Opinion

Pankova-Visser v. Walmart Inc.

Court
District Court, N.D. New York
Filed
Jun 2, 2020
Cited by
0 cases
Authority
More cited than 26.8%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ELENA PANKOVA-VISSER,

Plaintiff,

-vV- Civ. No. 1:20-CV-430

(MAD/DJS)

WALMART, INC., CVB, INC., and LUCID

MATTRESS COMPANY,

Defendants.

APPEARANCES: OF COUNSEL:

ELENA PANKOVA-VISSER

Plaintiff Pro Se

93 Herkimer Street

Apartment 2

Albany, New York 12202

DANIEL J. STEWART

United States Magistrate Judge

DECISION and ORDER

The Clerk has sent for review a civil Complaint filed by Plaintiff. Dkt. No. 1,

Compl. Plaintiff has not paid the filing fee, but instead submitted a Motion to Proceed

in forma pauperis (“IFP”). Dkt. No. 2, IFP App. By separate Order, this Court granted

Plaintiff's Application to Proceed IFP. Now, in accordance with 28 U.S.C. § 1915(e),

the Court will sua sponte review the sufficiency of the Complaint.

Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff

seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the

court determines that... the action or appeal (1) is frivolous or malicious; (11) fails to

state a claim on which relief may be granted; or (ii1) seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a

court’s responsibility to determine that a plaintiff may properly maintain his complaint

“) before permitting his to proceed further with his action. Generally, a court should not

dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plaintiff's Complaint alleges personal injury as the result of Defendants’

negligence. See generally Compl. Plaintiff alleges that this Court has diversity

jurisdiction over Plaintiffs claims. Compl. at 4 10; Dkt. No. 1-1. Plaintiff clearly

alleges that she satisfies the amount in controversy requirement to establish diversity by

asserting that her damages exceed $75,000. Compl. at 4] 9. To plead complete diversity

of citizenship when corporations are involved a plaintiff must typically plead where the

corporation is incorporated and where it has its principal place of business. Kruglov v.

Copart of Connecticut, Inc., 771 Fed. Appx. 117, 118 (2d Cir. 2019). Plaintiff's

Complaint technically fails to meet this stringent pleading standard. It alleges the place

of incorporation for each Defendant, but makes no allegation as to their principal places

of business. See Compl. at 9 2-4. “If a complaint fails to allege a corporation’s

principal place of business, and if there is a possibility that a party’s citizenship, through

its principal place of business, might destroy diversity, then the pleading is insufficient

to establish diversity jurisdiction.” Kruglov v. Copart of Connecticut, Inc., 771 Fed.

Appx. at 118 (quoting Neat-N-Tidy Co. v. Tradepower (Holdings) Ltd., 777 F. Supp.

1153, 1156 (S.D.N.Y. 1991)) (emphasis added). Here, the Court notes that the is little

likelihood that this pleading defect is likely to destroy complete diversity. “Walmart’s

4) principal place of business is within the State of Arkansas.” Young v. Walmart, Inc.,

2020 WL 2099476, at *1 (D. Utah May 1, 2020); see also Breeze v. Bayco Prod., Inc.,

2020 WL 1812404, at *1 n. 1 (S.D. Ill. Apr. 9, 2020) (same); Monroe v. Walmart, Inc.,

2019 WL 2181923, at *1 (M.D. La. May 20, 2019) (same). There also appears little

likelihood that the primary place of business for the remaining Defendants, both Utah

corporations, will defeat diversity. Accordingly, the Court determines, solely for

purposes of this initial review, that the Complaint sufficiently alleges that the Court has

diversity jurisdiction.

Plaintiff alleges that she purchased a mattress that was shipped in a compressed

form and that when she attempted to open it it rapidly unfolded and knocked Plaintiff

over causing injury. Compl. at 11-16. She further alleges that there was no warning

included about the potential for injury in unpacking the mattress and that she could not

have known of such a risk. Jd. at §§ 17-20. The Complaint alleges three related

negligence causes of action: negligent failure to warn, id. at J§ 23-31, negligent failure

to properly inspect the product for safety, id. at J] 33-42, and negligent design. Jd. at

44-52. Common to these claims, Plaintiff alleges that one or more Defendant owed

a duty to her, id. at J§j 23, 33, & 44, that that duty was breached, id. at J 24, 34, & 45,

and that the breach of duty caused Plaintiffs injury. /d. at [9 25, 35, & 46. These

allegations are sufficient to establish a prima facie case and require Defendants to

respond to the claims. See, e.g., Amos v. Biogen Idec Inc., 28 F. Supp. 3d 164, 169-70

(W.D.N.Y. 2014) (negligent failure to warn); Rochester-Genesee Reg’l Trans. Auth. v.

Cummins Inc., 2010 WL 2998768, at *8 (W.D.N.Y. July 28, 2010) (negligent failure to

inspect). With respect to her negligent design claim, Plaintiff alleges that Defendants

were careless and negligent in failing to design safe packaging for the mattress. Compl.

at 47-50. This too is sufficient to require a response from Defendants. Tears v. Bos.

Sci. Corp., 344 F. Supp. 3d 500, 509-10 (S.D.N.Y. 2018) (negligent design).

ACCORDINGLY, it is hereby

ORDERED, that this action survives sua sponte review and requires a response

from Defendants; and it is further

ORDERED, that the Clerk shall issue Summonses and forward it along with a

packet containing General Order 25, which sets forth the Civil Case Management Plan

used by the Northern District of New York, along with copies of the Complaint, and this

Order to the United States Marshal for service upon the Defendants; and it is further

ORDERED, that a response to the Complaint be filed by Defendants or

Defendants’ counsel as provided for in the Federal Rules of Civil Procedure subsequent

to service of process on Defendants; and it is further

ORDERED, that the Clerk is directed to schedule a Rule 16 Conference before

the assigned Magistrate Judge; and it is further

ORDERED, that all motions shall comply with the Local Rules of Practice of

the Northern District. In accordance with the Local Rules, Plaintiff must promptly

“| notify the Clerk’s Office and all parties or their counsel of any change in Plaintiff's

address; her failure to do so will result in the dismissal of this action; and it is further

ORDERED, that the Clerk serve a copy of this Order upon Plaintiff in

accordance with the Local Rules.

IT IS SO ORDERED.

Date: June 2, 2020

Albany, New York

Ze

If

Da jiel J, Ste \art/

U.SMMagistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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