Abedrabbo v. Topps Meat Co. Llc

• Decision Date: 21 December 2010
• Docket Number: Civil Action No. 09–01838 (CKK).
• Parties: Fahim ABEDRABBO, et al., Plaintiffs,v.TOPPS MEAT COMPANY, LLC, Defendant.
• Court: U.S. District Court — District of Columbia

756 F.Supp.2d 18

Fahim ABEDRABBO, et al., Plaintiffs,

v.TOPPS MEAT COMPANY, LLC, Defendant.

Civil Action No. 09–01838 (CKK).

United States District Court, District of Columbia.

Dec. 21, 2010.

Athan Theodore Tsimpedes, Law Offices of Athan T. Tsimpedes, Washington, DC, for Plaintiffs.Douglas Michael Grimsley, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, Walter L. Williams, Andrew Clark Hall, Wilson Elser Moskowitz Edelman & Dicker, LLP, McLean, VA, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiffs commenced this action against Defendant Topps Meat Company, LLC (“Defendant”) on September 24, 2009, bringing eight causes of action in connection with the personal injuries they allegedly suffered after consuming Escherichia coli-contaminated ground beef distributed by Defendant. Plaintiffs assert a single cause of action under the Magnuson–Moss Warranty–Federal Trade Commission Improvement Act (the “Magnuson–Moss Act” or, simply, the “Act”), 15 U.S.C. §§ 2301 et seq., as well as seven state-law statutory and common law claims. Presently before the Court is Defendant's [15] Motion for Summary Judgment for Lack of Subject Matter Jurisdiction. For the reasons set forth below, the Court concludes that it is without subject matter jurisdiction to hear Plaintiffs' claims and shall therefore GRANT Defendant's motion and DISMISS WITHOUT PREJUDICE this action in its entirety.

I. PRELIMINARY MATTERS

Before proceeding, the Court pauses to make an overarching observation about the nature of Plaintiffs' opposition to the present motion. Although the motion now before the Court is contested, Plaintiffs have failed to rebut or otherwise dispute the factual showing made by Defendant in support of its Motion for Summary Judgment. Here, the Court notes that the District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Rule LCvR 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts to which that party contends there is no genuine dispute, with specific citations to those portions of the record upon which the party relies in fashioning the statement. Where the opposing party fails to submit a statement enumerating all material facts which the party contends are in dispute, the district court may take all facts identified by the movant as admitted. See Local Rule LCvR 7(h)(1) (“In determining a motion for summary judgment, the court may assume that facts are admitted, unless such fact is controverted in the statement of genuine issues filed in opposition to the motion.”); see also Arrington v. United States, 473 F.3d 329, 335 (D.C.Cir.2006). In this case, the parties were informed that this Court strictly adheres to the dictates of this rule. See Scheduling and Procedures Order (Apr. 19, 2010), Docket No. [14], at 3–4. Nevertheless, whereas Defendant filed a statement in conformance with the rule, Plaintiffs elected not to file a statement in opposition. Accordingly, the Court shall treat all facts identified in Defendant's Statement of Undisputed Facts as admitted.

II. BACKGROUND

This action concerns allegations that Plaintiffs suffered personal injuries arising from the consumption of ground beef products allegedly containing Escherichia coli (“ E.coli ”) O157:H7. See generally Compl., Docket No. [1]. Plaintiffs—a group of twelve individuals—claim to have purchased and consumed varying amounts of ground beef distributed by Defendant in the summer and fall of 2007. Id. ¶¶ 11–12, 14–15, 17–18, 20–22, 24–25, 27–28, 30–31. The packaging accompanying Defendant's products allegedly contained language along the lines of “Topps 100% Premium Hamburger” or “Topps 100% Pure Ground Beef Hamburgers.” Id. ¶ 37. After consuming Defendant's products, Plaintiffs allegedly exhibited symptoms consistent with E. coli exposure, including abdominal cramps, bloody diarrhea, and fatigue. Id. ¶¶ 13, 16, 18, 20, 23, 26, 29, 32. Some sought medical attention in connection with their symptoms. Id. On September 25, 2007, the Food and Safety Inspection Service for the U.S. Department of Agriculture announced that Defendant had recalled approximately 331,582 pounds of ground beef. Id. ¶ 33. On September 29, 2007, Defendant announced that it was expanding its recall to include 21.7 million pounds of ground beef. Id. ¶ 35.

Plaintiffs assert one cause of action under the Magnuson–Moss Act, 15 U.S.C. §§ 2301 et seq. Compl. ¶¶ 43–48. Specifically, Plaintiffs allege that Defendant “breached expressed [sic] and implied warranties as the E. coli was not disclosed that was in the [p]roduct purchased by Plaintiffs.” Id. ¶ 46. As a result, Plaintiffs allegedly “suffer[ed] extreme pain and suffering, and requir[ed] medical attention.” Id. ¶ 48. Additionally, Plaintiffs assert seven state-law statutory and common law claims, including causes of action for negligence, strict liability, breach of contract, and loss of consortium. Id. ¶¶ 49–78. In connection with all eight claims, Plaintiffs seek reimbursement for the products they purchased, compensatory damages for “pain and suffering,” and attorneys' fees and costs. Id. at 17.

On May 3, 2010, Defendant filed the present Motion for Summary Judgment for Lack of Subject Matter Jurisdiction. See Def.'s Mem. of P. & A. in Supp. of its Mot. for Summ. J. for Lack of Subject Matter Jurisdiction (“Def.'s Mem.”), Docket No. [15–2]. Plaintiffs filed an opposition on June 18, 2010. See Pls.' Mem. of P. & A. in Supp. of their Opp'n to Def.'s Mot. for Summ. J. (“Pls.' Opp'n”), Docket No. [19]. Defendant elected not to file a reply. See Def.'s Notice Regarding Reply to Opp'n to Def.'s Mot. for Summ. J., Docket No. [20]. Accordingly, the matter is now fully briefed and ripe for adjudication.

III. LEGAL STANDARD

A plaintiff bears the burden of establishing that a federal court has subject matter jurisdiction. Moms Against Mercury v. Food & Drug Admin., 483 F.3d 824, 828 (D.C.Cir.2007). Federal courts are courts of limited jurisdiction, with the ability to hear only those cases entrusted to them by the Constitution or an act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In a suit between private litigants, a plaintiff generally demonstrates the existence of subject matter jurisdiction by establishing federal question jurisdiction pursuant to 28 U.S.C. § 1331 or diversity jurisdiction pursuant to 28 U.S.C. § 1332. Where the district court's jurisdiction is dependent solely on the diversity of citizenship between the parties, there must be “complete diversity,” meaning that no plaintiff may have the same citizenship as any defendant. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373–74, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978).

IV. DISCUSSION

Although Plaintiffs never identify the grounds for this Court's jurisdiction with model clarity, see Compl. ¶¶ 1–2, the Court concludes that neither federal question nor diversity jurisdiction obtain in the circumstances of this case. The Court addresses each ground for jurisdiction in turn.

A. The Court Does Not Have Federal Question Jurisdiction Based On Plaintiffs' Claim Under The Magnuson–Moss Act

The Magnuson–Moss Act “was promulgated to increase consumer rights and protections by imposing minimum standards for manufacturers' warranties and by providing various avenues for consumer redress.” Walsh v. Ford Motor Co., 627 F.Supp. 1519, 1522 (D.D.C.1986). The Act confers upon consumers a private cause of action for (a) violations of the substantive provisions of the Act, and (b) breaches of a written or implied warranty. 15 U.S.C. § 2310(d)(1). Provided certain jurisdictional prerequisites are met, the statute permits the action to be brought in federal court. Id. at § 2310(d)(1)(B).

1. Plaintiffs' Personal Injury Claims Are Not Cognizable Under The Magnuson–Moss Act

Generally speaking, personal injury claims are not cognizable under the Magnuson–Moss Act. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1038 (9th Cir.2004) (“Congress intended the Magnuson–Moss Warranty Act to create personal injury liability only under very limited circumstances.”); accord Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1065–66 (5th Cir.1984). This limitation is derived from the statute itself, which provides:

Nothing in this chapter (other than sections 2308 and 2304(a)(2) and (4) of this title) shall (A) affect the liability of, or impose liability on, any person for personal injury, or (B) supersede any provision of State law regarding consequential damages for injury to the person or other injury.

15 U.S.C. § 2311(b)(2). Nevertheless, by its terms, the statute carves out three exceptions to the general prohibition against personal injury claims— i.e., claims asserted under Section 2308, claims asserted under Section 2304(a)(2), and claims asserted under Section 2304(a)(4).¹Id. In opposing the present motion, Plaintiffs first attempt to situate their Magnuson–Moss Act claim within the first of these exceptions— i.e. claims asserted under Section 2308. Those efforts are misguided.

Section 2308(a) of the Act provides as follows:

No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product.

15 U.S.C. § 2308(a). Plaintiffs baldly assert that “by asking for dismissal [Defendant] is disclaiming the implied warranty of fitness for a particular purpose after giving a written warranty on the product stating, ‘Topps 100% Pure Ground Beef Hamburgers.’ ” Pls.' Opp'n at 2. For at least two reasons, Plaintiffs' argument is...