Ginzburg v. Electrolux Home Prods., Inc.

VITTORIO GINZBURG Plaintiff v. ELECTROLUX HOME PRODUCTS, INC. Defendant

CIVIL ACTION NO. 17-3384

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANUARY 19, 2018

NITZA I. QUIÑONES ALEJANDRO, J.

MEMORANDUM OPINION

INTRODUCTION

Before this Court is Defendant Electrolux Home Products, Inc.'s ("Defendant"), motion to dismiss, [ECF 3], the complaint of Plaintiff Vittorio Ginzburg ("Plaintiff"), on the grounds that the applicable statutes of limitations have expired and for Plaintiff's failure to timely effectuate service of process. The issues raised in the motion to dismiss have been fully briefed by the parties,¹ and are now ripe for disposition. For the reasons set forth, Defendant's motion to dismiss is granted.

BACKGROUND

In the complaint, Plaintiff avers that he is the owner of a condominium located at 323 S. 17^th Street, Unit 2, Philadelphia, PA 19103, (Compl. ¶ 4),² and that Defendant, a Delaware corporation with its principal place of business in North Carolina, is a manufacturer of householdappliances, including, inter alia, clothes dryers. (Notice of Removal ¶ 6)³ (see Compl. ¶ 5). Plaintiff further avers that on February 6, 2015, a two-alarm fire originated in the kitchen of his condominium caused by a defective clothes dryer allegedly manufactured by Defendant in 2005. (Compl. ¶¶ 4-5). The fire caused extensive damage to the condominium and to Plaintiff's property. (Id. ¶¶ 6-7).

Exactly two years later, on February 6, 2017, Plaintiff commenced an action against Defendant by filing a praecipe for a writ of summons in the Philadelphia County Court of Common Pleas, docketed as February Term 2017, Case No. 0122 (the "State Court Action").⁴ [ECF 3-4]. On June 30, 2017, Plaintiff's process server, Mr. Houssani ElKouhen, filed an affidavit of service in the State Court Action in which he attested to the following: that on May 5, 2017, he sent by certified mail a copy of the writ of summons to Defendant at 250 Bobby Jones Expressway, Martinez, Georgia 30907; and that the post office website confirmed delivery on May 9, 2017. [ECF 3-6].

On June 30, 2017, Plaintiff filed a complaint against Defendant in the State Court Action, which included claims of negligence, negligent failure to warn, breach of express and implied warranties, and strict product liability. Defendant removed the complaint to federal court on July28, 2017, [ECF 1], and, shortly thereafter, on August 4, 2017, filed the instant motion to dismiss. In the motion to dismiss, Defendant argues that because (1) Plaintiff has failed to timely and properly serve the writ of summons on Defendant, dismissal of this action is required pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(5), [ECF 3-1 at 4-7], and (2) Plaintiff's claims are time-barred by the applicable statutes of limitations, dismissal is required pursuant to Rule 12(b)(6). (Id. at 9-16).

On August 29, 2017, Plaintiff filed a proof of service in the federal court action certifying that on August 18, 2017, a copy of the complaint was served onto Defendant, via certified mail, at 2715 Washington Road, Augusta, Georgia 30909. [ECF 6].

LEGAL STANDARD

Rule 12(b)(5) permits a court to dismiss an action for "insufficient service of process." Fed. R. Civ. P. 12(b)(5). "A defendant may 'object to the plaintiff's failure to comply with the procedural requirements for proper service of the summons and complaint' as set forth in Rule 4." White v. Green, 2009 WL 3209647, at *1 (E.D. Pa. Oct. 6, 2009) (quoting Thompson v. Sears, Roebuck and Co., 2006 WL 573796, at * 2 (E.D. Pa. Mar. 3, 2006)). "In resolving a motion under Rule 12(b)(5), the party making the service has the burden of demonstrating its validity when an objection to service is made." Id. (quoting Thompson, 2006 WL 573796, at * 2).

When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." See Fowler v. UMPC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). The court must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'"Id. at 211 (quoting Iqbal, 556 U.S. at 679). The complaint must do more than merely allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Id. (citations omitted). "[W]here the well-pleaded facts do not permit the court 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)) (alterations in original). "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." Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. To survive a motion to dismiss under Rule 12(b)(6), "a plaintiff must allege facts sufficient to 'nudge [his] claims across the line from conceivable to plausible.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570).

DISCUSSION

As noted, Defendant's arguments for dismissal are grounded on Rule 12(b)(5) and Rule 12(b)(6). Each of these grounds for dismissal will be addressed separately.

Rule 12(b)(5) Argument.

Defendant relies on Rule 12(b)(5) to argue that Plaintiff's complaint should be dismissed because the writ of summons was mailed to the wrong address, was untimely, and Plaintiff did not include a proof of service or other evidence that the writ of summons was received by Defendant as required by the Pennsylvania Rules of Civil Procedure (the "Pennsylvania Rules"). [ECF 3-1 at 6-7]. In his response, Plaintiff disagrees and argues, inter alia, that Defendant's Rule 12(b)(5) argument lacks merit because after this action was removed from state to federalcourt on July 28, 2017, Plaintiff properly served Defendant on August 18, 2017, with a copy of the complaint at 2715 Washington Road, Augusta, Georgia 30909, the address Defendant contends is its correct address. [ECF 4-1 at 4-5]. Plaintiff's argument is correct.

In cases removed from state court to any federal district court, in which a defendant has either not been served or where service proves to be defective, service of process "may be completed or new process issued in the same manner as in cases originally filed in such district court." 28 U.S.C. § 1448. That is, once a case is removed, a plaintiff may perfect service within ninety days of removal. Fed. R. Civ. P. 4(m); 28 U.S.C.A. § 1448; see also Duc Long v. MTD Prod. Inc., 2016 WL 9774503, at *1 (E.D. Pa. Dec. 29, 2016). Here, Plaintiff's complaint was removed from state court to federal court on July 28, 2017. Plaintiff served Defendant with a copy of the complaint on August 18, 2017, well within the ninety-day time period for service. Under this procedural posture, Defendant's Rule 12(b)(5) motion to dismiss lacks merit and is, therefore, denied.⁵

Rule 12(b)(6) Argument.

Defendant moves to dismiss Plaintiff's complaint and his claims for negligence, negligent failure to warn, breach of express and implied warranties, and strict product liability pursuant to Rule 12(b)(6) as time-barred by the applicable statutes of limitation. [ECF 3-1 at 9-16]. Because each of these alleged causes of action asserted against Defendant arose in Pennsylvania, the lawof Pennsylvania applies. See, e.g., Zurich Am. Ins. Co. v. Indian Harbor Ins. Co., 235 F. Supp. 3d 690, 695 (E.D. Pa. 2017) (applying Pennsylvania law in diversity case); Caleb v. CRST, Inc., 2001 WL 438420, at *2 (E.D. Pa. Apr. 30, 2001) (applying Pennsylvania law and statute of limitations in diversity action).

Generally, under Pennsylvania law, Plaintiff's claims of negligence, negligent failure to warn, and strict product liability are subject to a two-year statute of limitations which accrues when the injury is inflicted. See 42 Pa. Con. Stat. Ann. § 5524(7); Wilson v. El-Daief, 964 A.2d 354, 361 (2009). Plaintiff's claim for breach of express and implied warranties is subject to a four-year statute of limitations, which begins to run when the tender of deliver was made. See 13 Pa. Con. Stat. Ann. § 2725(a), (b). This claim for breach of express and implied warranties will be discussed infra.

There is no dispute that on February 6, 2015, Plaintiff was aware of the fire damage caused by the allegedly defective clothes dryer. To avoid his claims of negligence, negligent failure to warn, and strict product liability being time-barred, Plaintiff was required to commence a civil action by February 6, 2017.⁶ Under Pennsylvania Rules, which govern the filing of a civil action in the Pennsylvania state courts, a Plaintiff can commence a civil action by filing either a complaint or a praecipe for a writ of summons. Pa. R. Civ. P. 1007. On February 6, 2017, the last day to commence an action, Plaintiff filed a praecipe for a writ of summons. [ECF 1 at Ex. A]. The filing of a praecipe for a writ of summons tolls the statute of limitations, "only if the plaintiff makes a good faith attempt to serve the writ within [ninety] days of its issuance." See Collins v. Univ. of Pennsylvania, 35 F. App'x 352, 353 (3d Cir. 2002) (considering timeliness ofservice for in-state defendant);⁷ see also Williams v. Wexford Health Sources, Inc., 199 F. Supp. 3d 917, 923 (E.D. Pa. 2016); Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. Super. Ct. 2007). "A good faith effort, at a minimum, requires compliance with the Pennsylvania Rules of Civil Procedure." Collins, 35 F. App'x at 353; see also Devine v. Hutt, 863 A.2d 1160, 1167 (Pa. Super. Ct. 2004) ("The filing of a praec...