United States District Court, D. New Jersey
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.
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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. 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.
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.”).
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
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).
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
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 ...