United States District Court, W.D. Missouri, Western Division
PAUL F. SCHWARZ, Personal Representative Of the Estate of Paul A. Schwarz, Plaintiff,
FRONTERA PRODUCE LTD., et al., Defendants.
FERNANDO J. GAITAN, Jr., District Judge.
Pending before the Court are (1) Primus Group Inc.'s Amended Motion to Dismiss Plaintiff's Fourth Amended Complaint (Doc. No. 141); and (2) Primus Group Inc.'s Motion for Leave to File Reply on Motion to Dismiss One Day Out of Time and to Exceed Page Limit (Doc. No. 148). As an initial matter, the motion for extension of time (Doc. No. 148) will be GRANTED, and the Court will treat defendant's reply suggestions (Doc. No. 149) as properly filed.
Plaintiff is the son of decedent Paul A. Schwarz. Plaintiff alleges that decedent contracted a Listeria -related illness following the consumption of a cantaloupe, and later died. Plaintiff alleges that the cantaloupe was produced by Jensen Farms, and distributed and sold by Frontera Produce, Ltd. ("Frontera"). Plaintiff further alleges that defendant Primus Group, Inc., dba Primus Labs ("Primus") is a California company that provides auditing services to agricultural firms, and Bio Food Safety is a Texas company that also provides agricultural auditing services. Plaintiff asserts that Bio Food Safety acted as a subcontractor for Primus and conducted an audit of Jensen Farms approximately six weeks before the FDA conducted an inspection of the Jensen Farms facility and found three of the five strains of Listeria monocytogenes associated with the Listeria outbreak. Plaintiff alleges that, had the auditor properly detected certain failures in the facility, Jensen Farms would not have received a passing score on the audit and the contaminated cantaloupe would not have been distributed.
Plaintiff sets forth the following claims in his lawsuit: (1) Cause of Action for Wrongful Death: Strict Liability against Defendant Frontera (Doc. No. 135, p. 23); (2) Cause of Action for Wrongful Death: Negligence Against Defendant Frontera (Doc. No. 135, p. 24); (3) Cause of Action for Wrongful Death: Breach of Warranty against Defendant Frontera (Doc. No. 135, p. 27); and (4) Cause of Action for Wrongful Death: Negligence against Primus (Doc. No. 135, p. 28).
II. Primus's Motion to Dismiss (Doc. No. 141)
Primus argues that the allegations in Plaintiff's Fourth Amended Complaint (Doc. No. 135) do not demonstrate that it owed a duty to Plaintiff, and therefore no liability can be imposed on defendant Primus for the death of Paul A. Schwarz. Primus further argues that the Amended Complaint does not contain sufficient facts in support of his theory that there is a causal link between the audit and decedent's injuries.
Federal Rule of Civil Procedure 8 requires that a complaint present "a short and plain statement of the claim showing that the pleader is entitled to relief." In order to meet the standard, and survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Twombly and Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2)." Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010). To meet the plausibility standard, "[a] Plaintiff need only allege facts that permit a reasonable inference that the defendant is liable, even if the complaint strikes a savvy judge that actual proof of the facts alleged is improbable' and recovery very remote and unlikely.'" Id. at 819 (quoting Braden v. Wal-Mart Stores, 588 F.3d 585, 594 (8th Cir. 2009)).
Defendant argues primarily that it owed no duty to plaintiff. The "touchstone for the creation of a duty" under Missouri law is foreseeability. L.A.C., ex rel D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo. 2002). A duty may arise by operation of a statute, by obligation assumed in a contract, or through the common law. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. Banc 1976). Under the common law, "[a] duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury." Richardson v. QuikTrip Corp., 81 S.W.3d 54, 59 (Mo. App. 2002) (citing Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988)). "[P]laintiff need not show that the very injury resulting from defendant's negligence was foreseeable, but merely that a reasonable person could have foreseen that injuries of the type suffered would be likely to occur under the circumstances." Smith v. Archbishop of St. Louis, 632 S.W.2d 516, 521 (Mo. App. 1982). "When a defendant undertakes to do something that the defendant knew or should have foreseen would harm others or increase the risk of harm to others, the defendant has a duty to exercise reasonable care in the undertaking." Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 70 (Mo. App. 2003).
A party entering into a contract may place himself in such a relation toward third persons as to impose upon him an obligation to act in such a way that the third persons will not be damaged. Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18, 21 (Mo. 1953). Missouri case law is consistent with the Restatement (Second) of Torts, Section 324A which reads:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to ...