Colon ex rel. Molina v. Bic Usa, Inc.

• Decision Date: 19 December 2000
• Docket Number: No. 00 Civ. 3666(SAS).,00 Civ. 3666(SAS).
• Citation: 136 F.Supp.2d 196
• Parties: Josue COLON, an Infant under the age of 14 years by his Mother and Natural Guardian, Iris MOLINA, and Iris Molina, Individually, Plaintiffs, v. BIC USA, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

136 F.Supp.2d 196

Josue COLON, an Infant under the age of 14 years by his Mother and Natural Guardian, Iris MOLINA, and Iris Molina, Individually, Plaintiffs, v. BIC USA, INC., Defendant.

No. 00 Civ. 3666(SAS).

United States District Court, S.D. New York.

December 19, 2000.

COPYRIGHT MATERIAL OMITTED

Barry Levy, Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York City, for Plaintiffs.

Anthony Tagliagambe, London Fischer, LLP, New York City, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Plaintiffs, Josue Colon, an infant under the age of fourteen (14) by his mother and natural guardian, Iris Molina, and Iris Molina, individually, bring a personal injury action against defendant, BIC USA, Inc. ("BIC"), based upon the common law tort theories of negligence, strict products liability and breach of warranty in connection with the design, manufacturing, testing, merchandising, and marketing of a BIC disposable butane lighter. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332 and venue is proper in this district. Defendant now moves to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiffs' claims are expressly or impliedly preempted by the Consumer Product Safety Act ("CPSA"), 15 U.S.C. §§ 2051-2084 (2000), and the regulations promulgated by the Consumer Product Safety Commission ("CPSC"). For the reasons set forth below, defendant's motion is denied.

I. BACKGROUND

A. Factual Background

On January 2, 1998, Josue, then six (6) years old, sustained burns after setting his shirt on fire with a lighter manufactured by BIC.¹ See Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss ("Pl.Mem.") at 2. Josue suffered second and third degree burns to 52% of his body. See id. This incident occurred while Josue was staying with his aunt, Brunilda Rivera, in Worcester, Massachusetts. See id.

B. Procedural History

Plaintiffs filed their Summons and Complaint on February 9, 2000 in the Supreme Court of New York, County of New York. Defendant removed the action on March 10, 2000, but the case was remanded sua sponte by Judge Lewis A. Kaplan on March 27, 2000. See Order to Remand, Ex. C to Defendant's Notice of Motion, at 1. An Amended Summons and Complaint was served on April 14, 2000, and an Amended Answer was served on May 1, 2000. See Pl. Mem. at 3. On May 15, 2000, BIC filed a Notice of Removal with the Clerk of the Supreme Court of New York, County of New York asserting diversity jurisdiction.² See id. at 4.

II. DISCUSSION

A. Legal Standard

Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir.2000). "[T]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998) (quotation marks omitted); see also Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) ("The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.") (quotation marks omitted).

To properly decide a Rule 12(b)(6) motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the non-moving party's favor. See Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). The court may consider documents incorporated by reference in the pleadings, as well as documents, while not explicitly incorporated into the complaint, that are integral to plaintiffs' claims. See Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir.2000).

B. Procedural Issues

Two procedural arguments are raised by plaintiffs: (1) BIC has waived the defense of federal preemption by failing to raise it in its Answer; and (2) BIC has improperly relied on factual materials extraneous to the pleadings.

1. Waiver of the Preemption Defense

"Preemption is a defense `in the nature of avoidance which falls within the realm of [Federal] Rule of Civil Procedure 8(c).'" Heller v. Delta Air Lines, Inc., No. 92 Civ.1937, 1993 WL 330093, at *1 (S.D.N.Y. Aug. 25, 1993) (quoting In re Air Crash Disaster at Stapleton Int'l Airport, 721 F.Supp. 1185, 1186 (D.Colo.1988)). Plaintiffs assert that BIC failed to make any "reference to an affirmative defense based upon preemption" in its original or Amended Answer and has therefore waived this defense. Pl. Mem. at 4.

Affirmative defenses pled pursuant to Federal Rule of Civil Procedure 8(c) are subject to the general rules of pleading and therefore must only state a defense in short and plain terms. See D.S. Am. (East), Inc. v. Chromagrafx Imaging Sys., Inc., 873 F.Supp. 786, 797 (E.D.N.Y.1995). The main reason for Rule 8(c) is to protect plaintiffs from any unfair surprise. See United States v. Continental Illinois Nat'l Bank and Trust Co. of Chicago, 889 F.2d 1248, 1255 (2d Cir.1989); see also D.S. Am., 873 F.Supp. at 797 ("An affirmative defense must sufficiently apprise the opposing party of the nature of the defense, providing the opposing party with adequate notice of the relevant elements of the defense."). The twelfth affirmative defense in BIC's Amended Answer states that "the subject lighter involved in the incident on January 2, 1998 met and/or exceeded the applicable federal and industry standard." Amended Answer, Ex. C to Reply Affidavit of Anthony Tagliagambe in Further Support of Defendant's Motion to Dismiss, ¶ 24. While BIC did not specifically use the word "preemption" in its affirmative defense, the plaintiffs were placed on notice of a defense of federal preemption. Accordingly, BIC has not waived this defense.

2. BIC's Reliance on Extraneous Materials

Plaintiffs argue that BIC improperly relies on factual materials extraneous to the pleadings. See Pl. Mem. at 6. Plaintiffs further assert that should the Court consider these materials, a decision on the motion should be deferred until plaintiffs have been given the opportunity to conduct discovery to the extent necessary to oppose the motion. See id. BIC argues that the issue of whether plaintiffs' claims are preempted by federal law is a legal issue not dependent on the facts of this particular case. See Defendant's Reply Memorandum of Law ("Reply Mem.") at 10.

"`When matters outside the pleadings are presented [with or] in response to a 12(b)(6) motion,' a district court must either `exclude the additional material and decide the motion on the complaint alone' or `convert the motion to one for summary judgment under [Federal Rule of Civil Procedure 56(c)] and afford all parties the opportunity to present supporting material.'" Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000) (quoting Fonte v. Board of Managers of Cont'l Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988)). This conversion requirement is strictly enforced and a district court "errs [if] it considers affidavits and exhibits submitted by defendants, ... or relies on factual allegations contained in legal briefs or memoranda, ... in ruling on a 12(b)(6) motion to dismiss." Id. (quotation marks and citations omitted).

BIC has submitted various affidavits and letters attesting to its compliance with the CPSA and the regulations promulgated by the CPSC, yet has not made a formal request to treat this motion as a motion for summary judgment.³ Although courts may convert a Rule 12(b)(6) motion into a motion for summary judgment without formal notice to the parties, it is inappropriate to do so when, as here, the plaintiffs have not submitted materials other than the pleadings nor have they had the opportunity to complete discovery. See Cantor v. NYP Holdings, Inc., 51 F.Supp.2d 309, 310 (S.D.N.Y.1999). Accordingly, BIC's motion will be treated as a Rule 12(b)(6) motion and no materials will be considered unless they are incorporated by reference in the pleadings or are integral to plaintiffs' claims. See Rothman, 220 F.3d at 88-89.

C. Preemption

1. General Concepts

The Supremacy Clause of the Constitution provides that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Federal law displaces state law where: (1) Congress expressly preempts state law; (2) Congress has established a comprehensive regulatory scheme in the area effectively removing the entire field from the state realm; or (3) state law directly conflicts with federal law or interferes with the achievement of federal objectives. See English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990); see also Lady v. Neal Glaser Marine, Inc., 228 F.3d 598, 601 (5th Cir.2000); Bedford Affiliates v. Sills, 156 F.3d 416, 426 (2d Cir.1998). However, there is a presumption against preemption. In order to "avoid `unintended encroachment on the authority of the States, ... a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find preemption.'" Rombom v. United Air Lines, Inc., 867 F.Supp. 214, 218 (S.D.N.Y.1994) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)). The areas of health and safety have traditionally been within the police powers of the states. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); see also Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) ("States traditionally have had great latitude under their police powers...