The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Motion to Dismiss (Doc. 34) filed by Third-Party Defendant ColorMatrix Corporation. For the reasons that follow, the motion shall be denied.
I. FACTUAL BACKGROUND and PROCEDURAL HISTORY
Plaintiff Tulpehocken Spring Water, Inc. ("TSW" or "Plaintiff TSW") a corporation with its principal place of business in Pennsylvania, is engaged in the business of bottling, selling, and delivering bottled spring water products. (Doc. 1, Ex. 1 ¶¶ 1, 3). Plaintiff TSW purchases bottles and closures from third-party manufacturers. (Id. ¶ 4). Defendant/Third-Party Plaintiff Obrist Americas, Inc., t/d/b/a Global Closure Systems ("Obrist" or "Third-Party Plaintiff") is a Delaware corporation, with its principal place of business in Virginia, and is engaged in manufacturing and selling a variety of plastic and metallic closures, caps, and lids. (Id. ¶¶ 2, 5). During the relevant period, Third-Party Defendant ColorMatrix Corporation ("Colormatrix" or "Third-Party Defendant") was an Ohio corporation, with its principal place of business in the same state, engaged in the sale of tints or colorants used to color bottle caps. (Doc. 26 ¶¶ 2, 8).
Since September 12, 2006, Plaintiff TSW has purchased plastic bottle caps manufactured by Obrist through a third-party broker, Frost Packaging, Inc., without any complaints or issues. (Doc. 1, Ex. 1 ¶ 6). On or about April 18, 2008, Plaintiff placed an order for five (5) million flat-top, screw on style plastic bottle caps from Obrist. (Id. ¶ 7). According to Plaintiff, Obrist manufactured the requested order but sold the caps to a third party requiring Obrist to "rush order" Plaintiff's requested order within three (3) days. (Id. ¶¶ 8-9). The alleged "rush order" of caps were shipped to Plaintiff on or about June 10, 2008, which Plaintiff used in the production of its bottled water products produced during June 2008. (Id. ¶ 13).
Plaintiff TSW shipped its bottled spring water to several customers on or about July 21, 2008. (Id. ¶ 14). Thereafter, Plaintiff alleges it received numerous customer complaints claiming that the water had a "bad taste." (Id. ¶¶ 15-18). Subsequently, TSW conducted various tests on the water and plastic bottles, the results of which failed to account for the bad water taste. (Id. ¶¶ 19-20). Based on these results, Plaintiff concluded that Obrist's flat-top screw on style bottle caps were the underlying cause for the water's bad taste. (Id. ¶¶ 21-22).
On October 13, 2009, Plaintiff TSW filed a complaint in the Court of Common Pleas, Northumberland County, against Defendant/Third-Party Plaintiff Obrist. (Doc. 1, Ex. 1). Plaintiff's complaint alleged violations of Pennsylvania law including breach of the implied warranty of merchantability in Count I, and breach of the implied warranty of fitness for a particular purpose in Count II. (See id.). In particular, Plaintiff alleges that Obrist sold it defective caps which failed to properly seal the bottle and protect its contents from impurities that caused the water's flavor to be tainted. (Id. ¶ 31). Obrist subsequently removed the lawsuit to federal court based on diversity jurisdiction on November 6, 2009. (Doc. 1). Obrist filed an answer to the complaint on November 10, 2009. (Doc. 3).
On June 1, 2010, Obrist filed a Motion to Extend the Time to Amend Pleadings and Join Third Parties, alleging that pending scientific analyses suggested that another party, Colormatrix, may be responsible for the damages Plaintiffs alleged. (See Doc. 22). On the same day, the Court granted Obrist's motion for extension of time to join. (Doc. 23). On June 30, 2010, Obrist sought leave of the Court to file a third-party complaint against Colormatrix, (Doc. 24), which was granted the same day. (Doc. 29). Obrist filed a third-party complaint pursuant to Rule 14 of the Federal Rules of Civil Procedure asserting derivative liability against ColorMatrix based on theories of indemnification and contribution.*fn1 (See Doc 26). Obrist's third-party claim focuses on ColorMatrix, the company that supplied the tints and colorants used to color the bottle caps, as well as the allegedly defective bottle caps purchased by TSW. According to Obrist, to the extent the bottle caps are found to have been defective, any defects resulted solely from the tints or colorants supplied by ColorMatrix and are not the result of any action on Obrist's behalf. (See id.).
In response, ColorMatrix filed the instant motion to dismiss, and brief in support thereof, (Docs. 34, 35), pursuant to Federal Rule of Civil Procedure 12(b)(1) alleging that the third-party complaint should be dismissed without prejudice on grounds that the claims therein are not ripe for determination. Specifically, ColorMatrix contends that the claims are dependent upon contingent future events that might not occur as anticipated, or may not occur at all, and that the third-party complaint fails to allege sufficient facts to support either a claim for contribution or indemnification. (See Doc. 34, 35). Obrist filed an answer and brief in opposition to the motion on August 27, 2010. (Docs. 37, 38). At present, ColorMatrix has neglected to file a reply brief and the time for filing the same has expired. Accordingly, the motion is ripe for disposition.
When considering a motion to dismiss under Rule 12(b)(1), a court must distinguish between facial and factual challenges to its subject matter jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges whether the plaintiff has properly pled jurisdiction. Id.
"In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891). A factual attack, in contrast, challenges jurisdiction based on facts apart from the pleadings. Mortensen, 549 F.2d at 891. "When a defendant attacks subject matter jurisdiction 'in fact,' ... the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case. In such a situation, 'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891).
In the case sub judice, ColorMatrix lodges a factual challenge against subject matter jurisdiction. Thus, the Court is free to weigh the evidence and determine whether it has the power to hear the case without accepting as true all ...