2009 WL 2477516 (D.V.I. 2009)
Before the Court is the motion of defendant Nextran, Inc. ("Nextran") to dismiss this matter, to strike certain allegations, and for a more definite statement.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 2006, Eduardo Matos was driving a truck carrying concrete in an area known as Mahogany Run on St. Thomas, U.S. Virgin Islands. He suffered injuries when the truck rolled over. The truck was allegedly manufactured and sold by Nextran and defendant Mack Truck Sales of South Florida ("Mack Truck").
Mr. Matos and his wife, Santa Matos (together, the "Plaintiffs"), subsequently commenced this action against Nextran and Mack Truck (together, the "Defendants"), asserting six causes of action: (1) negligence; (2) breach of the warranty of fitness for a particular purpose; (3) strict liability; (4) breach of the warranty of merchantability; (5) loss of consortium; and (6) punitive damages.
Nextran thereafter made a limited appearance for the sole purpose of moving to dismiss this matter for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). That motion was denied. Matos v. Nextran, Inc., No. 2008-65, 2009 U.S. Dist. LEXIS 22898, 2009 WL 763791 (D.V.I. Mar. 19, 2009).
Nextran now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, Nextran moves to strike certain allegations in the complaint pursuant to Federal Rule of Civil Procedure 12(f) or for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e).
II. DISCUSSION
A. Rule 12(b)(6) Standard
When ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). All reasonable inferences are drawn in favor of the non-moving party. Alston v. Parker, 363 F.3d 229, 233 (3d Cir.2004). A court must ask whether the complaint contains either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. Bell Atlantic Corp., 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984)). While a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Id. at 555. To survive a motion to dismiss, a plaintiff must allege facts that raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true. Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir.2007).12
B. Rule 12(f)
Rule 12(f) provides that a district court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). A Rule 12(f) motion will be denied unless it can be shown that no evidence in support of the allegation would be admissible. Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir.1976). Allegations that are repugnant or that contain superfluous descriptions and not substantive elements of the cause of action also may be stricken. See, e.g., Alvarado–Morales v. Digital Equipment Corp., 843 F.2d 613, 618 (1st Cir.1988). Courts have considerable discretion in striking an allegation, but striking a party's pleading is an extreme and disfavored measure. See Delta Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir.2009); BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir.2007).
C. Rule 12(e)
Rule 12(e) allows a party to move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. Fed. R. Civ. P. 12(e). Such a motion must point out the defects complained of and the details desired. A motion may be granted where, for instance, a shotgun complaint fails to adequately link a cause of action to its factual predicates. Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1275 (11th Cir.2006); see also Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir.1999).
III. ANALYSIS
A. Rule 12(b)(6)
1. Counts Two and Four
Nextran first argues that the breach of warranty claims asserted in Counts Two and Four should be dismissed. Counts Two and Four assert claims for breach of the warranty of merchantability and breach of the warranty of fitness for a particular purpose, respectively. Both counts assert breaches of express and implied warranties.
Beginning with the express warranty claims, Virgin Islands law does not appear to differentiate between an express warranty of merchantability and an express warranty of fitness for a particular purpose. See V.I. Code Ann. tit. 11A, § 2-313.4 To state a claim for breach of an express warranty generally, a plaintiff must allege the following: (1) plaintiff and defendant entered into a contract; (2) containing an express warranty by the defendant with respect to a material fact; (3) which warranty was part of the basis of the bargain; and (4) the express warranty was breached by defendant. Beachside Assocs., LLC v. Okemo, LLC, No. 2006-233, 2008 U.S. Dist. LEXIS 105019, at *5, 2008 WL 5455402 (D.V.I. Dec. 31, 2008); see also V.I. Code Ann. tit. 11A, § 2-313.
Furthermore, although a person must be in privity to a contract to sue for damages for breach of such contract, under certain conditions a person may sue as a third-party beneficiary to a contract. Sanchez v. Innovative Tel. Corp., No. 2005-45, 2007 U.S. Dist. LEXIS 93255, at *4, 2007 WL 4800351 (D.V.I. Nov. 30, 2007). Virgin Islands law specifically extends express and implied warranties to third-party beneficiaries: a seller's warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured in person by breach of the warranty. V.I. Code Ann. tit. 11A, § 2-318.
In Count Two, the Plaintiffs allege that the Defendants, pursuant to a contract they consummated with Mr. Matos's employer, knew that the truck the Defendants manufactured and sold to Mr. Matos's employer was to be used as a concrete truck for the purpose of transporting, mixing and pouring concrete. They further allege that the Defendants knew and/or should have known that Mr. Matos would rely on the Defendants' skill and judgment to furnish a truck suitable for the intended purpose. Count Two also alleges that the Plaintiffs and Mr. Matos's employer relied on the Defendants' expertise as a designer/manufacturer of said trucks to design and manufacture the truck for them that was suitable for the intended purpose. According to that count, Mr. Matos was a beneficiary to the express and/or implied warranties under the contract for the truck. Specifically, the complaint alleges that the truck was defectively designed, manufactured and/or assembled, including, but not limited to, defective design of the chassis or frames and/or installation of the barrel/drum, and that the brakes on the truck were defective and/or did not operate properly and effectively to permit Plaintiff Eduardo Matos to control and stop the truck in a timely fashion. Finally, the Plaintiffs allege that the Defendants breached their warranty of fitness that the truck was fit for the particular and general purpose for the use for which said truck was intended.
In Count Four, the Plaintiffs allege that the Defendants expressly and impliedly warranted that the truck and its chassis and frame and brakes and other parts were fit for the ordinary purpose for which such goods are used and that Mr. Matos made use of the truck in reliance on said express and implied warranties. They also allege that the Defendants breached that express and/or implied warranty of merchantability by selling a truck that was not fit for the ordinary purpose for which such trucks are used. The Plaintiffs allege that they suffered injuries on account of that breach.
Missing from either Count Two or Count Four is either an explicit or even oblique allegation that the express affirmation of fact that the Defendants made to Mr. Matos's employer was part of the basis of the parties' bargain. Such an allegation is an essential element of a breach of an express warranty claim. See Sebago, Inc. v. Beazer East, Inc., 18 F.Supp.2d 70, 102 (D.Mass.1998), cited with approval in Cummings v. HPG Int'l, Inc., 244 F.3d 16, 24 (1st Cir.2001); O'Connor v. Kawasaki Motors Corp., 699 F.Supp. 1538, 1543 (S.D.Fla.1988). Accordingly, the Court finds that the Plaintiffs have failed to state a breach of an express warranty claim. Notwithstanding that deficiency, in accordance with this circuit's precedent, the Court will give the Plaintiffs an opportunity to amend their complaint with respect to their express warranty claims in Counts Two and Four. See Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir.2008).
The Court turns now to the implied warranty claims. To state a claim for breach of the implied warranty of merchantability, a plaintiff must allege that (1) goods were sold by a merchant; (2) the goods were not merchantable at the time of sale; (3) the plaintiff suffered an injury; (4) the plaintiff's injury resulted from the goods' non-merchantability; and (5) the seller had notice of the injury. Banks v. International Rental and Leasing Corp., 49 V.I. 970, 975 (D.V.I.2008); see also V.I. Code Ann. tit. 11A, § 2-314.
To state a claim for breach of the implied warranty of fitness for a particular purpose, a plaintiff must allege that (1) the seller had reason to know the particular purpose for which the buyer required the goods, (2) the seller had reason to know the buyer was relying on the seller's skill or judgment to furnish appropriate goods, and (3) the buyer in fact relied upon the seller's skill or judgment. See Beard Plumbing & Heating v. Thompson Plastics, 152 F.3d 313, 317 (4th Cir.1998); In re McDonald's French Fries Litig., 503 F.Supp.2d 953, 957 (N.D.Ill.2007); see also V.I. Code Ann. tit. 11A, § 2-315. For such a warranty to exist, the goods must be for a purpose other than their ordinary use.
As with the express warranty claim, privity of contract is required for both implied warranty claims. See Sanchez, 2007 U.S. Dist. LEXIS 93255, at *4. Based on the allegations in Counts Two and Four, the Court finds that the Plaintiffs have sufficiently stated a claim for breach of the implied warranties of merchantability and fitness for a particular purpose. Accordingly, the motion to dismiss will be denied with respect to those claims in Counts Two and Four.56
2. Count One
Nextran moves to dismiss Count One's negligence claim for failure to state a claim. To state a claim for negligence in the Virgin Islands, a plaintiff must allege (1) a duty; (2) a breach of that duty; (3) causation; and (4) damages. Charleswell v. Chase Manhattan Bank, N.A., 308 F.Supp.2d 545, 571 (D.Vi.2004); Nickeo v. Atl. Tele-Network Co., 45 V.I. 149, 160 (V.I.Terr.Ct.2003); see also Restatement (Second) of Torts § 281 (1965).7
In the general allegations section of their complaint, which is incorporated by reference into the substantive allegations of each count, the Plaintiffs allege that the Defendants designed, manufactured, assembled and/or sold a truck for Mr. Matos and other drivers to operate in their daily work of transporting and pouring concrete. In Count One itself, the Plaintiffs allege that Nextran caused a cement mixer to be mounted on the truck. They further allege that Nextran was responsible for performing the final inspection on the truck before selling and shipping it to Mr. Matos's employer and to make sure that the truck worked properly, was in good order and condition, and was free of all defects. According to the complaint, Nextran failed to fulfill that responsibility. The Plaintiffs further allege that they suffered injuries as a result of that failure. Specifically, Mr. Matos allegedly suffered serious physical injuries to his body, including his legs, arm, back and head. Mrs. Matos allegedly suffered a loss of consortium and was unable to enjoy the assistance, companionship and society of Mr. Matos and to engage in the customary joys of the marital relationship.
Although not stated explicitly, the allegations in the complaint make clear that the Defendants owed the Plaintiffs a duty to manufacture, design and/or sell a truck that was in good working condition. See, e.g., Fisher v. Roberts, 125 F.3d 974, 978 (6th Cir.1997); Carpini v. Pittsburgh & Weirton Bus Co., 216 F.2d 404, 406 (3d Cir.1954). The Plaintiffs further allege that the Defendants' failure to do so caused Mr. Matos's accident and, by extension, the Plaintiffs' various injuries. Because the Plaintiffs have specified negligent acts and characterized the duty whose breach caused their alleged injuries, the Court finds that the Plaintiffs' allegations are sufficient to defeat the Defendants' Rule 12(b)(6) challenge to Count One. The motion will thus be denied with respect to that count.
3. Count Three
Nextran urges the dismissal of Count Three's strict liability claim on insufficiency grounds. A plaintiff sufficiently states a strict liability claim against a seller of a product for physical harm if he alleges (1) the existence of a defect, (2) in an unreasonable dangerous condition, (3) which proximately causes the injury. Murray v. Fairbanks Morse, 610 F.2d 149, 154 (3d Cir.1979) (citing Restatement (Second) of Torts § 402A (1965)). The product must have reached the user or consumer without substantial change in the condition in which it was sold. Restatement (Second) of Torts § 402A(1)(b) (1965). Furthermore, the defendant must be engaged in the business of selling the product. See Erysthee v. El Nuevo Lirio Grocery, 25 V.I. 307, 311 (D.V.I.1990). To be unreasonably dangerous, a product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it. Restatement (Second) of Torts § 402A cmt. i (1965).8
In Count Three, the Plaintiffs allege that the Defendants designed, manufactured, assembled and/or sold to Mr. Matos's employer a truck for the benefit and use of Mr. Matos. They also allege that the truck contained an unreasonably dangerous defect at the time it was released from the Defendants' control. In particular, they claim that the truck was defectively designed, manufactured and/or assembled, including, but not limited to, defective design of the chassis or frames and/or installation of the barrel/drum that made control of the truck impossible, avoidance of the accident more difficult, and the resulting effects of the accident more severe. The Plaintiffs also allege that they suffered injuries on account of those unreasonably dangerous defects.
The Court finds these allegations adequately state a claim for strict liability. Accordingly, the Court will deny the motion to dismiss as it pertains to Count Three.
4. Count Six
In Count Six, the Plaintiffs allege that the Defendants are liable for punitive damages for their reckless disregard and indifference to the Plaintiffs' safety. Nextran contends that Count Six must be dismissed because the Plaintiffs have not pled any basis for awarding such damages.
The Court need not reach Nextran's contention that the Plaintiffs' allegations fall short of warranting a punitive damages award. It is well-established that a punitive damages claim cannot stand alone. See McDonald v. Davis, No. 2004-93, 2009 U.S. Dist. LEXIS 17309, at *56-57, 2009 WL 580456 (D.V.I. Mar. 5, 2009); see also Urgent v. Hovensa, LLC, No. 2006-105, 2008 U.S. Dist. LEXIS 77455, at *31, 2008 WL 4526677 (D.V.I. Oct. 2, 2008). Accordingly, the Court will grant Nextran's motion as it pertains to Count Six. This ruling is without prejudice to the Plaintiffs' request for punitive damages at the appropriate stage of these proceedings.
B. Rule 12(f)
Nextran asserts that the Court should strike certain allegations from the complaint, describing particular allegations as prejudicial: references to the Defendants' "illegal conduct," broad statements that the truck was unreasonably dangerous and that Defendants are strictly liable for all damages of every kind, and the loss of consortium allegation phrased to include references to negligence, breach of warranty, and other illegal acts or omissions.
To the extent Nextran seeks to strike the Plaintiffs' request to recover "all damages of every kind," the Court is unconvinced. That request appears in the Plaintiffs' strict liability claim, and damages are an element of such a claim. Although the Plaintiffs perhaps overreach by asking for any and all damages, that request is not inconsistent with expansive prayers for relief commonly drafted into complaints. Any damages the Plaintiffs seek will have to be proven at trial, if necessary; merely asking for them now works no prejudice to Nextran. In the absence of such prejudice, the Court will deny the motion to strike as it pertains to the Plaintiffs' damages request.
To the extent Nextran wants any references to the Defendants' alleged "illegal conduct" or "illegal acts" stricken, the Court is similarly unpersuaded. While illegality may not be an element per se of the Plaintiffs' substantive claims, it is at least conceivable that the Plaintiffs intend to show that the Defendants broke the law to prove their breach of warranty claims or their strict liability claim. See Lilley v. Charren, 936 F.Supp. 708, 713 (N.D.Cal.1996). The Court also fails to see what particular prejudice Nextran would suffer merely from allegations of illegality. Given the strong disfavor with which courts view motions to strike, the motion will be denied with respect to the complaint's fleeting allegations of illegality.
C. Rule 12(e)
Nextran argues that it is entitled to a more definite statement because the Plaintiffs have improperly commingled allegations in separate causes of action and incorporated preceding allegations by reference. Nextran's argument misunderstands ordinary pleading norms: incorporating preceding allegations by reference is common practice and is not inherently defective. Although stating express and implied warranty claims in separate counts might be clearer, a complaint need only provide a short and plain statement of the claim so that the defendant can reasonably prepare a response. Fed. R. Civ. P. 8(a)(2), 12(e).
Nextran also contends that the Plaintiffs should specify which claims are asserted against which of the Defendants. No authority requires that the Plaintiffs refer to each defendant by name in each substantive count, and the complaint does direct certain allegations at certain defendants by name. The Court does not find that the Plaintiffs' frequent references to the Defendants as a collective give rise to confusion or otherwise hamper Nextran's ability to defend itself.
IV. CONCLUSION
For the reasons given above, Nextran's motion will be denied in part and granted in part. The Plaintiffs will be afforded an opportunity to amend their complaint with respect to the breach of express warranty claims. An appropriate order follows.