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Selective Way Insurance v. Gunnebo Johnson

January 26, 2011

SELECTIVE WAY INSURANCE
COMPANY,
AS SUBROGEE OF SENSENIG & WEAVER WELL DRILLING
AND/OR MARY SENSENIG AS EXECUTRIXOF THE ESTATE OF FLOYD SENSENIG, PLAINTIFF,
v.
GUNNEBO JOHNSON
CORPORATION AND BLUE TEE
CORPORATION, DEFENDANTS.



IHon. William T. Prince Hon. John E. Jones II

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge William T. Prince (Doc. 47), filed on December 20, 2010, which recommends that Defendants' Motions to Dismiss (Docs. 21 and 24) be granted and that this case be dismissed. Plaintiff filed objections to the R&R on January 6, 2011. Both Defendants have filed briefs in opposition to the Plaintiff's objections (Docs. 50 and 51). Accordingly, this matter is ripe for our review. For the reasons set forth below, the Court will adopt the R&R.

I. STANDARDS OF REVIEW

A. Review of Magistrate Judge's Report

When, as here, no objections are made to a magistrate judge's report and recommendation, the district court is not statutorily required to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the Third Circuit, however, "the better practice is to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). "[T]he court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court's examination of this case confirms the Magistrate Judge's determinations.

B. Motion to Dismiss

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain 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 upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S. Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 129 S.Ct. At 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint -- the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.

II. BACKGROUND

Plaintiff Selective Way Insurance Company ("Plaintiff" or "Selective Way") filed this action seeking to recover the value of workers' compensation payments that it made following a fatal injury to one Floyd Sensenig ("Mr. Sensenig"), who was an employee of Plaintiff's insured. On December 28, 2007, Mr. Sensenig, while performing his duties as an employee of Sensenig & Weaver, was supervising the transfer of a drilling pipe from a drilled hole to a guide tray. This transfer was taking place on a portable drilling rig manufactured by Defendant Blue Tee ("Blue Tee"). As Mr. Sensenig was helping negotiate the pipe's movement from the hole into the guide tray, the eye attached to the top of the drill pipe came off its hook. The hook was manufactured by Defendant Gunnebo ("Gunnebo"). The drill pipe struck Mr. Sensenig on the top of the head, causing his death shortly thereafter.

After Mr. Sensenig's death, Plaintiff provided a total of $601,503.25 to his survivors in workers' compensation benefits. In this action, first filed on January 27, 2010, Selective filed a civil action, seeking to recover the monies it had paid to Mr. Sensenig's estate from Blue Tee and Gunnebo, claiming ...


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