United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT BULLET GUARD
CORPORATION'S MOTION TO DISMISS [#99] AND CANCELING
GERSHWIN A. DRAIN
before the Court is Defendant Bullet Guard Corporation's
Motion to Dismiss, filed on April 2, 2019. Plaintiff filed a
Response on April 23, 2019, and Defendant filed a Reply on
May 7, 2019. Upon review of the parties' submissions, the
Court concludes that oral argument will not aid in the
disposition of this matter. Accordingly, the Court will
resolve Defendant's Motion to Dismiss on the briefs and
will cancel the hearing set for June 14, 2019. See
E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the
Court will deny Defendant's Motion to Dismiss.
instant action stems from Plaintiff's visit to a take-out
Pizza Hut restaurant on December 16, 2014. When Plaintiff
attempted to retrieve her pizza from the pizza dispensary
drawer her left index fingertip was amputated. Plaintiff
filed this action on January 25, 2017. Plaintiff originally
sued the Pizza Hut franchisee that operated the restaurant,
as well as related Pizza Hut entities. The original Complaint
asserted product liability claims against John Doe
October 11, 2018, the Pizza Hut Defendants moved for notice
of non-party fault. The Pizza Hut Defendants indicated that
discovery had revealed that Bullet Guard designed,
manufactured, and installed the pizza dispensary device at
issue herein. The Court granted the Pizza Hut Defendants'
Motion for Notice of Non-Party Fault on November 13, 2018.
December 18, 2018, Plaintiff moved for leave to file a second
amended complaint in order to add Bullet Guard as a defendant
and assert products liability claims against it. On March 8,
2019, this Court entered an Order granting Plaintiff's
Motion for Leave to File Second Amended Complaint.
LAW & ANALYSIS
Standard of Review
Rule of Civil Procedure 12(b)(6) allows the court to make an
assessment as to whether the plaintiff has stated a claim
upon which relief may be granted. See Fed. R. Civ.
P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2)
requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,' in order
to ‘give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.'”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citing Conley v. Gibson, 355 U.S. 41, 47
(1957). Even though the complaint need not contain
“detailed” factual allegations, its
“factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all
of the allegations in the complaint are true.”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting
Bell Atlantic, 550 U.S. at 555).
court must construe the complaint in favor of the plaintiff,
accept the allegations of the complaint as true, and
determine whether plaintiff's factual allegations present
plausible claims. To survive a Rule 12(b)(6) motion to
dismiss, plaintiff's pleading for relief must provide
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Id. (citations and quotations omitted).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009). “Nor does a complaint suffice
if it tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Id. The
plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'- ‘that the pleader is entitled to
relief.'” Id. at 1950.
Defendant's Motion to Dismiss
raises two arguments in support of its present motion.
Defendant first asserts that Plaintiff's amendment to add
Bullet Guard does not relate back to the date of the original
complaint. Thus, Plaintiff's claims against Bullet Guard
are untimely because the statute of limitations for personal
injury claims is three years and Plaintiff did not file suit
against Bullet Guard within three years of the incident
giving rise to this action. Defendant further argues that
even if Mich. Comp. Laws § 600.2957 applies here,
Plaintiff's claims are still ripe for dismissal because a
Notice of Non-Party Fault was never filed as to Bullet Guard.
to Defendant's argument, Plaintiff's claims are
timely pursuant to Mich. Comp. Laws § 600.2957.
Defendant's argument has been rejected by the Michigan
courts. See Taylor v. Mich. Petroleum Techs., 307
Mich.App. 189, 196-97; 859 N.W.2d 715 (Mich. Ct. App. 2014).
In Taylor, the Michigan Court of Appeals held that
“with the enactment of MCL 600.2957(2), the Legislature
made a clear policy choice in favor of allowing a plaintiff
to amend his or her complaint to include a nonparty within 91
days of the identification of the nonparty and have that
amendment relate ...