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