Pritchard v. Dow Agro Sciences

255 F.R.D. 164, 2009 U.S. Dist. LEXIS 108, 2009 WL 33370
CourtDistrict Court, W.D. Pennsylvania
DecidedJanuary 5, 2009
DocketCivil Action No. 07-1621
StatusPublished
Cited by16 cases

This text of 255 F.R.D. 164 (Pritchard v. Dow Agro Sciences) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pritchard v. Dow Agro Sciences, 255 F.R.D. 164, 2009 U.S. Dist. LEXIS 108, 2009 WL 33370 (W.D. Pa. 2009).

Opinion

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. Introduction

Before the Court are two motions: (1) Plaintiffs Robert T. Pritchard, Sr. and Elizabeth Ann Pritchard’s (“Plaintiffs”) Motion to Withdraw Admissions and to Extend Time for Filing (Docket No. 46); and (2) Plaintiffs’ Motion for Extension of Time to File Plaintiffs’ Causation Expert Reports (Docket No. 50). For the foregoing reasons, the Court GRANTS both Motions.

II. Background

The instant matter is essentially a toxic tort case in which Plaintiffs assert that chemicals manufactured and sold by Defendants Dow Agro Sciences (“Dow”) and Southern Mill Creek Products of Ohio’s (“Southern Mill”; collectively, “Defendants”) caused Robert T. Pritchard (“Mr.Pritchard”) to develop cancer in the form of Non-Hodgkin’s Lymphoma.1 (Docket No. 23 at ¶¶ 20). Mr. Pritchard is and has been self employed as an exterminator/pest control operator, and as such, allegedly used the chemicals manufactured by Defendants. (Docket No. 23 at ¶¶ 17-10). He alleges that despite taking all the precautionary measures recommended on the chemicals’ labels, he began experiencing medical problems. (Docket No. 23 at ¶ 11). On August 28, 2005, Mr. Pritchard was diagnosed with Non-Hodgkin’s Lymphoma. (Docket No. 23 at ¶ 13). Thus, given these allegations, this case encompasses scientific, medical, product liability, causation, expert, and other evidentiary issues on liability, alone.

Initially, Plaintiffs obtained a writ of summons on August 27, 2007, and filed their pro se complaint on October 29, 2007 in the Court of Common Pleas of Fayette County, Pennsylvania. (Docket No. 1). Therein, the following claims were alleged: negligence, strict liability, and loss of consortium and services (Counts I, II, V) against both Defendants; as well as breach of implied warranty of merchantability and misrepresentation (Counts III, IV) against Dow. (Docket No. 1). At each count, Plaintiffs requested medical costs, punitive damages, damages for pain and suffering, as well as reasonable attorney fees and court costs. (Docket No. 1). Thereafter, this case was removed by Defendants on November 28, 2007 based on this Court’s diversity jurisdiction.2 (Docket No. 1). On November 29, 2007, Dow filed a Motion to Dismiss and Motion to Strike Plaintiffs’ Complaint seeking dismissal of Plaintiffs’ misrepresentation claim (Count IV), arguing failure to properly plead the elements of intentional and negligent misrepresentation. (Docket Nos. 2 and 3). Additionally, said Defendant argued that Plaintiffs’ request for attorneys fees at each count of their complaint should be stricken. Id. Likewise, Southern Mill filed a Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f) asserting that the Court should strike Plaintiffs’ request for attorney fees in Counts I, II and V of Plaintiffs’ Complaint. (Docket Nos. 8 and 9). That same day, Southern Mill also filed its Answer and Affirmative Defenses to the remaining claims. (Docket No. 10).

[167]*167On January 3, 2008, Plaintiffs filed a Motion for Extension of Time to Amend their Complaint.3 (Docket No. 13). In response, on January 7, 2008, Defendants filed a Response in Opposition arguing that Plaintiffs’ Motion should be denied as untimely. (Docket No. 14). The Court summarily granted Plaintiffs’ Motion for Extension and Plaintiffs filed their Amended Complaint on February 6,2008. (Docket No. 16).

Thereafter, Southern Mill filed its Answer and Affirmative Defenses to the Amended Complaint on February 8, 2008. (Docket No. 17). On that same day, Dow filed its second motion to dismiss Plaintiffs’ Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) again arguing for dismissal of the misrepresentation claim (Count IV), for failure to properly plead. (Docket Nos. 18 and 19). Later, on February 27, 2008, Dow filed its Affirmative Defenses and Answer to the remaining claims in Plaintiffs’ Amended Complaint. (Docket No. 20). Plaintiffs then filed their Brief in Opposition to Dow’s Motion to Dismiss on March 4, 2008, asserting the sufficiency of their misrepresentation claim as pled. (Docket No. 21). After consideration, the Court granted Dow’s Motion to Dismiss, thereby dismissing Plaintiffs’ misrepresentation claim (Count IV) because Plaintiffs failed to specify a claim for negligent or intentional misrepresentation. (Docket No. 22). In addition, the Court granted Plaintiffs leave to file a Second Amended Complaint by March 25, 2008. (Docket No. 22).

On March 26, 2008, Plaintiffs filed their Second Amended Complaint asserting the following claims: negligence, strict liability, and loss of consortium and services (Counts I, II, V) against both Defendants; as well as breach of implied warranty of merchantability and misrepresentation (Counts III, IV) against Dow. (Docket No. 23).

Subsequently, on April 4, 2008, Dow filed a Motion to Dismiss Plaintiffs’ Second Amended Complaint Pursuant to Fed.R.Civ.P. 41(b), or in the Alternative, to Dismiss Count TV with Prejudice Pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the Second Amended Complaint should be dismissed in its entirety as untimely, and that the “case should [] proceed based on the First Amended Complaint, except for Count IV (misrepresentation), which this Court previously dismissed and now should order to be dismissed with prejudice.” (Docket No. 25 at 2). Likewise, Southern Mill filed its Motion to Dismiss arguing dismissal on the basis of untimeliness. (Docket Nos. 26 and 27). In response, on April 25, 2008, Plaintiffs filed their Brief in Opposition to both Defendants’ Motions contending that their Second Amended Complaint was filed late due to problems with this Court’s online filing system. (Docket No. 28 at ¶¶ 22, 23).

On May 1, 2008, the Court conducted a status conference to inquire as to the status of service on named defendant, Residex Corporation, wherein Plaintiffs’ counsel agreed to fax the Court Residex’s counsel’s letter denying that sendee had been made. (Docket No. 29). In addition, the Court questioned whether oral argument was desired by counsel as to the pending motions, to which all counsel answered in the negative. Id. After having reviewed Plaintiffs’ faxed submission concerning service, on May 14, 2008, the Court ordered Plaintiffs to make proper service of process on Residex4 of the Plaintiffs’ Second Amended Complaint. (Docket No. 31).

Subsequently, on May 20, 2008, the Court granted in part and denied in part Dow’s pending Motion as well as denied Southern Mill’s Motion. (Docket Nos. 32 and 33). Specifically, the Court granted Dow’s Motion [168]*168to Dismiss Count IV (misrepresentation) as Plaintiffs did not comply with the Court’s March 5, 2008 Order; i.e., Plaintiffs failed to correctly plead a claim for misrepresentation because they failed to specify whether they were pleading intentional, negligent or innocent misrepresentation. Id. Accordingly, the Court ordered that Count IV of Plaintiffs’ Second Amended Complaint be stricken. Id.

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Bluebook (online)
255 F.R.D. 164, 2009 U.S. Dist. LEXIS 108, 2009 WL 33370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pritchard-v-dow-agro-sciences-pawd-2009.