United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendant Blumenthal Distributing,
Inc.'s (“Blumenthal”) Motion to Dismiss
Pursuant to Rule 12(b)(6) (Dkt. #53), Plaintiff Aaron
Harris's (“Harris”) Motion for Leave to file
an Amended Pleading (Dkt. #54), Blumenthal's Motion to
Quash (Dkt. #69), and Plaintiff's Motion for Continuance
of Summary Judgment Pursuant to Rule 56(d) and to Extend
Discovery Deadlines (Dkt. #70). After reviewing the relevant
pleadings and motions, the Court finds the that
Blumenthal's Motion to Dismiss should be denied,
Plaintiff's Motion for Leave should be granted,
Blumenthal's Motion to Quash should be granted, and
Plaintiff's Motion for Continuance and to Extend
Discovery Deadlines should be granted.
about September 14, 2015, Plaintiff visited a Defendant Ross
Store, Inc. (“Ross”) retail store and sat in a
chair allegedly manufactured and distributed by Blumenthal to
be sold in the Ross store. While sitting in the chair, the chair
broke causing Plaintiff to fall to the floor and sustain
alleged injuries. After the incident, Plaintiff informed Ross
of his injuries and Ross completed an incident report.
Plaintiff alleges that in the incident report Ross
acknowledged the need to preserve the chair as evidence.
Despite this, Plaintiff claims that Ross intentionally or
recklessly disposed of the chair.
January 27, 2017, Plaintiff initiated suit in state court. On
April 7, 2017, Ross removed the case to federal court. On
August 23, 2017, Plaintiff filed his Second Amended Complaint
(Dkt. #37). In his Second Amended Complaint, Plaintiff
alleged, in pertinent part, a product liability claim based
on an alleged manufacturing defect. Subsequently, Blumenthal
filed its Motion to Dismiss Pursuant to Rule 12(b)(6) (Dkt.
#53) alleging that Plaintiff's Second Amended Complaint
failed to provide fair notice of Plaintiff's claims and
contained conclusory allegations. In his response (Dkt. #54),
Plaintiff sought leave to file an amended pleading. Germanly,
Plaintiff's Third Amended Complaint adds a failure to
warn element to his product liability cause of action (Dkt.
#54, Exhibit 1 at pp. 12-13). Blumenthal filed its reply on
February 7, 2018, arguing that allowing Plaintiff's
request for leave “is prejudicial to Defendant, made in
bad faith, and under a dilatory motive to keep Defendant
Blumenthal in the lawsuit as an ‘extra
pocket.'” (Dkt. #56 at p. 4).
February 13, 2018, Ross and Plaintiff conducted depositions
of the following Blumenthal employees: Fred Rueda
(“Rueda”), Executive Vice President of Sales;
Steve Harris (“Harris”), Product Manager;
Katheryn Cook (“Cook”), Product Manager; and Lili
Ghavami (“Ghavami”), Director of Finance. On
February 14, 2018, Blumenthal filed its Motion for Summary
Judgment maintaining that it never distributed the chair in
question (Dkt. #66). On March 5, 2018, Plaintiff filed an
opposed motion to extend the deadline to respond (Dkt. #67),
which the Court granted (Dkt. #68). In its order, the Court
extended Plaintiff's response deadline until March 19,
2018 (Dkt. #68).
March 7, 2018, counsel for Plaintiff, Ross, and Blumenthal
engaged in email communications regarding taking additional
depositions of Blumenthal employees and representatives (Dkt.
#70, Exhibit 1). Specifically, counsel for Ross alleged that
a Blumenthal sales persons/liaison admitted to a Ross buyer
that Blumenthal distributed the chair in question (Dkt. #70
at Exhibit 1). Counsel for Ross identified this admission as
coming from Frank Blair (“Blair”),
Blumenthal's Regional Sales Manager. Further, counsel for
Ross pointed to Rueda's deposition transcript where Rueda
identified Blair as the person with the most knowledge
regarding the sale of chairs to Ross. Until Rueda's
deposition, Blumenthal allegedly never identified Blair as
someone with relevant knowledge.
March 8, 2018, Ross served subpoenas on and noticed the
depositions of Richard Blumenthal (“R.
Blumenthal”), President of Blumenthal Distributing;
Jennifer Blumenthal (“J. Blumenthal”), Corporate
Vice President of Human Resources Risk Management; and Blair
(Dkt. #69, Exhibit 1). Later that day, Plaintiff
cross-noticed the same depositions (Dkt. #69, Exhibit 2). The
subpoenas and notices commanded R. Blumenthal, J. Blumenthal,
and Blair to appear in Dallas, Texas on March 13, 2018, for
depositions. On March 9, 2018, Blumenthal filed its Motion to
Quash all three depositions (Dkt. #69). To support its
motion, Blumenthal argued that the three business-day notice
did not allow reasonable time to comply and that the
subpoenas required all three individuals to travel beyond the
geographical limits of Rule 45(c), incur substantial expense,
and subjected them to undue burden. Further, Blumenthal
claimed that the noticed individuals contained limited
knowledge of the case.
March 14, 2018, Plaintiff filed his Motion for Continuance of
Summary Judgment Pursuant to Rule 56(d) and to Extend
Discovery Deadlines (Dkt. #70). In his motion, Plaintiff
argued that further discovery is necessary to his ability to
provide a meaningful response to Blumenthal's motion for
summary judgment. On March 15, 2018, Blumenthal filed its
response (Dkt. #71) contending that additional discovery will
not create a genuine issue of material fact. On March 19,
2018, Plaintiff filed his reply (Dkt. #72) claiming that a
genuine issue of material fact exists as to whether
Blumenthal provided adequate warnings regarding the
chair's intended use and/or weight capacity. On March 20,
2018, Blumenthal filed its sur-reply (Dkt. #73) contending
that Plaintiff failed to plead a failure to warn claim and
even if such a claim exists, it cannot survive summary
judgment because inspection of the chair is impossible given
Ross' alleged destruction of it.
Motion for Leave
15(a) of the Federal Rules of Civil Procedure provides that a
party may amend its pleading once without seeking leave of
court or the consent of the adverse party at any time before
a responsive pleading is served. Fed.R.Civ.P. 15(a). After a
responsive pleading is served, “a party may amend only
with the opposing party's written consent or the
court's leave.” Id. Rule 15(a) instructs
the court to “freely give leave when justice so
requires.” Id. The rule “evinces a bias
in favor of granting leave to amend.” Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.
2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines,
Inc., 283 F.3d 282, 286 (5th Cir. 2002)). But leave to
amend “is not automatic.” Matagorda Ventures,
Inc. v. Travelers Lloyds Ins. Co., 203 F.Supp.2d 704,
718 (S.D. Tex. 2000) (citing Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 598 (5th Cir. 1981)). Whether to
allow amendment “lies within the sound discretion of
the district court.” Little v. Liquid Air
Corp., 952 F.2d 841, 845-46 (5th Cir. 1992). A district
court reviewing a motion to amend pleadings under Rule 15(a)
considers five factors: (1) undue delay; (2) bad faith or
dilatory motive; (3) repeated failure to cure deficiencies by
previous amendments; (4) undue prejudice to the opposing
party; and (5) futility of amendment. Smith v. EMC,
393 F.3d 590, 595 (5th Cir. 2004) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)).
Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face.
‘“A claim has facial plausibility when the
plaintiff pleads factual content that allows the [C]ourt to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“But where the well-pleaded facts do not permit the
[C]ourt to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 F. App'x 466, 470 (5th Cir. 2009)