United States District Court, W.D. Pennsylvania
TONY AND JENNIE PUNCH, as Parents and Natural Guardians of Lincoln Punch, a minor, and in their own right, Plaintiffs,
DOLLAR CONNECTION, LTD., Third Party Defendant. DOLLAR TREE STORES, INC., Defendant/Third Party Plaintiff,
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
It is respectfully recommended that Third Party Defendant's motion to dismiss Third Party Complaint [ECF No. 41] be denied.
A. Relevant Procedural and Factual History
Plaintiffs Tony and Jennie Punch, as parents and natural guardians of Lincoln Punch, a minor ("Minor Plaintiff"), and in their own right, initiated this civil action against Defendant Dollar Tree Stores, Inc. ("Dollar Tree"), to recover damages for injuries suffered by the Minor Plaintiff after he ingested button batteries that were allegedly contained in a pair of lighted tweezers ("subject tweezers") allegedly purchased from one of Dollar Tree's retail stores. In particular, Plaintiffs claim that the subject tweezers "were dangerous and defective in that they contained button batteries, they failed to restrict access to the button batteries, failed to contain appropriate warnings or instructions, and failed to adequately protect and hold the button batteries." (ECF No. 12, First Amended Complaint, at ¶ 24). Thus, Plaintiffs seek to hold Dollar Tree strictly liable for the sale of the subject tweezers. In addition, Plaintiffs claim that Dollar Tree "was also negligent and careless in selling this product without any warnings or instructions and without alerting customers to the potential dangers of button batteries." (Id. at ¶ 25).
On October 23, 2012, Dollar Tree filed a (partial) motion to dismiss [ECF No. 13], seeking to have Plaintiff's strict liability claim dismissed for failure to state a claim upon which relief may be granted. On April 8, 2013, District Judge Sean J. McLaughlin issued a Memorandum Order [ECF No. 24] adopting this Court's Report and Recommendation [ECF No. 19], and denying Dollar Tree's motion to dismiss.
On January 14, 2014, Dollar Tree filed a third party complaint against Third Party Defendant Dollar Connection, Ltd. ("Dollar Connection"), seeking indemnification and contribution from Dollar Connection in the event Dollar Tree is found liable to Plaintiffs on their underlying claims. [ECF No. 37]. In particular, Dollar Tree alleges that the subject tweezers were manufactured by Dollar Connection and were purchased from Dollar Connection by Dollar Tree's importing affiliate, Greenbrier International, Inc. ("Greenbrier"), pursuant to a purchase order (the "Purchase Order") that contains, inter alia, the following provision:
[Dollar Connection] agrees to indemnify and hold harmless Greenbrier International, Inc., its parents, subsidiaries, and affiliates... (the "indemnified parties") from and against any and all claims, actions, liabilities, damages, losses, costs or expenses (collectively "losses") arising from or related to any products provided by [Dollar Connection] to [Greenbrier]. The indemnified losses shall include, without limitation, the losses incurred as a result of... (ii) any actual or alleged death of or injury to any person, damage to any property or any other damage or loss, by whomsoever suffered, claimed to result in whole or in part from the merchandise or any actual or alleged defect in such merchandise whether latent or patent including any alleged failure to provide adequate warnings, labeling or instructions..."
(ECF No. 37, Third Party Complaint, at ¶¶ 11, 13).
According to Dollar Tree, the Purchase Order also contained a provision requiring Dollar Connection to provide and/or cover the cost of the indemnified parties' legal defense, and to maintain a vendor's liability insurance policy covering "Greenbrier International, Inc., Its Parents, Subsidiaries, and Affiliates" as additional insureds. (Id. at ¶¶ 14, 15). In addition, Dollar Tree alleges that Dollar Connection entered into a Continuing Vendor Indemnification Agreement ("CVIA") with Greenbrier on February 21, 2008, which contains indemnification language similar to that of the Purchase Order. (Id. at ¶ 17, 18).
On April 7, 2014, Dollar Connection filed a motion to dismiss Dollar Tree's third party complaint, arguing that it fails to state a claim upon which relief may be granted, and that Dollar Tree has failed to join Greenbrier as a necessary party. Dollar Tree has since filed a brief in opposition to Dollar Connection's motion [ECF No. 45], to which Dollar Connection has filed a reply brief [ECF No. 46]. This matter is now ripe for consideration.
B. Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 ...