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Harris v. Ross Stores, Inc.

United States District Court, E.D. Texas, Sherman Division

April 4, 2018




         Pending 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.


         On or 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.[1] 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.

         On 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).

         On 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).

         On 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.

         On March 8, 2018, Ross[2] 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.

         On 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.


         I. Motion for Leave

         Rule 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)).

         II. Motion to Dismiss Pursuant to Rule 12(b)(6)

         The 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).

         A Rule 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 Fed.R.Civ.P. 8(a)(2)).

         In 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) ...

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