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Guerriero v. Sanford L.P.

United States District Court, D. New Jersey

April 28, 2017

THEMI GUERRIERO, Guardian ad Litem of A.G., a minor of six years, THEMI and ANGELO GUERRIERO, Individually, Plaintiffs,
SANFORD L.P. et al., Defendants.



         This matter comes before the Court by way of a Motion for Leave to File a Second Amended Complaint filed by Plaintiffs, Themi and Angelo Guerriero, personally and on behalf of their minor child, A.G. (“Plaintiffs”). D.E. 110. For the reasons set forth herein, the motion is granted in part and denied in part.


         This products liability action was originally filed in this Court on August 12, 2012. Compl., Exh. A. to Not. of Removal, D.E. 1. Plaintiffs allege that on June 13, 2011, A.G., who was then six years old, was injured when he poked himself in the eye with the cap of a Sharpie Ultra Fine Marker. Prop. Sec. Am. Compl. ¶2, D.E. 110-2. The Defendants, Sandford L.P., Newell Rubbermaid, Inc., North Carolina Plastics, Carolina Plastic, LLC, and CPP Global, LLC, allegedly had some unspecified roles in the “design, manufacture, supply, assembly, installation, maintenance, inspection, repair, packaging, distribution, advertising, marketing and/or sale” of the Sharpie marker. Id. at ¶1. All of Plaintiffs' causes of action are pled against Defendants jointly.

         On February 11, 2016, Defendants Newell Rubbermaid, Inc. and Sanford L.P. (“Defendants”) moved for judgment on the pleadings to dismiss portions of Plaintiffs' First Amended Complaint. Defs.' Mot. to Dismiss, D.E. 78. Defendants argued that Plaintiffs' claims for negligence and failure to warn (Count One), breach of implied warranty of merchantability (Count Two), and strict liability for design and manufacturing defects (Count Four) were not recognized under New Jersey law because the New Jersey Products Liability Act (“PLA”), N.J.S.A. 2A:58C et. seq., subsumes any cause of action “for harm caused by a product, irrespective of the theory underlying the claim.” Id. at 4-5. Defendants therefore argued that Counts One, Two, and Four of Plaintiff's First Amended Complaint should be dismissed in favor of a single, PLA-based cause of action. Id. Judge McNulty agreed, and in an opinion and order dated August 2, 2016, granted the motion to the extent of dismissing Counts One, Two, and Four as pled in the First Amended Complaint, and directed Plaintiffs to file a Second Amended Complaint replacing Counts One, Two, and Four with a single claim of liability under the PLA. McNulty Opin. at 4-6, August 2, 2016, D.E. 105.

         In response to Judge McNutly's August 2, 2016 Opinion, Plaintiffs filed the present motion for leave to file a Second Amended Complaint. D.E. 110. In the proposed Second Amended Complaint, Plaintiffs add the suggested claim under the PLA, and two new claims for loss of consortium and negligent infliction of emotional distress (“NIED”). See Proposed Sec. Am. Compl., Exh. J to Pl.'s Mot. to Amend, D.E. 110-2. Defendants have opposed the motion, arguing that Plaintiffs' claim under the PLA in the proposed Second Amended Complaint does not comply with Judge McNulty's August 2, 2016 order and is not permitted under the PLA.[1] Br. in Opp. to Mot. D.E. 111. Defendants also argue that Plaintiffs' proposed amendments adding claims for loss of consortium and NIED are futile because neither cause of action, as pled, is recognized under New Jersey law. Id.


         Under Fed.R.Civ.P. 15, a plaintiff may amend his complaint once as of right, and “courts may grant subsequent amendments ‘when justice so requires.'” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003) (quoting Fed.R.Civ.P. 15(a)). The Court may deny leave to amend the pleadings only where there is (1) undue delay, (2) bad faith or dilatory motive, (3) undue prejudice, (4) repeated failures to cure deficiencies, or (5) futility of amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Long v. Wilson, 393 F.3d 390, 400 (3d Cir.2004) (“We have held that motions to amend pleadings [under Rule 15(a)] should be liberally granted.”) (citations omitted); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). Here, Defendants assert that the Court should deny Plaintiffs' motion for leave to file a second amended complaint because of the futility of Plaintiffs' proposed amendments. Defs.' Opp'n Br. at 4-5, D.E. 111. Because Defendants do not argue that there is undue delay, bad faith, undue prejudice, or repeated failure to cure deficiencies, the Court will base its determination on whether to grant Plaintiffs' motion to amend solely on whether it would be “futile” to allow their proposed new claims to proceed. See Assadourian v. Harb, 2008 WL 4056361, at *3 (D.N.J. 2008) (“The futility of amendment, or the failure of the plaintiff to articulate a claim, may also serve as a basis for denying a motion to amend.”).

         A court will consider an amendment futile if it “is frivolous or advances a claim or defense that is legally insufficient on its face.” Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (citations omitted) (internal quotations marks omitted). To determine whether an amendment is insufficient on its face, the Court employs the standard applied to Rule 12(b)(6) motions to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Under this standard, the question before the Court is not whether the movant will ultimately prevail, but whether the complaint sets forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (establishing that a “court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations”); Harrison Beverage, 133 F.R.D. at 468 (“‘Futility' of amendment is shown when the claim or defense is not accompanied by a showing of plausibility sufficient to present a triable issue.”). A two-part analysis determines whether this standard is met. Fowler, 578 F.3d at 210 (citing Ashcroft v. Iqbal, 556 U.S. 662, 629, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

         First, a court separates the factual and legal elements of a claim. Fowler, 578 F.3d at 210. All well-pleaded facts set forth in the pleading and the contents of the documents incorporated therein must be accepted as true, but the Court may disregard legal conclusions. Id. at 210-11; West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 n. 6 (3rd Cir.2010); see also Iqbal, 556 U.S. at 678 (noting that a complaint is insufficient if it offers “labels and conclusions, ” a “formulaic recitation of the elements of a cause of action, ” or “naked assertions” devoid of “further factual enhancement”) (alterations omitted) (internal quotations marks omitted).

         Second, as stated above, a court determines whether the plaintiff's facts are sufficient “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. As the Supreme Court instructed in Iqbal, “[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.” 556 U.S. at 678. The plausibility standard is not a “probability requirement, ” but the well-pleaded facts must do more than demonstrate that the conduct is “merely consistent” with liability so as to “permit the court to infer more than the mere possibility of misconduct.” Id. at 678-79 (citations omitted) (internal quotation marks omitted). This “context-specific task ... requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

a. Proposed Claim Under the PLA
Under the PLA, a manufacturer or seller of a product can be held liable for injuries only if the plaintiff proves that the “product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: (a) deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or (b) failed to contain adequate warnings or instructions, or (c) was designed in a defective manner.”

Fid. & Guar. Ins. Underwriters, Inc. v. Omega Flex, Inc., 936 F.Supp.2d 441, 446 (D.N.J. 2013) (quoting N.J.SA. 2A:58C-2). The PLA thus creates an exclusive cause of action for products liability claims, and the statute “does not recognize either negligence or implied breach of warranty as separate claims for harm caused by a defective product, ” as those claims are subsumed by the PLA. West v. Am. Honda Motor Co., 2008 WL 4104683, at *3 (D.N.J. 2008); see also Tirrell v. Navistar Int'l, 248 N.J.Super. 390, 398 (App. Div. 1991) (holding that New Jersey law does not ...

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