Michnovez v. Blair Llc

795 F.Supp.2d 177

John MICHNOVEZ, individually and as Executor of the Estate of Velma Michnovez; and Susan Michnovez

v.BLAIR, LLC; A–One Textile and Towel Industries; Bureau Veritas Consumer Products Services (Pre) Ltd.; Bureau Veritas Consumer Products Services, Inc.; and Bureau Veritas, S.A.

Civil No. 10–cv–110–LM.

United States District Court, D. New Hampshire.

June 13, 2011.

Alan L. Cantor, David P. Angueira, Edward M. Swartz, Swartz & Swartz, Boston, MA, for Plaintiffs.D. Patterson Gloor, Jori L. Young, Steven M. Shear, Gloor Law Group, Chicago, IL, Dona Feeney, Feeney Rousseau & Fraas, PLLC, Manchester, NH, for Defendants.

ORDER

LANDYA McCAFFERTY, United States Magistrate Judge.

In twelve counts, plaintiffs assert nearly identical claims for wrongful death, enhanced compensatory damages, conscious pain and suffering, personal injuries, and negligent infliction of emotional distress against each of two defendants: Blair, LLC (“Blair”) (Counts I–V) and A–One Textile and Towel Industries (“A–One”) (Counts VII–XI). Plaintiffs assert the same six claims against Bureau Veritas, S.A. (“BV S.A.”), Bureau Veritas Consumer Products Services, Inc. (“BV Inc.”), and Bureau Veritas Consumer Products Services (Pre) Ltd. (“BV Ltd.”) (Counts XIII–XVIII). Plaintiffs' claims arise from the death of Velma Michnovez, which occurred when a bathrobe she purchased from Blair caught fire while she was wearing it. Before the court is BV Inc.'s motion to dismiss all six of the claims asserted against it. Plaintiffs object. For the reasons given, BV Inc.'s motion to dismiss is granted.

The Legal Standard

A motion to dismiss for “failure to state a claim upon which relief can be granted,” Fed.R.Civ.P. 12(b)(6), requires the court to conduct a limited inquiry, focusing not on “whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). That is, the complaint “must contain ‘enough facts to raise a reasonable expectation that discovery will reveal evidence’ supporting the claims.” Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

When considering a motion to dismiss under Rule 12(b)(6), a trial court “accept[s] as true all well-pled facts in the complaint and draw[s] all reasonable inferences in favor of plaintiffs.” Plumbers' Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir.2011) (quoting SEC v. Tambone, 597 F.3d 436, 441 (1st Cir.2010)). But, “naked assertions devoid of further factual enhancement need not be accepted.” Plumbers' Union, 632 F.3d at 771 (1st Cir.2011) (quoting Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009)). Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” United Auto., Aero., Agric. Implement Workers of Am. Int'l Union v. Fortuño, 633 F.3d 37, 41 (1st Cir.2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” United Auto. Workers, 633 F.3d at 40 (citation omitted). On the other hand, a Rule 12(b)(6) motion should be granted if “the facts, evaluated in [a] plaintiff-friendly manner, [do not] contain enough meat to support a reasonable expectation that an actionable claim may exist.” Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir.2008) (citations omitted). That is, “[i]f the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Plumbers' Union, 632 F.3d at 771 (citation omitted).

Background

The relevant factual allegations, drawn from plaintiffs' second amended complaint, are as follows.

Velma Michnovez died on November 23, 2007, when a cotton chenille bathrobe she was wearing caught fire while she was cooking at her stove. She purchased the bathrobe from Blair. The bathrobe was manufactured by A–One.

According plaintiffs, BV Inc.'s actionable conduct consists of the following:

Prior to January 9, 2006, the defendant Blair contracted with [BV S.A., BV Inc.] and/or [BV Ltd.] to test said model 30931 robe to ensure it complied with federal flammability standards. [BV Ltd.] conducted flammability testing on the robe. [BV S.A., BV Inc.] and/or [BV Ltd.], in test reports bearing the “Bureau Veritas” logo, certified to Blair that said model 30931 robes complied with federal flammability standards, resulting in said robes being marketed to consumers in the United States, including Velma Michnovez.

In April 2009, defendant Blair, in cooperation with the Consumer Product Safety Commission, recalled its model 30931 robes on the basis that they did not comply with federal flammability standards.

Prior to receiving notice of said recall, the plaintiffs in this action were not aware and had no reason to be aware that the robe worn by Velma Michnovez on the date of her death did not meet federal flammability standards and was otherwise in an unreasonably dangerous, defective condition.

The test results which [BV S.A., BV Inc.] and/or [BV Ltd.] provided to Blair were a substantial factor in Blair's decision to sell the model 30931 bathrobe to consumers.

Second Am. Compl. (doc. no. 55) ¶¶ 17–20.

The test report that plaintiffs refer to was attached as an exhibit to plaintiffs' motion for leave to file a second amended complaint. Given plaintiffs' reference to that report in their complaint, it is appropriate for the court to consider it when ruling on BV Inc.'s motion to dismiss. See United Auto. Workers, 633 F.3d at 39 (“when a complaint's factual allegations are expressly linked to—and admittedly dependent upon—a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it”) (quoting Trans–Spec Truck Serv. Inc. v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir.2008)). Each page of the test report has, in the upper left-hand corner, an oval-shaped graphic logo depicting a person, surrounded by the words “Bureau Veritas 1828.” Pl.'s Mot. for Leave, Ex. B (doc. no. 44–4), at 1. Below the oval is a bar that reads “MTL—ACTS.” Id. The first page of the report identifies the tests as having been conducted by “Bureau Veritas Consumer Products Services (Pte) Ltd.” Id. Finally, the bottom of the page lists the address, telephone number, fax number, e-mail address, and web address for BV Ltd. Id. The stationary provides neither the name of nor contact information for any other BV entity.

Regarding the relationship among the three BV entities that are defendants in this case, plaintiffs allege that “[a]t all times herein relevant, the defendants ... held themselves out as a single global entity known as ‘Bureau Veritas'. They did so through communications to customers on ‘Bureau Veritas' stationary and through advertisements and information published on the Internet and otherwise.” Second Am. Compl. ¶ 9. The stationary is described above. The portions of the BV web site appended to plaintiffs' motion for leave to file a second amended complaint identify and provide contact information for a BV entity in France and for BV Ltd. While the site mentions labs in Massachusetts, where BV Inc. is incorporated, and New York, where BV Inc. has a principal place of business, the site does not mention BV Inc. in any way.

Plaintiffs also allege that “[t]he defendants, [BV Ltd.] and [BV Inc.] were and still are wholly owned subsidiaries of [BV S.A.].” Second Am. Compl. ¶ 10. Finally, plaintiffs allege:

At all times herein relevant, the defendant, [BV Ltd.] was and still is an agent, department, alter-ego, and/or instrumentality of the defendants [BV Inc.] and [BV S.A.] in that these defendants held themselves out as a single global entity such that failure to treat them as such would lead to an inequitable result as to the plaintiffs in this action; in that unity of interest and ownership exists such that the separate personality of [BV Ltd.] no longer exists; in that individuals in [BV Inc.] and [BV S.A.] exercise substantial control over [BV Ltd.] and in that the Bureau Veritas entities share human resources.

[BV Ltd., BV Inc. and BV S.A.] and each of them, at all times relevant herein were the partners, agents, employers, employees, joint venturers, representatives, independent contractors, and other persons authorized, actually and/or impliedly, and ostensibly to act within the course and scope of their relationship and/or with the knowledge, consent, ratification and authorization of each of the other defendants.

Id. ¶¶ 11–12.

The heart of plaintiffs' complaint, as it relates to the BV defendants, is Count XIII, which asserts:

Because [BV Ltd., BV Inc. and BV S.A.] acted as a single global entity in connection with its activities in testing and certifying Blair Robe Model 30931, plaintiffs refer to said defendants as Bureau Veritas (“BV”) in connection with the allegations of the remaining counts herein.

At all times hereinconcerned, defendant BV knew or should have known that if it certified that said chenille bathrobes complied with Federal flammability Standards that its customer Blair would sell such robes within the United States, including the State of New Hampshire.

The death of Velma Michnovez was the direct and proximate result of the carelessness and negligence of the defendant as follows:

a. The defendant negligently tested and inspected said bathrobe and certified to its customer Blair that said robe complied with federal flammability standards, causing Blair to market said robe when it did not...