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O'Reilly v. BJ's Wholesale Club, Inc.

United States District Court, D. Connecticut

July 17, 2017

JOHN O'REILLY, Plaintiff


          Michael P. Shea, U.S.D.J.

         Plaintiff John O'Reilly (“Plaintiff”) filed a four-count amended complaint (“Compl.”) against Defendant BJ's Wholesale Club, Inc. (“Defendant”). Plaintiff alleges breach of contract (Count One), negligence (Count Two), “class action claims” (Count Three), and violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110 (Count Four). Defendant moves to dismiss, arguing that Plaintiff's amended complaint (i) fails to establish personal jurisdiction, (ii) does not allege the $75, 000 in damages required to satisfy 28 U.S.C. § 1332, (iii) is time-barred under Connecticut's negligence action statute of limitations, and (iv) does not meet the requirements for a class action lawsuit under Rule 23. For the reasons stated below, the Court GRANTS in part and DENIES in part Defendant's motion to dismiss. (ECF No. 25.)

         I. BACKGROUND

         a. Factual Allegations

         Plaintiff alleges that he is a member of Defendant's wholesale club and was shopping at Defendant's North Haven, Connecticut location on August 8, 2014. (Compl. ¶ 1.) While checking-out his purchases, Defendant's cashier dropped a bottle of cleaning solution into Plaintiff's shopping cart, causing the bottle to break and splashing cleaning solution into Plaintiff's eyes and onto his face. (Id.)

         Plaintiff alleges that he sat with Defendant's store manager while the manager typed an accident report and the store manager promised to send Plaintiff a copy. (Id.) On August 23, 2014, Plaintiff returned to Defendant's store and spoke with the same store manager and asked why he had not received a copy of the accident report. (Id.) Defendant's store manager informed Plaintiff that his supervisors had told him that he was not allowed to send a copy of the accident report to Plaintiff. (Id.) Defendant's store manager agreed, upon Plaintiff's request, to send a letter informing Plaintiff of the reason that he could not send the report. (Id.) Plaintiff did not receive any such letter and, when Plaintiff asked why on his next visit to Defendant's North Haven store, the store manager said that he was “just not allowed to.” (Id.)

         Plaintiff alleges that Defendant's general liability claim coordinator initially denied the existence of Plaintiff's accident report and then refused to provide Plaintiff with a copy following his final conversation with the store manager. (Id. ¶ 2.) Plaintiff also alleges that Defendant's general liability claim coordinator requested to talk with Plaintiff on December 19, 2015 about his theory of liability, his injuries, his treatment, and the documentation he has demonstrating his injuries. (Id.)

         Plaintiff alleges that he has experienced repeated incidents of blurred vision caused by the cleaning solution splashed in his eyes at Defendant's store, and that this resulted in numerous falls and injuries. (Id. ¶ 1.) Plaintiff alleges that, in six falls caused by blurred vision, he has injured his right hip, knee, left foot, and back and that his eyesight has deteriorated and his heart condition has been aggravated. (Id.) Plaintiff alleges that one of the falls caused by his damaged vision resulted in cuts and bruises from which he developed cellulitis. (Id.) Plaintiff also alleges that the falls on his right hip have led to X-rays and cortisone shots to reduce pain, and will ultimately require a hip replacement. (Id.)

         Plaintiff also brings class allegations on behalf of himself and other victims of accidents caused by Defendant's employees' negligence. (Id. ¶ 26.) Plaintiff alleges that these accident-victim class members: (i) were required to submit accident reports, (ii) were promised copies of the accident reports they submitted, (iii) were refused access to those accident reports by Defendant, and (iv) were lied to or treated in bad faith by Defendant in pursuit of their claims against Defendant and are all part of Plaintiff's alleged class. (Id.) Plaintiff alleges that there are questions of law and fact common to the class, including whether Defendant breached the terms of class members' membership contract, whether Defendant breached its fiduciary duty to class members, whether Defendant made material misrepresentations to class members, whether Defendant engaged in Connecticut Unfair Trade Practices Act (CUTPA)-violating practices, and whether Defendant is liable to those class members for damages. (Id. ¶ 30(a)-(e).)

         b. Procedural History

         Plaintiff, who the Court will treat as pro se, [1] filed his original complaint on August 9, 2016. (ECF No. 1.) Defendant filed a motion to dismiss on November 9, 2016, arguing (i) lack of subject matter jurisdiction because the complaint did not meet the 28 U.S.C. § 1332 requirement of at least $75, 000 in controversy, (ii) that Plaintiff's negligence allegations were beyond the Connecticut statute of limitations, (iii) lack of personal jurisdiction because of improper service of process, and (iv) that Plaintiff's class action claims did not meet the Rule 23 requirements. (ECF No. 14.) On November 30, 2016, Plaintiff filed his First Amended Complaint (ECF No. 19) and the following day, the Court denied Defendant's motion to dismiss as moot (ECF No. 20), while allowing Defendant to renew its motion, which it did on December 15, 2016. (ECF No. 25.) Plaintiff filed his response in opposition to Defendant's motion to dismiss on January 5, 2016.[2] (ECF No. 32.)

         II. STANDARD

         a. Rule 12(b)(1)

         A “case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011). The “plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Luckkett v. Bure, 290 F.3d 493, 497 (2d. Cir. 2002). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110, ...

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