The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES PRESNELL, )
)
Plaintiff, )
)
v. ) 1:20CV234
)
SNAP-ON SECURECORP., INC., )
)
)
Defendant. )
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is a Motion to Dismiss filed by
Defendant Snap-On Securecorp., Inc. (“Snap-On” or “Defendant”),
(Doc. 7), and a Motion to Strike, (Doc. 14). Plaintiff James
Presnell (“Plaintiff” or “Presnell”) has opposed both motions.
(Docs. 12, 17.)
Plaintiff filed a Complaint, (Doc. 4), alleging that the
failure of Defendant’s product – a hammer – caused him serious
injury. Defendant filed a Motion to Dismiss, (Doc. 7), and
Plaintiff filed a late response, (Doc. 12). Defendant replied,
(Doc. 16). Defendant then filed a Motion to Strike Plaintiff’s
response. (Doc. 14.) This case is ripe for consideration.
I. ANALYSIS
A. Motion to Strike
Under Fed. R. Civ. P. 6, a court may extend the time
deadline “on motion made after the time has expired if the party
failed to act because of excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B). After Defendant filed its Motion to Dismiss on
March 18, 2020, (Doc. 7), Plaintiff had until April 8, 2020, to
file a timely response. See LR 7.3(f). Without notice to the
court or to opposing counsel, Plaintiff failed to file a
response within this deadline. Plaintiff instead filed a
response twenty days after the deadline had passed, on April 28,
2020. (Pl.’s Resp. to Def.’s Mot. to Dismiss (“Pl.’s Resp. (Doc.
12).) Plaintiff now cites both the COVID-19 pandemic and
technical problems as the reasons for this improper delay. (Doc.
17 at 2.) However, while this delay is unacceptable and an
extension of time should have been sought, this court will not
strike the response under LR 7.3(k). Plaintiff’s neglect can be
excused given the extenuating circumstances and the fact that no
substantial hardship has been demonstrably created by the delay.
Defendant ultimately agrees that “it would seem appropriate
under the circumstances to consider Plaintiff’s Response.” (Doc.
18 at 2.)
This court will decline to strike Plaintiff’s response, and
as a result, Defendant’s Motion to Dismiss is not uncontested.
This court will therefore evaluate the merits of the Motion to
Dismiss.
B. Defendant’s Motion to Dismiss
The complaint was filed in state court and subsequently
removed to this court. (Doc. 1.) Jurisdiction is based upon 28
U.S.C. § 1332, diversity of citizenship. (Id. at 2.) The Federal
Rules of Civil Procedure apply to a civil action removed from
state court. Fed. R. Civ. P. 81(c)(1).
A federal court exercising diversity jurisdiction
should not apply a state law or rule if (1) a Federal
Rule of Civil Procedure “answer[s] the same question”
as the state law or rule and (2) the Federal Rule does
not violate the Rules Enabling Act. Shady Grove
Orthopedic Associates, P.A. v. Allstate Insurance Co.,
559 U.S. 393, 398–99 (2010) (majority opinion) (citing
Hanna v. Plumer, 380 U.S. 460, 463–64 (1965)).
Platinum Press, Inc. v. Douros-Hawk, Civil Action No. 3:18-CV-
00458-GCM, 2018 WL 6435331, at *2 (W.D.N.C. Dec. 7, 2018).
Although Plaintiff’s response to Defendant’s motion to dismiss
recognizes the familiar Twombly standard described hereinafter,
(see Pl.’s Resp. (Doc. 12) at 3), Plaintiff also appears to rely
upon the now abrogated “no set of facts” standard recognized in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). (See id. at 2 n.1.)
That standard has been abrogated, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 563 (2007), and replaced by a requirement that a
complaint “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As a result,
Plaintiff’s reliance upon a state case addressing the state
standard for granting a motion to dismiss is not applicable
here. (See Pl.’s Resp. (Doc. 12) at 3.) To be facially
plausible, a claim must “plead[] factual content that allows the
court to draw the reasonable inference that the defendant is
liable” and must demonstrate “more than a sheer possibility that
a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556-57). When ruling on a motion to
dismiss, a court must accept the complaint’s factual allegations
as true. Id. Further, “the complaint, including all reasonable
inferences therefrom, [is] liberally construed in the
plaintiff’s favor.” Estate of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004) (citation omitted).
Nevertheless, sufficient factual allegations must “raise a
right to relief above the speculative level” so as to “nudge[]
the[] claims across the line from conceivable to plausible.”
Twombly, 500 U.S. at 555, 570; see Iqbal, 556 U.S. at 680. A
court cannot “ignore a clear failure in the pleadings to allege
any facts which set forth a claim.” Estate of Williams-Moore,
335 F. Supp. 2d at 646. Consequently, even given the deferential
standard allocated to pleadings at the motion to dismiss stage,
a court will not accept mere legal conclusions as true and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, [will] not suffice.”
Iqbal, 556 U.S. at 678.
The complaint alleges few facts: Plaintiff purchased a
Snap-On Ball Peen Hammer from Snap-On Tools. (Complaint
(“Compl.”) (Doc. 4) ¶ 4.) Plaintiff alleges that Defendant is
“in the business of designing, assembling, promoting, marketing,
manufacturing, testing, distributing, supplying, and/or selling”
hammers. (Id. ¶ 3.) Plaintiff identifies the hammer as a “Ball
Peen Soft Grip Dead Blow Hammer,” (id. ¶ 4), but what that is,
how it is used, what it is used for, and how Plaintiff was using
it are not described in the Complaint. The Complaint alleges
only two relevant plausible facts: Plaintiff purchased the
hammer and the head broke while he was using it for some
purpose.1 As Plaintiff was using the hammer, “[a] metal chunk of
the Hammer head broke off as he struck an object and became
lodged in the Plaintiff’s right forearm.” (Id. ¶ 5.) This caused
Plaintiff to sustain “serious and permanent injuries to his
arm.” (Id. ¶ 15.) The Complaint does not allege what Plaintiff
was hitting with the hammer, or how he was using the hammer. The
Complaint does not allege any theory of how or why the hammer
was defective. While Plaintiff frames his Complaint as
containing two counts under N.C. Gen. Stat. 99B-1, he sets out
no less than eighteen distinction theories of liability, none of
which are accompanied by facts tailored to their elements. (See
Compl. (Doc. 4).)
1. Factual Insufficiency
Plaintiff presents a wide variety of potential allegations,
most of which are alleged in a conclusory manner without a
single supporting factual allegation. For example, Plaintiff
1 A ball-peen hammer is defined as “a hammer having a
hemispherical peen at one end of its head,” as distinct from,
for example, a claw hammer. Ball-peen hammer, Merriam-Webster
Dictionary, available at https://www.merriam-webster.com/
dictionary/ball-peen%20hammer. The Snap-On Tools website has a
description of “Application Information” describing intended
uses of what appears to be the hammer at issue. https://shop.
snapon.com/product/Dead-Blow-Ball-Peen/32-oz-Ball-Peen-Soft-
Grip-Dead-Blow-Hammer-(Red)/HBBD32 (last visited Mar. 30, 2021).
This fact is not considered in this motion, but it is only
offered to explain why this court points out these particular
factual issues.
alleges Defendant was “failing to incorporate an alternative and
safer design,” yet does not allege an alternative design that
would have been preferable, or even reference a single fact
about the hammer’s existing design. (Compl. (Doc. 4) ¶ 14.)
Plaintiff alleges Defendant was “failing to properly . . . test
the product” without any factual allegation about the existence
or extent of Defendant’s testing. (Id.) Plaintiff alleges
Defendant was “failing to adequately warn users, employers, and
others” and was “negligently and carelessly designing,
manufacturing, distributing, supplying and/or selling the
product without adequate instructions,” yet does not explain
whether any warning was present, and if so, how it was
inadequate. (Id.) Nor does Plaintiff allege what instructions,
if any, were included. Plaintiff also claims that Defendant was
“failing to design. . . the product in accordance with
applicable government and industry statutes,” yet does not even
bother to allege which “applicable government and industry
statutes” the hammer failed to meet. (Id.)
For the claims centering around negligence, including all
of Count 1, Plaintiff is required to plausibly allege facts to
meet each of the elements of a negligence claim. “As with other
negligence actions, the essential elements of a products
liability action based upon negligence are (1) duty, (2) breach,
(3) causation, and (4) damages.” Crews v. W.A. Brown & Son,
Inc., 106 N.C. App. 324, 329, 416 S.E.2d 924, 928 (1992).
Plaintiff’s injury alone is not enough to establish negligence.
“Ordinarily, no inference of negligence arises from the mere
fact of accident or injury.” Jolley v. Gen. Motors Corp., 55
N.C. App. 383, 385, 285 S.E.2d 301, 303 (1982). And Plaintiff
has provided no facts to indicate what duty Defendant owed or
how Defendant’s particular actions with respect to the hammer
led to Plaintiff’s injury.
Alleging negligent design requires alleging what was wrong
with the design. “Plausible allegations that [Defendant]
negligently breached a duty to design the [product] would
necessarily include allegations regarding what the flaw in the
[product’s] design was that rendered the [product] unreasonably
unsafe, thereby pleading how [Defendant’s] design amounted to
negligence.” Markel Am. Ins. Co. v. XDS, LLC, Case No. 7:20-cv-
00075-M, 2020 WL 4938435, at *4 n.5 (E.D.N.C. Aug. 24, 2020).
The court in Markel found that the plaintiff had merely alleged
that the defendant built a product which later failed, and
therefore the case could not proceed to discovery, as the
complaint was entirely “based upon a post-hoc-ergo-propter-hoc
theory of causation, which requires an unreasonable inference
that courts uniformly reject.” Id. at *5. Where the court is
“left entirely to speculate as to what [the defendant] might
have done or not done while building the [product] that
Plaintiff believes breached a duty,” the claim at issue is too
speculative to pass the pleading stage. Id. at *4. Plaintiff in
this case has not even alleged with particularity what problem
caused the hammer to break. See Fields v. Jobar Int’l, Inc.,
Civil Action No. 3:14CV50-HEH, 2014 WL 1513289, at *3 (E.D. Va.
Apr. 16, 2014) (“It is impossible for this Court to determine
whether or not Plaintiff states a plausible claim for negligent
design without some disclosure in the pleading of the alleged
defect or deficiency . . . .”); Corwin v. Connecticut Valley
Arms, Inc., 74 F. Supp. 3d 883, 889 (N.D. Ill. 2014)
(“Plaintiff’s complaint presents no factual allegations that
detail how the bullet was defective in causing increased barrel
pressures — whether because of the bullet’s physical properties,
its inherent design, or otherwise. An assertion that the bullet
was ‘defective,’ without any factual elaboration, is
insufficient . . . .”) (footnote omitted).
The same logic applies in manufacturing defect claims as in
design defect claims. For example, in Williams v. Smith &
Nephew, Inc., the plaintiffs’ complaint stated that the product
at issue had a “different hardness in metal and a variance in
other metallurgical properties that caused or allowed it to
break down sooner” than it should have, without including
information about “the specific material composition and
hardness requirements of the metal used.” 123 F. Supp. 3d 733,
747 (D. Md. 2015). The court found this claim was “too
speculative” and the plaintiffs “must add sufficiently specific
factual allegations to make their claim plausible.” Id. Among
Plaintiff’s conclusory allegations is the contention that
Defendant failed “to incorporate an alternative and safer design
and/or other guards or devices.” (Compl. (Doc. 4) ¶ 14.) Yet
Plaintiff provides no evidence, or even suggestion, of what
alternative hammer design might have been safer or more
appropriate.
Of course, absent further discovery, Plaintiff cannot be
expected to have amassed a litany of factual details about the
hammer’s design and construction. Yet the details missing from
Plaintiff’s complaint are not merely those that must be
unearthed through discovery. For example, he alleges claims such
as inadequate warnings and instructions without alleging what,
if any, warnings or instructions he received. (Id.) He alleges
Defendant has failed to comply with government or industry
standards without even indicating which standards he might be
implicating. (Id.)
2. Lack of Particularity Regarding Legal Claims
Moreover, Plaintiff’s complaint also fails to clearly
allege what kind of legal claims will be pursued against
Defendant. As Defendant asks:
Is Plaintiff alleging a design defect? Is he alleging
a manufacturing defect? Is he alleging a defect in the
construction or assembly of the hammer? Does Plaintiff
allege that the warnings provided were insufficient or
that the product contained no warnings at all? Does
Plaintiff contend the subject hammer failed to comply
with certain government and industry standards? If so,
which standards? Based on the face of the Complaint,
the answers to these most basic questions are totally
unclear.
(Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Br.”) (Doc. 8)
at 7.) Plaintiff has not specified whether he believes this was
a design defect, a manufacturing defect, or some other problem –
in fact, Plaintiff has not even identified whether Defendant is
the manufacturer, designer, or merely the distributor of the
product. Plaintiff’s brief notes that it is “likely” there was a
failure to warn, highlighting the speculative nature of
Plaintiff’s complaint. (Pl.’s Resp. (Doc. 12) at 4.) Moreover,
Plaintiff agrees outright that he does not know whether the
hammer was “negligently and defectively designed” or
“negligently manufactured,” and states his intention to use
discovery as a time to “identify” whether any of these claims
exist. (Id.)
A complaint cannot be a mere guess at the existence of some
yet-unknown claims: “[a] complaint need not contain detailed
factual recitations, but must provide the defendant ‘fair notice
of what the claim is and the grounds upon which it rests.’”
Allen v. Ted Wire, No. 1:19cv689, 2020 WL 4586722, at *3
(M.D.N.C. Aug. 10, 2020) (quoting Twombly, 550 U.S. at 555).
Here, Plaintiff has provided no notice of what claim(s) he
intends to pursue, and in fact admits he does not know what
claim(s) he intends to pursue – merely alleging some
unidentified problem exists at some point in the hammer’s
design, production, or distribution. He instead lists every
imaginable claim in the hopes of finding something during
discovery that might fit. Though Plaintiff is free to file a new
complaint stating concrete theories of liability, he cannot use
the legal process as a fishing expedition without any chosen
theory of liability.
II. CONCLUSION
For the reasons set forth herein, this court finds
Defendant’s Motion to Strike, (Doc. 14), should be denied,
Defendant’s Motion to Dismiss, (Doc. 7), should be granted, and
Plaintiff’s Complaint, (Doc. 4), be dismissed. Notwithstanding
these findings, this court recognizes that some additional facts
omitted from the Complaint are likely readily available to
Plaintiff. Those facts may have been omitted as a result of
improper reliance upon a complaint filed pursuant to state court
pleading rules. (See Pl.’s Resp. (Doc. 12) at 3.) As a result,
this court will defer entry of a judgment on this order for a
period of twenty days. Plaintiff may consider whether the
complaint is subject to amendment. Leave to amend a complaint
can be allowed, even after judgment is entered. Katyle v. Penn
Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011).
Generally, a party seeking leave to amend a complaint need not
file a supporting brief under the local rules but “must state
good cause” for the amendment. LR 7.3(j). However, here, if
Plaintiff seeks leave to amend, this court will require
Plaintiff to file a separate brief stating in detail good cause
and why leave to amend should be allowed. If Plaintiff does not
seek leave to amend, a judgment will be entered pursuant to this
order.
IT IS THEREFORE ORDERED that Defendant’s motion to dismiss,
(Doc. 7), is GRANTED and that this matter is DISMISSED. This
court defers entry of judgment on this Memorandum Opinion and
Order for a period of 20 days to allow Plaintiff’s consideration
of the matter set forth herein. Should Plaintiff seek to amend
the complaint, IT IS ORDERED that Plaintiff shall file a motion
and supporting brief along with the proposed amended complaint
explaining good cause and reasons why the motion to amend should
be allowed.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike,
(Doc. 14), is DENIED.
This the 31st day of March, 2021.
Win L. stun.
United States District Judg¢
-14-