Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lutsky v. Monomouth Marine Engines, Inc.

United States District Court, Third Circuit

May 22, 2013

GARY J. LUTSKY, Plaintiff,


SUSAN D. WIGENTON, District Judge.

Before this Court is Defendant Mercury Marine's motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Also before this Court is Defendant Monmouth Marine Engines, Inc.'s motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court, having considered the parties' submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court GRANTS Mercury Marine's motion and DENIES Monmouth Marine Engines, Inc.'s motion in part and GRANTS it in part.


This case involves a dispute between Plaintiff Gary J. Lutsky ("Plaintiff"), Mercury Marine[1], and Monmouth Marine Engines, Inc. ("MM Engines"). Plaintiff purchased a marine engine for his boat from Mercury Marine. After some time, the engine failed to perform properly. Plaintiff sought to exercise his right to have the engine repaired pursuant to a one year warranty provided by Mercury Marine. Mercury Marine outsourced its repair services to MM Engines. While Plaintiff's vessel was being serviced by MM Engines, an immense storm occurred during which Plaintiff's vessel became damaged. Plaintiff now brings suit against Mercury Marine and MM Engines for damage to the vessel.


Plaintiff Gary J. Lutsky is the owner of a twenty four foot recreational vessel named Tail Dancer and its trailer. ( See V. Compl. ¶ 5.) The Tail Dancer is a twenty-four foot Albemarle Cuddy Express. ( See id. ¶ 11.) On or about June 30, 2011, Plaintiff Gary J. Lutsky purchased a marine engine manufactured by Mercury Marine. ( See id. ) The marine engine included a one year warranty that covered defects in the engine. ( See id. ) Plaintiff took possession of the marine engine in July 2011, and the engine was installed in the Tail Dancer by March 2012. ( See id. ) "The marine engine failed to perform in accordance with normal operating expectations and was substandard or defective" causing Plaintiff to seek remedy from Mercury Marine pursuant to the one year warranty before it expired. ( See id. ¶ 12.) On August 20, 2012, after multiple efforts by MM Engines to trouble-shoot the marine engine, and MM Engines' failure to identify and correct the problem at the vessel's dockside, Plaintiff delivered the marine engine to MM Engines' facility in Neptune, New Jersey. ( See id. ¶ 13.) Mercury Marine complied with its one year warranty by delivering a new reconditioned marine engine to MM Engines to be installed in the Tail Dancer some time in September 2012. ( See id. ¶ 14.) "MM Engines contacted Plaintiff to confirm that [Mercury Marine] had authorized [twelve] hours of warranty repair/installation", but informed Plaintiff that the installation would actually require fourteen hours of labor. ( Id. ¶ 15.) Plaintiff agreed to pay MM Engines for the extra two hours of labor to forego any delay in commencing the installation. ( See id. ) MM Engines commenced the installation of the new marine engine, but had to halt operations for various reasons. ( See id. ¶ 16.) MM Engines later informed Plaintiff that the installation was scheduled to resume on October 23, 2012, and that Plaintiff would be notified when installation was complete. ( See id. ¶ 17.)

On October 29, 2012, Superstorm Sandy hit New Jersey. ( See id. ¶ 18.) On or about November 12, 2012, Plaintiff contacted MM Engines "who advised that Plaintiff's [] vessel was located about 1 ½ miles' away, but was recovered and returned to [MM Engines'] facility[] where [] Plaintiff's trailer had remained." ( Id. ) On November 14, 2012, Plaintiff went to MM Engines' facility in Neptune, New Jersey and was able to view the Tail Dancer and noticed that it was damaged and "had been sunk." ( Id. ¶ 19.) Plaintiff also noticed that "[a]ll equipment and electronics aboard the [Tail Dancer]... were either missing, damaged or in an otherwise unsound condition[, ] different from when the vessel was [given to MM Engines]." ( Id. ) Plaintiff further noticed that the replacement marine engine was aboard the vessel, but was unsecured, which Plaintiff took to mean that installation never took place. ( See id. ¶ 20.) Additionally, the "vessel's outdrive with two stainless steel propellers were missing[, ] which had been reported by [] MM ENGINES to have been placed on a pallet inside its Neptune, New Jersey [facility] while [installation was taking place]." ( Id. )

Based on the facts alleged in the complaint, Plaintiff brings claims, against both Defendants jointly and severally, for: (1) "breach of contract and/or warranty, including the warranty of workman-like performance, " (2) negligence, and (3) conversion. Plaintiff also alleges that he "sustained damages by having advanced paid marina slip fees for [the Tail Dancer for] the 2012 season which has, in part, went unused due to the events described [in the complaint]." ( Id. ¶ 21.)


The adequacy of pleadings is governed by Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint allege "a short and plain statement of the claim showing that the pleader is entitled to relief." This Rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal citations omitted); see Phillips v. Cnty of Allegheny , 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 "requires a showing' rather than a blanket assertion of an entitlement to relief.") (internal citation omitted). In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must "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 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 555). As the Supreme Court has explained:

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.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'

Id. (quoting Twombly , 550 U.S. at 556-57) (internal citations omitted).

Determining whether the allegations in a complaint are "plausible" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679 (internal citation omitted). If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, " the complaint should be dismissed for failing to "[show] that the pleader is entitled to relief" as required by Rule 8(a)(2). Id. (citing Fed.R.Civ.P. 8(a)(2)).

As a general rule, a district court deciding a motion to dismiss may consider only the contents of the pleadings. Pryor v. Nat'l Collegiate Athletic Ass'n , 288 F.3d 548, 560 (3d Cir. 2002) (internal citation omitted). However, there exists an exception to that general rule in that "[d]ocuments that the defendant attaches to the motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the claim.'" ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.