Kovalev v. Lidl US, LLC

• Docket Number: CIVIL ACTION NO. 21-3300
• Decision Date: 21 December 2022
• Citation: Kovalev v. Lidl US, LLC, 647 F.Supp.3d 319 (E.D. Pa. 2022)
• Parties: Sergei KOVALEV, Plaintiff, v. LIDL US, LLC, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

647 F.Supp.3d 319

Sergei KOVALEV, Plaintiff, v.LIDL US, LLC, et al., Defendants.

CIVIL ACTION NO. 21-3300

United States District Court, E.D. Pennsylvania

Filed December 21, 2022

Sergei Kovalev, Philadelphia, PA, Pro Se.

Darren L. Harrison, John M. Campbell, Cipriani & Werner, Blue Bell, PA, for DefendantLidl US, LLC.

John M. Campbell, Cipriani & Werner, Blue Bell, PA, for DefendantsLidl U.S. Operations, LLC, H & S Bakery, Inc., H & S Holdings Corporation, Lidl Stiftung & Co. KG.

OPINION

Slomsky, District Judge

TABLE OF CONTENTS

I.INTRODUCTION ... 329

II.BACKGROUND ... 330

A.Parties ... 330

B.Facts ... 331

C.Procedural History ... 332

1.Lidl Defendants' Motion ... 333

2.H & S Defendants' Motion ... 333

3.Lidl Stiftung's Motion ... 333

III.STANDARDS OF REVIEW ... 334

A.Motion to Dismiss Standard Under Federal Rule of Civil Procedure12(b)(2) — Personal Jurisdiction ... 334

B.Motion to Dismiss Standard under Federal Rule of Civil Procedure 12(b)(6) — Failure to State a Claim ... 334

C.Pro Se Representation Requires the Court to Construe Plaintiff's Complaint Liberally ... 335

D.Motion to Strike Standard under Federal Rule of Civil Procedure 12(f) ... 335

IV.ANALYSIS 336

A. Lidl Stiftung's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(2) for Lack of Jurisdiction ... 336

B.Motions to Dismiss Certain Counts under Federal Rule of Civil Procedure 12(b)(6) for Failure to State a Claim ... 341

1.Count II: Breach of Express Warranty ... 341

2.Count IV: Breach of Implied Warranty of Fitness for a Particular Purpose ... 344

3.Count VI: Negligence Per Se ... 345

4.Count VII: Negligent Infliction of Emotional Distress ... 346

i. Contractual or Fiduciray Duty ... 347

ii.Physical Impact ... 348

iii.Zone of Danger ... 349

iv.Bystander (Witnessing a Tortious Act Conducted Against a Close Relative) ... 349

5.Count VIII: Fraud and Fraudulent Misrepresentation ... 349

6.Count IX: Reckless Endangerment ... 351

7.Count X: Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law ... 351

8.Count XI: Unjust Enrichment ... 353

9.Punitive Damages ... 354

C.Motions to Strike Allegations from the Complaint ... 355

V.CONCLUSION ... 355

I.INTRODUCTION

This matter arises from the purchase of allegedly moldy loaves of bread.DefendantsLidl US, LLC and Lidl US Operations, LLC(the "Lidl Defendants") supply and operate stores where Plaintiff, Sergei Kovalev, purchased the bread.DefendantLidl Stiftung & Co. KG ("Lidl Stiftung") is a German limited partnership¹ and is the parent company of Lidl Defendants.DefendantsH & S Bakery, Inc. and H & S Holdings Corporation(the "H & S Defendants") are the manufacturers of the bread.Does 1 through 10 are unidentified Defendants.The above-named entities collectively will be referred to as "Defendants."In an Amended Complaint, Plaintiff alleges claims against Defendants under Pennsylvania common and statutory law.(Doc. No. 34.)

Defendants have filed various motions in this case.First, Lidl Defendants filed a Motion to Dismiss Certain Counts and Strike Allegations from Plaintiff's Amended Complaint (the "Lidl Defendants' Motion").(Doc. Nos. 41, 66.)Second, H & S Defendants filed a Motion to Dismiss Certain Counts and Strike Allegations from Plaintiff's Amended Complaint (the "H & S Defendants' Motion").(Doc. No. 70.)Lastly, Lidl Stiftung filed a Motion to Dismiss Plaintiff's Amended Complaint for Lack of Jurisdiction and, in the Alternative, to Dismiss Certain Counts and Strike Allegations from Plaintiff's Amended Complaint ("Lidl Stiftung's Motion").(Doc. No. 73.)

For reasons discussed below, the Court will: (1) grant in part and deny in part Lidl Defendants' Motion to Dismiss; (2) grant in part and deny in part H & SDefendants' Motion to Dismiss; and (3) grant Lidl Stiftung's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction.The Court will deny Lidl Defendants' and H & S Defendants' Motions to Strike.The Court need not rule on Lidl Stiftung's Motion to Strike because its Motion to Dismiss is being granted.

II.BACKGROUND

A.Parties

Because Defendants in this case have nearly similar names, the Court will provide a brief description of each Defendant.

There are three Lidl Defendants: (1)Lidl Stiftung; (2)Lidl US, LLC; and (3)Lidl US Operations, LLC.²

Lidl Stiftung is a German limited partnership.³(Doc. No. 34 ¶ 5.)Plaintiff claims that Lidl Stiftung"expanded itself into the United States markets by creating in the United States ... [Lidl Defendants and Lidl US Management, Inc.⁴]...."(Id.¶ 33.)Lidl Stiftung"represent[s] an international supermarket chain" and executes its operational and managerial responsibilities "by using the United States Agents [Lidl Defendants and Lidl US Management, Inc.] to control its retail empire in the United States."(Id.¶ 31.)Further, Plaintiff characterizes Lidl Stiftung as "a corporate parental company for all additional Lidl Defendants ... [and] controlling all Lidl companies operating within U.S. territorial limits."(Id.¶ 5.)

Lidl US, LLC is a subsidiary of Lidl Stiftung and is a Delaware limited liability company.(Id.¶¶ 9-10.)It is "registered to conduct business under the laws of the State of Pennsylvania" and has a fictitious name registered with the Pennsylvania Department of State.(Id.¶ 10.)Lidl US, LLC has its principal place of business in Arlington, VA. (Id.¶ 11.)It creates and distributes Lidl food products and supplies with the assistance of other entities.(Id.¶ 12.)Specifically, Plaintiff alleges that "Lidl US, LLC is an agent and alter ego of Lidl Stiftung ... where unity of control exists through a parent Lidl Stiftung ... openly exercising substantially total ownership control over the management and activities of Lidl US, LLC and Lidl US Operations, LLC."(Id.¶ 38.)

Lidl US Operations, LLC is also a Delaware limited liability company authorized to conduct business in Pennsylvania and is registered with the Pennsylvania Department of State.(Id.¶ 15.)It has the same principal place of business as Lidl US, LLC.(Id.¶ 16.)Plaintiff states that Lidl US Operations, LLC is an "agent and alter ego" of Lidl US, LLC.(Id.¶¶ 13, 18.)Plaintiff claims that this relationship is derived from "Lidl US, LLC openly exercising substantially total ownership control over the management and activities of Lidl US Operations, LLC."(Id.¶ 46.)Lidl US Operations, LLC is "assigned a role for operation and maintenance of [the] supermarket chain."(Id.¶ 44.)

Plaintiff alleges that there is a parent-subsidiary relationship among the Lidl parties and that they are "operating members of the same corporate umbrella strategy created to reduce financial liability by splitting the same entity into multiple jointly controlled and operated companies."(Id.¶¶ 17-19.)At the top of this corporate hierarchy is Lidl Stiftung, which Plaintiff characterizes as "the sole and/or major equity member of Lidl US, LLC."(Id.¶ 17.)Lidl US, LLC owns Lidl US Operations, LLC, and therefore the latter operates as the subsidiary and agent of the former.(Id.¶ 18.)Lidl's marketing materials state that Lidl is a "family-owned business" and "jointly call[ ] their United States operations as 'Lidl US.'"(Id.¶ 34.)Further, Plaintiff states that Lidl Stiftung and Lidl Defendants are part of "one family owned-and-operated company that divided its large financial holdings into [a] multitude of different companies directly controlled by the same family members."(Id.¶ 35.)

The H & S Defendants are entities that manufacture Lidl's bread.(Id.¶ 21.)Plaintiff's Amended Complaint avers that "Lidl Defendants with [the] participation of H & S Defendants[,] sold to Mr. Kovalev already contaminated and dangerous bread."(Id.¶ 57.)H & S Defendants have registered a trademark with the Pennsylvania Department of State.(Id.¶ 25.)They are Maryland corporations with a shared principal office in Maryland.(Id.¶¶ 22-23.)

As a final note, Plaintiff states:

[A]ll Defendants were acting in the capacities of partners, superiors, agents, servants, associates, employees, management and supervising entities, joint venture, accomplices, conspirators and/or co-conspirator[s] of each other....Defendants are liable for all causes of action set forth below under the theories, including but not limited to, of actual agency, apparent agency, ratification, respondeat superior, direct liability, assumption of liability, negligent contracting, negligent retaining, negligent supervision, inadequate training and/or failure to train.

(Id.¶¶ 27-28.)

B.Facts⁵

Plaintiff purchased loaves of bread from two Lidl locations.(Id.¶¶ 53, 67.)The first purchase occurred on March 19, 2021.(Id.¶ 53.)A receipt copied in the Amended Complaint shows that Plaintiff purchased eight loaves of bread on that date.(Id.)The packaging describes the bread as "New & Improved" and Lidl's website touts its products as "High Quality."(Id.¶¶ 54, 115, 118.)Plaintiff states that "each package of '12 Grain Bread' was manufactured under Lidl's name[ ][and] was distributed[ ] and sold by Lidl."(Id.¶ 54.)Further, "Lidl's name [was] printed on each package, including Lidl's address and telephone number."(Id.)

Plaintiff ate the first package of bread over a period of about two days and subsequently became ill.(Id.¶ 60.)According to Plaintiff, the bread he ate was "extensively contaminated with dangerous disease-causing toxic mold (toxic fungus)," and he was unaware of its presence before ingesting the bread.(Id.¶¶ 57-58, 60.)After eating bread from the first package, Plaintiff experienced "difficulty breathing [and] abdominal pain and discomfort."(Id.¶ 60.)Plaintiff then decided to eat bread from a second package and "became violently sick with nausea, vomiting, abdominal pains and cramps, and severe general malaise."(Id.¶ 61.)He inspected the bread and discovered...