The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ISAAC LEVIN,
Plaintiff,
MEMORANDUM & ORDER
-against- 16-CV-6631(JS)(AYS)
JOHNSON AND JOHNSON, a national for-
profit corporate entity, JOHNSON AND
JOHNSON CONSUMER COMPANIES, INC.,
a national for-profit entity, THE DOW
CHEMICAL COMPANY n/k/a DowDuPont, and
KIK CUSTOM PRODUCTS, INC.,
Defendants.
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APPEARANCES
For Plaintiff: Isaac Levin, pro se
960 Cliffside Avenue
North Woodmere, New York 11581
For the Johnson John D. Winter, Esq.
and Johnson Louis M. Russo, Esq.
Defendants: Michelle M. Bufano, Esq.
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
For Defendant Dow Richard Weingarten, Esq.
Chemical: Heather H. Kidera, Esq.
Joel Alan Blanchet, Esq.
Joseph B. Schmit
Phillips Lytle LLP
The New York Times Building
620 Eighth Avenue, 23rd Floor
New York, New York 10018
For Defendant KIK Francis Peter Manchisi, Esq.
Custom Products: Suma Thomas, Esq.
Thomas M. DeMicco, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
3 Gannett Drive
West Harrison, New York 10604
SEYBERT, District Judge:
Plaintiff Isaac Levin, proceeding pro se, commenced this
action against the Johnson and Johnson defendants (“Johnson”) on
November 30, 2016. (Compl., D.E. 1.) He amended his Complaint to
add Dow Chemical Company (“Dow”) and KIK Custom Products, Inc.
(“KIK”) as defendants on July 2, 2018. (Am. Compl., D.E. 69.) He
alleges that use of Johnson’s baby shampoo caused a tumor on his
head. While discovery was ongoing, Dow and KIK each moved to
dismiss the Amended Complaint. (Dow Mot., D.E. 98; KIK Mot.,
D.E. 97.) Johnson did not move to dismiss the Amended Complaint.
Plaintiff opposed both motions. (Opp. to Dow, D.E. 106; Opp. to
KIK, D.E. 107.) Judge Bianco referred the motions to Magistrate
Judge Anne Y. Shields.!
The facts of this case are set forth in Judge Shields’
Report and Recommendation (R&R, D.E. 143) and will be discussed
here only for the purpose of evaluating the parties’ specific
arguments and objections. Familiarity with the underlying record
is presumed.
I. BACKGROUND
On June 17, 2019, Judge Shields issued her R&R
recommending that the Court grant the motions in part and deny
them in part, specifically by GRANTING the motions to dismiss with
1 On May 31, 2019 the case was reassigned to the undersigned.
respect to Plaintiff’s claims of strict liability/failure to warn
(Count 1); negligence (Count Two); breach of implied warranties
(Count 4); concert of action (Count Five); punitive damages (Count
Six); and negligent misrepresentation (Count Seven) and by DENYING
the motions to dismiss with respect to Plaintiff’s breach of
express warranty claim (Count Three) and allowing that claim to
proceed to discovery. The R&R further recommends that Plaintiff
be granted leave to amend only with respect to his claim for breach
of implied warranty (Count Four) and that no other amendments be
allowed. (See R&R.)
Plaintiff requested an extension of time to file
objections (D.E. 147) and this Court granted the request.
Plaintiff and KIK timely filed objections in accordance with the
Court’s July 15, 2019 deadline (Pl. Obj, D.E. 150; KIK Obj., D.E.
149). Dow did not file objections. No party responded to
Plaintiff or KIK’s objections.
This Court “may accept, reject, or modify the
recommended disposition” and “must determine de novo any part of
the magistrate judge’s disposition that has been properly objected
to.” FED. R. CIV. P. 72. “When a party makes no objections, or
where it makes only conclusory or general objections, courts will
review the magistrate’s findings for clear error.” Pagan v. Brown,
No. 07-CV-0453, 2011 WL 3235769, at *1 (E.D.N.Y. July 28, 2011),
aff’d, 485 F. App’x 454 (2d Cir. 2012).
Il. THE PARTIES’ OBJECTIONS
A. KIK’s Objections
Defendant KIK objects to the recommendation that its
motion to dismiss be denied as to Count Three (breach of express
warranty) and the R&R’s conclusion that the claim is timely. KIK
“disagrees with Judge Shields’ finding that plaintiff complied
with the [four-year] statute of limitations by moving to amend his
complaint on November 13, 2017, which was before the expiration of
the four year period” at the end of December 2017. (KIK Obj. at
2.) KIK appears to believe that Plaintiff had not commenced the
amendment process until the Court ruled on his motion to amend.
KIK offers no legal basis for its argument. The Court notes that
after Plaintiff was granted leave to amend the Complaint on June
28, 2018, he did so four days later, on July 2, 2018. (See D.E.
68, 71, 69.) Thus, the Court agrees with Judge Shields’ that
Plaintiff “began the amendment process within the four-year
statute of limitations period and therefore his claims are deemed
timely.” (R&R at 12.)
KIK alternatively argues that the operative date for
statute of limitations purposes is the “tender of delivery” of the
product and that Plaintiff’s Complaint does not plead a date when
KIK, a bulk supplier, tendered delivery of the product to Johnson.
(KIK Obj. at 2-3.) In its motion to dismiss, however, KIK conceded
that warranty claims against it should have been brought in 2017,
no more than four years after Plaintiff’s last purchase of the
shampoo in December 2013. (KIK Br., D.E. 97-1, at 7-8 (“Even if
Plaintiff purchased his last bottle of baby shampoo in December
2013, the breach of warranty claims . . . should have been
commenced no more than four years later, in 2017.”).) KIK made no
argument that Plaintiff had not alleged a specific date for KIK’s
tender of delivery. “[E]ven in a de novo review of a party’s
specific objections, the court will not consider ‘arguments, case
law and/or evidentiary material which could have been, but [were]
not, presented to the magistrate judge in the first instance.’”
Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y.
Feb. 15, 2012) (citing Kennedy v. Adamo, No. 02–CV–1776, 2006 WL
3704784, at *1 (E.D.N.Y. Sept. 1, 2006) (second alteration in
original); see also Wesley v. Alexander, No. 99-CV-2168, 2005 WL
1352593, at *6 (S.D.N.Y. June 8, 2005)(because magistrates play a
crucial role within the federal judicial framework by assuming
“some of the burdens imposed [on the district courts] by a
burgeoning caseload,” . . . “[t]he law is clear that when a
dispositive motion is heard before a magistrate judge, the
[litigants] must make all . . . arguments then and there, and
cannot later add new arguments at subsequent stages of the
proceedings” without a compelling reason) (internal quotation
marks and citation omitted; alterations in original). Thus, KIK’s
objections are OVERRULED and its motion to dismiss is DENIED as to
Count Three (breach of express warranty).
B. Plaintiff’s Objections
1. Counts One (Strict Liability/Failure to Warn),
Two (Negligence) and Seven (Negligent
Misrepresentation
Plaintiff objects to the R&R’s recommendation that
Counts One (strict liability/failure to warn), Two (negligence),
and Seven (negligent misrepresentation) be dismissed as time-
barred. The R&R applied New York’s three-year statute of
limitations for personal injury tort claims. (R&R at 8.) The R&R
finds that “Plaintiff’s [First, Second, and Seventh] claims
accrued, i.e., the statute began to run, at the latest, in January
2014, when his tumor was diagnosed and at which point, based on
his allegations, he had already learned about the connection
between the product and his condition.” (R&R at 10.) It notes
that he timely commenced the action against Johnson in November
2016 but “did not move to add either Dow or KIK as defendants until
November 2017[,]” well after the period expired in January 2017.
(R&R at 10.)
Plaintiff does not contest that the applicable statute
of limitations for these claims is three years. Rather, he makes
a tolling argument, claiming that when he commenced the action
against Johnson in November 2016, he “lacked any knowledge that
Johnson did not manufacture a drop of the product itself.
Therefore, Plaintiff had no reason to include either Dow o[r] KIK
when he first brought suit. . . . This discovery wasn’t made until
June 2017, which led Plaintiff to immediately seek leave of court
to amend and include Dow and KIK as [ ] defendants.” (Pl. Obj. at
6.) He cites Judge Bianco’s ruling granting his motion to amend
the complaint to add Dow and KIK (Order, D.E. 71), where Judge
Bianco stated that Plaintiff did not have sufficient information
to add them as defendants until shortly after a June 1, 2017
discovery deadline. (Tr., D.E. 73, 10-12:12.)
This Court notes that Judge Bianco’s order specifically
stated that Defendants had not addressed whether the proposed
amendment to add parties would be futile and did not “conclude .
. . right now that adding KIK and Dow would be futile under a
motion to dismiss standard.” (Tr. 15:14-17.) An amendment will
be denied as futile “if the proposed claim could not withstand a
motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6).” Romero v.
Bestcare, Inc., No. CV 15-7397, 2018 WL 1702001, at *3 (E.D.N.Y.
Feb. 28, 2018), R&R adopted, 2018 WL 1701948 (E.D.N.Y. Mar. 31,
2018) (internal quotation marks and citation omitted). “Arguments
as to whether the proposed claim is timely under the relevant
statute of limitations are evaluated under the futility test.”
Id. at *7 n.13. The parties did not address futility or applicable
statutes of limitations in connection with Plaintiff’s motion to
amend to add KIK and Dow, and there has been no ruling on the issue
in this case. (Tr. 15:3-16:1; see A.H. Lundberg Assocs., Inc. v.
TSI, Inc., No. C14-1160, 2016 WL 9226998, at *11 (W.D. Wash. Feb.
18, 2016) (the parties should not “infer a strong inclination from
the court regarding the merits of [a] subsequent motion to dismiss
based simply on the court’s deference-bound decision on [a] motion
to amend, particularly when the court has already indicated its
desire for further briefing on the merits.”).)
Notwithstanding the decision on the motion to amend,
this Court finds that Plaintiff’s claims are barred by the
applicable statute of limitations and no tolling exception
applies. Under New York law, which governs this action, see
Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990),
the statute of limitations begins to run “from the date of
discovery of the injury or from the date when such injury should
have been discovered. Discovery occurs when the injured party
discovers the primary condition on which the claim is based.”
Trisvan v. Heyman, 305 F. Supp. 3d 381, 396 (E.D.N.Y. 2018)
(quoting Bethpage Water Dist. v. Northrop Grumman Corp., 884 F.3d
118, 125 (2d Cir. 2018) (citing N.Y. C.P.L.R. § 214–c)). “A delay
before the connection between the symptoms and the injured’s
exposure to a toxic substance is recognized does not delay the
start of the limitations period [and] [t]he three-year statute of
limitations of CPLR 214–c(2) runs from the time a plaintiff
discovers an injury, that is, from the time [ ]he realizes that [
]he has the physical manifestations of illness, regardless of when
[ ]he learns of the cause.” Id. (internal quotation marks and
citations omitted).
Plaintiff argues that New York’s tolling provision
should apply here. That provision provides:
where the discovery of the cause of the injury
is alleged to have occurred less than five
years after discovery of the injury . . . an
action may be commenced or a claim filed
within one year of such discovery of the cause
of the injury . . . [In such case,] plaintiff
or claimant shall be required to allege and
prove that technical, scientific or medical
knowledge and information sufficient to
ascertain the cause of his injury had not been
discovered, identified or determined prior to
the expiration of the period within which the
action or claim would have been authorized.
N.Y. C.P.L.R. 214-c. The Court finds this provision does not
apply. Section 214-c “enact[ed] a discovery rule for tort cases
based on exposure to toxic substances that cause imperceptible
injuries at the time of exposure.” Practice Commentary, N.Y.
C.P.L.R. § 214-c. That rationale for tolling the statute of
limitations does not apply here. Plaintiff was aware of his
injuries in January 2014. He was also aware of their alleged
cause. Section 214-c will not toll the time to add additional
defendants where the injury and cause are known. Judge Barbara S.
Jones of the Southern District of New York considered and rejected
Plaintiff’s exact argument. Like Judge Jones, the Court finds
that
[t]he discovery rule does not apply in this
case. [Plaintiff] knew the [alleged] cause of
his injury . . . when he was diagnosed ...
in [January of 2014]. [ ] Thus, Plaintiff
cannot allege in the Complaint, let alone
prove, that the cause of the injury remained
unknown because the ‘technical, scientific or
medical knowledge’ had not yet been
discovered. Essentially, Plaintiff relies on
the argument that the discovery rule should
apply in cases where the plaintiff does not
know who caused the injury versus what caused
the injury. [ ] [T]he language of the statute
referring to ‘technical, scientific or medical
knowledge’ does not support this reading.
Since Plaintiff knew the cause of his injury
in [January of 2014], the discovery rule does
not apply in this case and cannot toll the
statute of limitations.
Fisher v. APP Pharm., LLC, 783 F. Supp. 2d 424, 431 (S.D.N.Y. 2011)
(emphasis in original). Thus, Plaintiff’s objections are
OVERRULED and Counts One, Two, and Seven are DISMISSED.
2. Count Four (Breach of Implied Warranty)
Plaintiff next objects to the R&R’s finding that he did
not adequately allege the elements of breach of implied warranty
(Count Four). As the R&R recommends that Plaintiff be granted
leave to amend Count Four, the Court OVERRULES this objection as
moot. Count Four is DISMISSED without prejudice and with leave to
amend.
3. Count Five (Concert of Action)
Plaintiff also objects to the R&R’s finding that he did
not adequately allege concert of action (Count Five). (Pl. Obj.
at 12-15.) According to the R&R, Plaintiff has not alleged “what
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common plan the Defendants devised, how each of the [D]efendants
committed a tort and which Defendants’ tortious conduct was in
support of this alleged common plan.” (R&R at 22.) Plaintiff
argues that “at a minimum, [he] has sufficiently alleged that the
Johnson Defendants worked in concert with Dow and KIK in the
manufacture, distribution, marketing and promoting the product to
the public at large as ‘safe.’” (Pl. Obj. at 13.) However, as
the R&R notes, “[p]larallel activity among companies developing and
marketing the same product, without more .. . is insufficient to
establish the agreement element necessary to maintain a concerted
action claim.” Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d
289, 295, 591 N.EL2d 222, 224, 582 N.Y.S.2d 373 (1992) (internal
quotation marks and citation omitted). In conducting a de novo
review, the Court finds that the Amended Complaint does not
plausibly allege concert of action. Plaintiff’s objection is
OVERRULED and Count Five is DISMISSED.
4. Repleading
Plaintiff objects to the R&R’s finding that repleading
Counts One, Two, Five, Six, and Seven would be futile because the
problems with them are substantive and improved pleading will not
cure the deficiencies, and to the recommendation that he only be
granted leave to amend Count Three.
As discussed, Counts One, Two, and Seven, the Court holds
that they are time-barred, a substantive issue that repleading
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will not cure. Thus, Plaintiff’s objection is OVERRULED and
Plaintiff is not given leave to replead Counts One, Two, and Seven.
As discussed, Plaintiff has not adequately alleged
concert of action, and the Court agrees with the R&R’s
recommendation that Count Five be dismissed. However, the Court
MODIFIES the R&R to the extent that it grants Plaintiff leave to
replead Count Five. The Court finds that the Amended Complaint
does not contain sufficient factual allegations to support his
claim that “Defendants knew that the product should contain
warnings on the risk of cancer and allergic skin reactions posed
by consumers using the product, but purposefully sought to suppress
such information and omit warnings to its consumers so as not to
negatively affect sales and maintain the profits of the
Defendants.” (Am. Compl. ¶ 75.) However, based on Plaintiff’s
representations regarding emails exchanged between Defendants,
there is a possibility that he could include sufficient facts if
given the opportunity to replead.
The Court notes that Plaintiff does not object to the
recommendation that Count Six (punitive damages) be dismissed.
Without objection, in reviewing the recommendation that Count Six
be dismissed for clear error, the Court finds none, and thus, Count
Six is DISMISSED. Because Plaintiff does not object to the
dismissal of Count Six, the Court does not construe his objections
as to repleading to include an objection to the R&R’s
recommendation that he not be allowed to replead Count Six.
CONCLUSION
Thus, the parties’ objections are OVERRULED and Judge
Shields’ R&R is ADOPTED in part and MODIFIED in part. Accordingly,
the motions to dismiss are GRANTED in part and DENIED in part.
The motions are granted with respect to Counts One, Two, Four,
Five, Six, and Seven, and those counts are DISMISSED. The motions
are DENIED with respect to Count Three. Plaintiff is given leave
to replead Count Four (breach of implied warranties) and Count
Five (concert of action) in accordance with Judge Shields’ R&R and
this Order. If Plaintiff wishes to amend his Amended Complaint
as to Count Four and Count Five, he shall do so within 30 days of
this Order. If he does not do so within 30 days, his claims for
breach of implied warranty (Count Four) and concert of action
(Count Five) will be DISMISSED. Plaintiff is cautioned that any
Second Amended Complaint will completely replace the Amended
Complaint. (D.E. 69.) Thus, if Plaintiff also wishes to proceed
with Count Three (breach of express warranty), which has not been
dismissed, he shall include it in the Second Amended Complaint.
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The parties shall continue with discovery in accordance
with Judge Shields’ orders.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: August 23 , 2019
Central Islip, New York