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Nilson v. Hershey Entertainment and Resorts Co.


September 14, 2007


The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge



Before the court is Defendants' motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. The parties have briefed the issues, and the matter is ripe for disposition.

I. Background

Plaintiff, a minor, brings the captioned action by his parents, in which recovery is sought for damages for personal injuries allegedly sustained as a result of having ridden a rollercoaster at Hersheypark, Pennsylvania. In the amended complaint Plaintiff alleges the following counts against Defendants, Hershey Entertainment and Resorts Company, ("HE&R") and Great Coasters International, Inc., ("GEII"):

1. Negligence, Gross Negligence, and/or Recklessness;

2. Product defect / Product Liability;

3. Product defect / Product Liability / Failure to Warn;

4. Breach of Contract;

5. Breach of Warranties;

6. Fraudulent Misrepresentation / False Advertising / Failure to Warn;

7. Wanton and Willful Disregard for Plaintiff's Safety;

8. Punitive Damages; and

9. Joint and Several Liability.

Both defendants have moved to dismiss Counts IV through IX of Plaintiff's amended complaint pursuant to Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim upon which relief may be granted. Each defendant raises similar reasons in support of their motions.

II. Legal Standard: Motion to Dismiss

A sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not contain detailed factual allegations, but a plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief as prescribed by Rule 8(a)(2). Id. at 1965; accord, e.g., Evancho v. Fisher, 423 F.3d 347, 350(3d Cir. 2005). A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, - U.S. -, 127 S.Ct. 2197, 2200 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). The court is not, however, "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quotations and citations omitted). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss.*fn1 Bell Atlantic Corp., 127 S.Ct. at 1965, 1974; Victaulic Co. v. Tieman, - F.3d -, No. 07-2088, 2007 WL 2389795, at *5 (3d Cir. Aug. 23, 2007).

III. Discussion

With this standard as a guide, the court has reviewed the arguments and case law in support of Defendant's motions. The court notes that Plaintiff agrees with the standard to be applied to a motion to dismiss and with the case law on the "gist of the action" doctrine. (See Doc. 36 at 4.) Otherwise, in their response to Defendants' motions and briefs, Plaintiffs' response is limited to a recitation of what they have pleaded in their complaint and it is conclusory in nature.

This court, after thorough review of Defendants' motions, briefs, the case law applicable to the issues, adopts the arguments and reasoning set forth by Defendants. (See Docs. 24 & 32.)Accordingly, IT IS HEREBY ORDERED THAT:

1) The motions to dismiss filed by Defendants Hershey Entertainment and Resorts Company and Great Coasters International, Inc. are GRANTED;

2) Counts IV through IX of the amended complaint are DISMISSED FOR FAILURE TO STATE A CLAIM;

3) The case will proceed according to the case management order issued on September 14, 2007.

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