United States District Court, D. New Jersey
Neal A. Cowe, Plaintiff,
Jaynee A. Moormann, et al., Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on four motions.: (1) a motion
for judgment on the pleadings filed by defendant High Point
Property and Casualty Insurance Company, (ECF No. 48); (2) a
motion to dismiss filed by defendant Estate of Jayne A.
Moormann, (ECF No. 50); (3) a motion to modify discovery
decision filed by plaintiff Neal Cowe, (ECF No. 54); and (4)
a motion for summary judgment filed by Cowe, (ECF No. 56).
January 3, 2016, plaintiff alleges he became seriously ill
while eating dinner with defendant Jayne A. Moormann in the
parking lot of a fast food restaurant. (Amended Complaint
(AC), ECF No. 55 at ¶ 7). While the two were eating
their meals in Moormann's car, plaintiff alleges a foul
odor from the vehicle's water pump and/or heating system
emanated within the cabin. (Id. at ¶¶ 7,
8). The foul odor became so unbearable that the plaintiff
began to cough and vomit, which induced an abdominal hernia.
(Id. at ¶ 40). Later that evening, plaintiff
was taken to the emergency room at Raritan Bay Medical
Center, where he received medical attention and was charged
approximately $19, 000. (Id. at ¶ 25).
alleges that defendant A&M Diagnostics Used Auto Sales
was aware of the condition in the vehicle because they had
previously replaced the water pump in the vehicle and failed
to follow the manufacturer's instructions (Id.
at ¶ 36). He claims the vehicle had a fuel injector
leak, which was repaired by A&M. (Id. at ¶
58). Sometime around the end of 2015, Moormann first detected
the smell and brought her vehicle to A&M, but they
"didn't have time to look at her vehicle."
(Id. at ¶ 33). Plaintiff further alleges that
an employee of A&M used perfume to mask the smell when
Moormann arrived for a rescheduled appointment. (Id.
at ¶¶ 34, 39).
Moormann's insurance carrier, Plymouth Rock Insurance,
assured plaintiff that it would cover his emergency room
expenses. (Id. at ¶¶ 24, 66). However,
after investigating the matter, Plymouth concluded that
Moormann's vehicle was not the cause of plaintiff s
injury and closed his claims since there was a lack of
causation. (Id. at ¶ 70).
allegedly incurred medical expenses of approximately $168,
114. (Id. at ¶¶ 12, 47). As such, for the
injuries he sustained, plaintiff demands $150 million in
compensation. (Id. at ¶¶ 16, 28, 33, 39,
43, 49, 58, 70, 77).
High Point seeks judgment on the pleadings under Rule 12(c).
Defendant Estate of Moorman seeks to dismiss the complaint
under Rule 12(b)(6). A prior motion to dismiss was granted
dismissing all claims except negligence. Here, High Point and
the Estate of Moormann seek the same relief. The prior
decision gave plaintiff the right to amend the complaint. The
amended complaint only has one count for negligence. As a
result, both parties concede that the motions were rendered
moot by plaintiffs amended complaint. As such,
defendants' motions are denied as moot.
requests that this Court modify its prior denial of his
discovery motion and order defendants to respond to
plaintiffs discovery requests. The Magistrate Judge
previously ordered that a discovery schedule would be set at
the initial conference, (See ECF No. 35), which has
not been scheduled because of the pending motions to dismiss
(See ECF No. 40). On November 26, 2018, the Court
denied a similar discovery motion as premature because of
then-pending motions to dismiss. There is also no indication
that the parties have met and conferred as required by
Federal Rule of Civil Procedure 26(d)(1). Plaintiffs
discovery motion is denied as the initial conferences should
occur prior to discovery.
plaintiff has filed a motion for summary judgment with an
attached affidavit. Defendants A&M Auto Brokers, LLC, and
Estate of Moormann have filed written oppositions. The motion
is denied, as ...