United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge.
before the Court are Motions to Dismiss (Docs. 12, 18) the
Third-Party Complaint filed by Third-Party Defendants Girard
J. Mecadon, GJM Holdings, LLC, and the Law Office of Girard
J. Mecadon (collectively, “Mecadon”). Third-Party
Plaintiffs Office Depot, Inc., Swinton Avenue Trading, Ltd.,
and Swinton Trading, Inc. (“Office Depot, ” for
short) allege that Mecadon is responsible for Plaintiffs
Biagio and Stevie Rose Musto's injuries. But because the
Third-Party Complaint fails to state a valid third-party
claim under Rule 14(a)(1) of the Federal Rules of Civil
Procedure, Mecadon's Motions to Dismiss will be granted.
Musto suffered serious injuries when, during a meeting at
Mecadon's office, the chair he was sitting on suddenly
collapsed. (Doc. 1-2 at ¶¶ 48, 78). The allegedly
faulty chair was sold by Office Depot to Mecadon.
(Id. ¶ 8). Biagio Musto and his wife, Stevie
Rose Musto, accordingly sued Office Depot for negligence,
strict liability, breach of warranty, and loss of consortium.
(Id. at 25-32).
Depot answered the Mustos' Complaint, denying any
liability. (See Doc. 4). In its Answer, Office Depot
included a Third-Party Complaint against Mecadon,
incorporating the allegations in the Mustos' Complaint
and claiming contribution and indemnification. (Id.
then filed the instant Motions to Dismiss (Docs. 12, 18),
arguing that Office Depot failed to adequately allege that
Mecadon would be liable to Office Depot for the Mustos'
injuries. (See Docs. 13, 19). Office Depot filed
briefs in opposition, arguing that it has pled enough to
entitle it to discovery on the issues of contribution and
indemnification. (See Docs. 15, 20). The Motions to
Dismiss have been fully briefed and are now ripe for review.
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. The movant bears the
burden of establishing that the complaint fails to state a
claim. See Gould Elecs. Inc. v. United States, 220
F.3d 169, 178 (3d Cir. 2000). When considering a Rule
12(b)(6) motion, my role is limited to determining if a
plaintiff is entitled to offer evidence in support of his
claims. See Semerenko v. Cendant Corp., 223 F.3d
165, 173 (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.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation omitted). Detailed factual
allegations are not required. Id. However, “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 to support its claims for relief.
Id.; see Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (“While legal conclusions can provide the
framework of a complaint, they must be supported by factual
pleading standards set forth in [Twombly] and
Iqbal apply with equal force to . . . third-party
complaints.” SEPTA v. AECOM USA, Inc., No.
10-117, 2010 WL 4703533, at *3 (E.D. Pa. Nov. 19, 2010)
seeks dismissal of Office Depot's contribution and
indemnification claims. As to both claims, Mecadon maintains
that there are insufficient factual allegations that would
plausibly suggest he is liable to Office Depot.
Depot argues that its claim for contribution is properly
brought in this action pursuant to Rule 14 of the Federal
Rules of Civil Procedure. Rule 14(a) provides: “[a]
defending party may, as third-party plaintiff, serve a
summons and complaint on a nonparty who is or may be liable
to it for all or part of the claim against it.”
Fed.R.Civ.P. 14(a)(1). “Rule 14 is only procedural and
does not itself create a right to indemnity or contribution.
. . . Those rights must come from the applicable substantive
law.” Kohn v. Sch. Dist. of Harrisburg, No.
11-CV-109, 2012 WL 1598096, at *3 (M.D. Pa. May 7, 2012)
(citing Foulke v. Dugan, 212 F.R.D. 265, 269-70
(E.D. Pa. 2002)). Under Pennsylvania law, a right to
contribution arises only among joint tortfeasors.
See 42 Pa. Cons. Stat. § 8324(a);
Kohn, 2012 WL 1598096, at *3. To be joint
tortfeasors, “the parties must either act together in
committing the wrong, or their acts, if independent of each
other, must unite in causing a single injury.”
Lasprogata v. Qualls, 397 A.2d 803, 805 n.4 (Pa.
Super. Ct. 1979). Moreover, the Lasprogata court
defined a joint tort as “where two or more persons owe
to another the same duty and by their common neglect such
other is injured . . . .” Id.
Depot has not sufficiently alleged that Mecadon is a
tortfeasor to begin with, let alone a joint one. See
Bernard v. Air Vent, Inc., No. CV 17-2361, 2019 WL
144852, at *3 (M.D. Pa. Jan. 9, 2019). The Third-Party
Complaint merely incorporates the Mustos' Complaint
(see Doc. 4 at 15) and conclusorily states that
Mecadon was negligent (see Id. at 16). This is
insufficient to state a claim of contribution against Mecadon
because there are no factual allegations, either in the
Third-Party Complaint or the Mustos' Complaint,
suggesting Mecadon's liability in tort. A bald assertion
of negligence will not do. See Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009) (“While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations.”). Neither will allegations
that the chair “was in substantially the same condition
as when it was designed, manufactured and/or sold” and
“was not identified as being out of service and/or
marked as not to be used” (Doc. 20 at 12 (quoting the