the attic, Plaintiff fell through its access panel/opening, and suffered severe and permanent injuries.

Plaintiff commenced this action by filing a complaint against NVR on June 30, 2010, in the Superior Court of New Jersey, Law Division, Camden County. The complaint alleged, inter alia, that NVR: (1) negligently designed, manufactured, constructed, and/or sold the home; (2) is subject to product liability because the access panel/opening was unreasonably dangerous and defective, and/or due to the failure to adequately warn of such conditions; (3) breached its contract to provide a safe, suitable home; and (4) breached its express and implied warranties. The complaint also includes a per quod claim for loss of consortium, and a plea for punitive damages.

NVR removed the suit to this Court on August 20, 2010. On January 21, 2011, NVR filed the motion to dismiss Plaintiff's complaint with respect to the design defect claims.


A. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

A district court, in 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 claim.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions[.]'" (citation omitted)). Under the Twombly/Iqbal standard, the Third Circuit has instructed a two-part analysis. First, a claim's factual and legal elements should be separated; a "district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 129 S. Ct. at 1950).

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 211 (quoting Iqbal, 129 S. Ct. at 1950). "[A] complaint must do more than allege the plaintiff's entitlement to relief." Id.; see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("The 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." (quoting Twombly, 550 U.S. at 556)). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005).

B. The New Jersey Affidavit of Merit Statute

Defendant argues that to the extent Plaintiff's claims allege or rely on design defects, those claims must be dismissed because Plaintiff did not file an affidavit of merit. By Defendant's estimation, an affidavit of merit is necessary for any design defect claims in this case because those claims ...

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