The opinion of the court was delivered by: Judge McClure
On January 26, 2010, plaintiffs Kathy Lehman and her husband, William Lehman, both citizens of Florida, instituted this civil action against defendants, and Pennsylvania citizens, Diamond Development Co., Inc. ("Diamond Development") and Patricia Guarna and Vincent Guarna, employees and principals of Diamond Development Co. (Rec. Doc. No. 1). Plaintiffs' claims arise out of an alleged incident, occurring on June 11, 2008, in which Mrs. Lehman claims to have slipped and fallen on property owned and managed by Diamond Development, Patricia Guarna, and Vincent Guarna ("Diamond Development Defendants").*fn1 Id. at 2. In their original complaint, plaintiffs alleged that Mrs. Lehman slipped and fell on a clear liquid near vending machines on premises owned and managed by the Diamond Development defendants. Id. at 2-3. Plaintiffs allege that the defendants breached their duty of care as owed to Mrs. Lehman and that such a breach caused her to incur medical expenses, pain and suffering, lost wages, an impaired earning capacity, scarring, disfigurement, a loss of life's pleasures, and other damages. Id. at 4-5. Mr. Lehman also claims to have lost the companionship, services, advice, and consortium of his wife. Id. at 5.
The Diamond Development defendants filed an answer to the plaintiffs' original complaint on February 19, 2010. (Rec. Doc. No. 5 at 2-5). In their response, the Diamond Development defendants also included a third-party complaint against Community Services Group, Inc. ("Community Services Group"), Mrs. Lehman's employer and the lessee of the premises, and Pepsi-Cola Metropolitan Bottling Company ("Pepsi-Cola Bottling Company"), which installed the vending machine near the location of the alleged June 11, 2008 incident. Id. at 5-11. The Diamond Development defendants contend that, "[i]f the plaintiff was injured on the Premises, the injury and damage sustained by the plaintiff result[ed] solely from a breach by the [Community Services] Group of the duty to maintain the [P]remises." Id. at 7. In addition, the Diamond Development defendants claim that Pepsi-Cola Bottling Company "breached the duty to maintain the soda vending machine and may have caused injury to the plaintiff." Id. at 9.
On March 2, 2010, plaintiffs filed an amended complaint, as of right and pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), adding claims against Pepsi-Cola Bottling Company. (Rec. Doc. No. 8). As an attachment to the amended complaint, plaintiffs and the Diamond Development defendants included a stipulation of counsel, in which defense counsel consented to the filing of the amended complaint against Pepsi-Cola Bottling Company. Id. at 8. In addition, both counsel agreed that the answer filed by the Diamond Development defendants on February 19, 2010 would be deemed as applying to the amended complaint and that any further answer need not be filed. Id.*fn2
On May 28, 2010, third party defendant Community Services Group filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Rec. Doc. No. 15). On that same day, Community Services Group filed a brief in support. (Rec. Doc. No. 16). Community Services Group alleges that the original defendants' third party complaint should be dismissed as against Community Services Group, as it may not be held liable to a third party under 77 P.S. § 481(b). Id. at 3-7.*fn3 No opposition briefs have been filed.
When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "The tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. At the motion to dismiss stage, the court considers whether a plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
A complaint should be dismissed only if, accepting as true all of the allegations in the complaint, the plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1960 (2007). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D. Pa. 2008). Federal Rule of Civil Procedure 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action and then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist. LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. "[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 'shown' - - that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950 (citing Fed. R. Civ. P. 8(a)).
The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.
Based upon this court's review of the docket sheet, it is clear that no briefs in opposition to the instant motion to dismiss have been filed. As such, and pursuant to Middle District Local Rule 7.6, the failure to oppose Community Services Group's brief in support of its motion to dismiss (Rec. Doc. No. 15) within the required time renders the motion unopposed.
Although the motion is deemed unopposed, we have reviewed the motion on the merits and conclude that it should be granted. As noted above, Pennsylvania substantive law applies in this case. Pursuant to ...