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Hughes v. Badaracco-Apolito

United States District Court, M.D. Pennsylvania

February 17, 2015

ALBERT HUGHES, III, Plaintiff,
v.
MARIE BADARACCO-APOLITO and HENDRICK BARNER, Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before me are three motions: Defendant Marie Badaracco-Apolito's ("Badaracco-Apolito") Motion to Dismiss Counts II and III and Strike Impertinent and Scandalous Averments from Plaintiff Albert Hughes' ("Hughes") Amended Complaint (Doc. 16); Defendant Hendrick Barner's ("Barner") Motion to Dismiss Count III of Hughes' Amended Complaint (Doc. 22); and Hughes' Motion for Leave to File Amended Pleading/Second Amended Complaint. (Doc. 26.) For the reasons that follow, Badaracco-Apolito's motion will be granted in part and denied in part, Barner's motion will be granted, and Hughes' motion will be denied.

I. Background

Hughes commenced this action against Badaracco-Apolito and Barner (collectively, "Defendants") by complaint docketed on September 22, 2014. (Doc. 1.) In the complaint, Hughes asserted a strict liability claim against Badaracco-Apolitio, as well as claims for negligence and punitive damages against both Defendants for injuries he allegedly sustained after he was attacked by two dogs they owned and/or controlled. Badaracco-Apolito moved to dismiss the strict liability and punitive damages claims and to strike impertinent and scandalous averments on October 23, 2014. (Doc. 9.)

The next day, Hughes filed an Amended Complaint as a matter of course. (Doc. 14.) The Amended Complaint again asserted claims against Defendants for negligence and punitive damages, and, in addition, Hughes set forth a negligence per se claim against Badaracco-Apolito in place of the strict liability claim raised in the initial complaint.

The facts as set forth in the Amended Complaint are as follows:

On or about February 17, 2013, Hughes was with his family, a guest, and his own dog at or near Pioneer Trail, Pocono Pines in Monroe County, Pennsylvania. ( Am. Compl., ¶ 8.) There, Hughes was suddenly attacked and mauled by two unleashed German Shepherds. ( Id .) The dogs are owned by Badaracco-Apolito and had been let out of her house by Barner with her knowledge, permission, and consent. ( Id . at ¶ 9.) Prior to the attack, Defendants failed to leash and properly control the dogs. ( Id . at ¶ 10.) Barner is a senior citizen with "difficulty hearing and walking, and is frail, and was not in a condition and position to safely control the German Shepherd dogs, " ( Id . at ¶ 22), and under those circumstances, Badaracco-Apolito should not have allowed Barner to handle and secure the dogs outside of her house. ( Id . at ¶ 24.) The night before the attack Barner let the dogs out of Badaracco-Apolito's house without a leash. ( Id . at ¶ 23.)

As a result of the incident, Badaracco-Apolito was charged with two counts of violating Pennsylvania's Dog Law: Failure to Confine Dogs and Harboring Dangerous Dogs. ( Id . at ¶ 11.) Badaracco-Apolito proceeded to trial on the charges and was found guilty of violating §§ 502-A and 305 of the Dog Law by a magisterial district judge. ( Id . at ¶ 12.) Badaracco-Apolito filed an appeal, but the appeal was later withdrawn. ( Id . at ¶ 13.)

On October 31, 2014, Badaracco-Apolito filed a motion to dismiss the negligence per se and punitive damages claims and to strike impertinent and scandalous averments from the Amended Complaint. (Doc. 16.) Barner also moved to dismiss Hughes' claim for punitive damages. (Doc. 22.)

On November 17, 2014, Hughes, pursuant to Federal Rule of Civil Procedure 15(a)(2), filed a motion for leave to file a second amended complaint. (Doc. 26.) Hughes requested leave to amend his pleading to set forth claims for negligence and punitive damages against Defendants, as well as negligence per se and strict liability claims against Badaracco-Apolito. After briefing on the motion for leave to amend was closed, Hughes requested oral argument on his motion. (Doc. 29.) The request was granted, and oral argument was held on January 22, 2015. The parties' motions are now ripe for disposition.

II. Discussion

A. 12(b)(6) Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail. See id . A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

"A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The statement required by Rule 8(a)(2) must "give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id . "While legal conclusions can provide the framework of a complaint, they must ...


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