Opinion
Civil Action 20-912
10-08-2021
JEFFREY JOHN VALENTA, Plaintiff, v. BI INCORPORATED, Defendant.
Jeffrey John Valenta All counsel of record
Jeffrey John Valenta All counsel of record
CATHY BISSOON UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 45
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Jeffrey John Valenta (“Plaintiff”) filed this pro se action arising out of allegations that he was injured by a defective GPS ankle monitor. Presently before the Court is a Motion to Dismiss filed by Defendant BI Incorporated (“BI”). ECF No. 45. For the following reasons, it is respectfully recommended that the Motion to Dismiss be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Original Complaint
Plaintiff initiated this action by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), accompanied by a proposed complaint, on June 19, 2020. ECF No. 1. After Plaintiff cured certain deficiencies, the Court granted Plaintiff's IFP Motion on August 4, 2020, and his Complaint was filed on the same day. ECF Nos. 2-6.
In his original Complaint, Plaintiff asserted a Bivens claim and negligence claim against four United States Probation Officers and the Pretrial/Probation Service (collectively, the “Probation Defendants”), and a products liability claim against BI. ECF No. 6.
2. Prior Motions to Dismiss
The Probation Defendants and BI separately moved to dismiss Plaintiff's original Complaint. ECF Nos. 16 and 22. In support of its Motion to Dismiss, BI argued that Plaintiff's claim should be dismissed because the Court lacked diversity jurisdiction and Plaintiff's claim was barred by the two-year statute of limitations. ECF No. 23.
Upon consideration of the parties' submissions, the undersigned submitted a Report and Recommendation on April 1, 2021, recommending that the Motions to Dismiss be granted with leave to amend the Complaint as to the four probation officers and BI. ECF No. 40.
On July 21, 2021, United States District Judge Cathy Bissoon adopted the Report and Recommendation. ECF No. 43. Regarding Plaintiff's claims against BI, the Court held:
The Motion to Dismiss filed by Defendant BI Incorporated (Doc. 16) is GRANTED without prejudice, as follows. As the Magistrate Judge notes, Plaintiff failed to plead facts demonstrating that Plaintiff and all Defendants were citizens of different states in his Complaint. R&R at 15. However, the Court notes that Plaintiff and Defendant BI Incorporated both indicated that there may be complete diversity among the parties in their papers, so the pleading deficiency may be curable by amendment. See Plaintiff's Objections (Doc. 42) at 1-2; Defendant BI Incorporated's Brief in Support (Doc. 17) at 6. In addition, consistent with the R&R, Plaintiff's claims are time-barred to the extent his claims arise from his September 15, 2017 fall, but they are not time-barred relative to his June 2018 injuries. R&R at 16-18. Therefore, Plaintiff should be allowed an opportunity to amend with respect to diversity jurisdiction, and with respect to any allegations regarding events that occurred after June 19, 2018.Id. at 3.
Plaintiff was granted leave to amend his Complaint by August 11, 2021. Id.
3. Amended Complaint
Plaintiff filed the operative Amended Complaint on August 11, 2021. ECF No. 44. Plaintiff does not assert claims against the Probation Defendants in his Amended Complaint. He only proceeds against BI.
In his Amended Complaint, Plaintiff asserts that the Court has diversity jurisdiction under 28 U.S.C. § 1332 because BI, a citizen of Colorado, and Plaintiff, who resides in Pennsylvania, are citizens of different states and the amount in controversy exceeds $75,000. Id. ¶¶ 1, 2. As relief, Plaintiff requests compensatory damages of “not less than $100,000” and punitive damages. Id. ¶ 53.
Following arraignment on federal criminal charges, Plaintiff alleges that he was granted release on bond with conditions of pretrial release, including electronic monitoring. Id. ¶ 6. Plaintiff was fitted with a BI spatial ankle monitor, model “Loc8, ” which he wore on his right ankle until sometime prior to September 15, 2017. Id. ¶ 7.
At some point between August 19, 2015 and June 25, 2018, probation officers replaced Plaintiff's ankle monitor with a BI GPS ankle monitor, model “ExacuTrac One.” Id. ¶ 8. Plaintiff could not adjust or remove the device himself. Id. ¶ 9.
The ExacuTrac One device is powered by an internal, sealed lithium battery. Id. ¶ 10. Because the battery must be charged using a detachable electric cord, Plaintiff was required to be connected by this cord to a wall outlet while the monitor was charging. Id. ¶¶ 11, 16. The battery requires 2.5 hours to fully charge, and the charge lasts from 20 to 80 hours. Id. ¶¶ 12-13. According to BI's installation manual, the battery should be replaced after 2 years of continuous use; however, Plaintiff claims there is no way to determine the battery's age, and BI does not warn of any potential consequences if the battery is used past this expiration date. Id. ¶¶ 14-15.
In the weeks before June 25, 2018, Plaintiff's monitor began to malfunction. Id. ¶ 16. The monitor issued false alerts and the battery depleted more quickly than usual, requiring “Plaintiff to have to tether himself to a wall outlet more often and for longer intervals” to keep the device charged as required by his probationary guidelines. Id. On about June 10, 2018, the monitor overheated, reaching 130 degrees while charging, which caused Plaintiff pain and discomfort. Id. ¶ 17.
Plaintiff claims that he complained about the malfunctions to probation officers and his attorney on numerous occasions before, and on the date of, his sentencing hearing for federal criminal charges on June 25, 2018. Id. ¶ 18.
During Plaintiff's sentencing hearing, he again experienced pain and discomfort because the monitor was malfunctioning. Id. ¶¶ 19-20. As a result, Plaintiff was distracted and unable to fully participate in his hearing. Id. ¶ 20. Plaintiff complained to the judge presiding over his hearing. Id. ¶¶ 18-19.
After his sentencing hearing, the ExacuTrac One monitor was removed by a United States Marshal. Id. ¶ 21. Where the monitor had been, Plaintiff discovered a “weepy red silver dollar sized burn wound on his right ankle that was directly attributable to the malfunctioning overheating ankle monitor.” Id. Because Plaintiff could not remove the monitor himself, he claims that he was unable to discover this wound and learn the extent of his injury before this time. Id. ¶ 22.
Plaintiff received treatment for his injury at the CCA Youngstown facility. Id. ¶ 23. Plaintiff claims that he continues to experience sensitivity on his right ankle, which is exacerbated by wearing socks and shoes. Id. ¶ 26. Plaintiff claims that this pain and discomfort affects his gait, which in turn causes him additional hip and back pain. Id. ¶ 24. This also impedes his ability to perform his job as a wedding photographer, which requires him to focus and move for 12 hours or more. Id. ¶ 26.
Plaintiff's reference to CCA Youngstown appears to refer to Northeastern Ohio Correctional Center (“NEOCC”) in Youngstown, Ohio.
Based on these allegations, Plaintiff asserts a products liability claim sounding in strict liability against BI. Id. ¶¶ 27-52. He claims that BI is liable for manufacturing and selling the ExacuTrac One ankle monitor in a defective and unreasonably dangerous condition that caused him harm.
4. The Instant Motion to Dismiss
BI filed the instant Motion to Dismiss and Brief in Support on August 25, 2021. ECF Nos. 45 and 46. Plaintiff filed his Response in opposition on September 13, 2021. ECF No. 49. The Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
1. Federal Rule of Civil Procedure 12(b)(6)
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face, ” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
2. Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), “a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). Rule 12(b)(1) motions can raise either a facial or factual challenge to the Court's subject-matter jurisdiction. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack challenges the sufficiency of the pleadings, whereas a factual attack challenges the sufficiency of jurisdictional facts. Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). In resolving a facial attack, the Court must accept Plaintiff's well-pleaded factual allegations as true and draw all reasonable inferences in Plaintiff's favor. In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017). When resolving a factual attack, however, the Court may weigh and consider evidence outside the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
3. Pro se Pleadings
Pro se pleadings, “however inartfully pleaded, ” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Because Plaintiff is proceeding pro se, the Court will liberally construe his Complaint and employ less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
C. DISCUSSION
1. Jurisdiction
In support of the instant Motion, BI argues that Plaintiff's claims should be dismissed because there is no diversity jurisdiction. ECF No. 46 at 4. Although BI admits it is a citizen of a different state than Plaintiff, it argues that Plaintiff cannot satisfy the $75,000 amount in controversy requirement. BI argues that Plaintiff “summarily contends” the amount in controversy is established, based on what it characterizes as injuries of “blistering the size of a silver dollar on his ankle, hip and back pain that is somehow attributable to his ankle allegations, and for some time being unable to work as a photographer.” Id. at 5.
In response, Plaintiff argues that his allegations of pain and suffering, and the limits on his ability to work and receive pay, clearly satisfy the $75,000 amount in controversy. ECF No. 49 at 2. Plaintiff argues that it must appear to a legal certainty that his claim is, in fact, for less than the jurisdictional amount, and that this requirement “is not especially onerous” at this stage. Id. at 3 (quoting Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388 (3d Cir. 2016)). Moreover, he argues, the Court must consider his claim for punitive damages, and such claims are generally sufficient to satisfy the amount in controversy requirement. Id.
In order to establish diversity jurisdiction, two factors must be satisfied: (1) the controversy must be between citizens of different states; and (2) the amount in controversy must exceed $75,000. 28 U.S.C. § 1332.
Upon review, the Motion to Dismiss should not be granted on this basis. As to the first factor, there is complete diversity between Plaintiff and BI. Plaintiff is a citizen of Pennsylvania. BI is incorporated in Colorado, and it admits that it does not reside in Pennsylvania. ECF No. 46 at 5.
Regarding the second factor, the Court should also find that the amount in controversy is satisfied. As the United States Court of Appeals for the Third Circuit has explained:
A plaintiff asserting diversity jurisdiction bears the burden of demonstrating that the amount in controversy exceeds $75,000. Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 395 (3d Cir. 2016). The burden is not heavy, as “the sum claimed by plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.E. 845 (1938) (footnote omitted). As such, “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” Id. at 289, 58 S.Ct. 586 (emphasis added).In re Paulsboro Derailment Cases, 704 Fed.Appx. 78, 84 (3d Cir. 2017).
In his Amended Complaint, Plaintiff requests compensatory and punitive damages. In support of his request for compensatory damages, Plaintiff pleads that he suffered a burn that required medical treatment. ECF No. 44 ¶¶ 21, 23. Over three years later, he continues to suffer pain and sensitivity in his right ankle, which is aggravated by wearing shoes or socks. Id. ¶ 24. This discomfort has adversely affected Plaintiff's gait, causing hip and back pain. Id. It also has adversely impacted his primary source of income by impeding Plaintiff's ability to work as a wedding photographer. Id. ¶¶ 25-26. Based on this, he seeks compensatory damages of “not less than $100,000.” Id. ¶ 53
In determining the amount in controversy, punitive damages are also properly considered unless the claim is “‘patently frivolous and without foundation' because such damages are unavailable as a matter of law . . . .” Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993) (quoting Gray v. Occidental Life Ins. Co., 387 F.2d 935, 936 (3d Cir. 1968)). “If appropriately made, therefore, a request for punitive damages will generally satisfy the amount in controversy requirement because it cannot be stated to a legal certainty that the value of the plaintiff's claim is below the statutory minimum.” Golden ex rel. Golden v. Golden, 382 F.3d 348, 355 (3d Cir. 2004), overruled in part on other grounds by Marshall v. Marshall, 547 U.S. 293, 310-11 (2006); see also Hamm v. Allstate Property & Cas. Ins. Co., 908 F.Supp.2d 656, 664 (W.D. Pa. 2012).
Based on the pleadings, punitive damages are not clearly unavailable as a matter of law, and this requested relief should therefore be considered in calculating the amount in controversy. In product liability claims sounding in strict liability, as here, “it appears that a plaintiff may seek punitive as well as compensatory damages, although [the Pennsylvania] Supreme Court has not definitively so held.” Thorpe v. Bollinger Sports, LLC, No. 14-04520, 2015 WL 3400919, at *2 (E.D. Pa. May 27, 2015) (quoting Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983 (Pa. Super. Ct. 2005), aff'd 922 A.2d 890 (Pa. 2007)).
Punitive damages are awarded to “punish and deter outrageous, extreme, egregious behavior, ” and require evidence of the defendant's subjective appreciation of the “risk of harm to which the plaintiff was exposed and evidence that the defendant acted or failed to act in conscious disregard of that risk.” Thorpe, 2015 WL 3400919, at *2 (quoting Hutchinson ex rel. Hutchinson v. Luddy, 870 A.2d 766, 772 (Pa. 2005)). Thus, “[t]he act, or failure to act, must be intentional, reckless or malicious.” Id. (quoting Luddy, 870 A.2d at 772).
In his Amended Complaint, Plaintiff pleads a product liability claim for which punitive damages may be available. Based on his allegations that BI may have acted with knowledge of hazards associated with the product at issue, and construing his pro se complaint liberally, he also sufficiently pleads allegations to support his request for relief. ECF No. 44 ¶¶ 29, 34. Therefore, the Court should not find that such damages would be unavailable to Plaintiff as a matter of law.
Because Plaintiff's request for punitive damages is appropriately made, this is generally sufficient to satisfy the amount in controversy. In addition, Plaintiff also seeks compensatory damages arising out of claims that he suffered an ankle injury, which continues to cause him pain and suffering, and impedes his ability to earn compensation as a wedding photographer. Based on the totality of his requested relief, the Court cannot say to a legal certainty that Plaintiff could not recover more than the statutory amount of $75,000. For this reason, the Motion to Dismiss based on lack of jurisdiction should be denied.
2. Statute of Limitations
If the Court does not dismiss Plaintiff's claim based on lack of jurisdiction, BI argues, in the alternative, that certain allegations in Plaintiff's Complaint must be dismissed and/or stricken because they are barred by the statute of limitations. ECF No. 46 at 6. BI argues that, in particular, Plaintiff's allegations in three paragraphs of his Amended Complaint concern events that occurred before June 19, 2018, and any claim arising out of these events is barred by the applicable statute of limitations. BI requests that the Court strike the following paragraphs:
16. In the weeks preceding removal of the ExacuTac [sic] One monitor from the Plaintiff's ankle on June 25, 2018, the monitor began to malfunction causing false alerts and further the battery charge depleted quicker than usual causing Plaintiff to have to tether himself to a wall outlet more often and for longer intervals to maintain a charge and stay in compliance with Probation guidelines.
17. On or around June 10, 2018, the ankle monitor began to overheat at one point reaching 130 degrees while charging causing the Plaintiff pain and discomfort.
18. Plaintiff complained of these malfunctions to Probation and his attorney on numerous occasions leading up to his June 25, 2018 sentencing including specifically on the day of his hearing on a perceived violation and again on the day of his sentencing where he also complained to the Judge in his case during the hearing.ECF No. 44 ¶¶ 16-18.
BI requests the Court to strike these allegations under Federal Rule of Civil Procedure 12(f) as immaterial to Plaintiff's claim.
In his response in opposition, Plaintiff argues that BI misconstrues his allegations. ECF No. 49 at 4. Plaintiff argues that he is not claiming his “ultimate injury” occurred on June 10, 2018; instead, he includes these allegations to chronicle the series of events that ultimately led to the discovery of his injury on June 25, 2018. Id. He also argues that he is not required to bring his claim until he discovers the injury. Id.
Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed R. Civ. P. 12(f). The purpose of a Rule 12(f) motion to strike is “to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Tennis v. Ford Motor Co., 730 F.Supp.2d 437, 443 (W.D. Pa. 2010) (quoting Natale v. Winthrop Res. Corp., No. 07-4686, 2008 WL 2758238, at *14 (E.D. Pa. July 9, 2008)) (internal quotations omitted).
Although courts have “considerable discretion” in ruling on Rule 12(f) motions, “such motions are not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.” Id. (quoting Thornton v. UL Enterprises, LLC, No. 09-287E, 2010 WL 1005021, at *2 (W.D. Pa. Mar. 16, 2020)) (internal quotations omitted). “Striking some or all of a pleading is therefore considered a drastic remedy to be resorted to only when required for the purposes of justice.” Id. (quoting Thornton, 2010 WL 1005021, at *2) (internal quotations omitted).
Upon review, the Motion to Dismiss should be denied on this basis. Plaintiff's claim arises out of an injury he discovered after his ankle monitor was removed on June 25, 2021, and the purportedly defective ankle monitor that caused his injury. The Court has already held that Plaintiff's claim arising out of this injury is not barred by the statute of limitations. BI does not demonstrate that Plaintiff's allegations in paragraphs 16, 17 and 18 have no possible relation to this claim; to the contrary, Plaintiff's allegations specifically relate to how the device malfunctioned immediately before and/or while causing the burn at issue. There is also no apparent prejudice to BI by including these allegations in Plaintiff's Amended Complaint. Therefore, the instant Motion should also be denied on this basis.
Based on the pleadings, it is not clear when the burn happened. Plaintiff claims that he did not, and could not, discover the burn until his ankle monitor was removed after the sentencing hearing on June 25, 2021.
D. CONCLUSION
For the foregoing reasons, BI's Motion to Dismiss, ECF No. 45, should be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.