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Burg v. Primal Vantage Company, Inc.

United States District Court, W.D. New York

February 4, 2014

DEAN BURG, Plaintiff,


HUGH B. SCOTT, Magistrate Judge.


Chief Judge Skretny referred this case to this Court under 28 U.S.C. § 636(b). Pending before the Court is a motion (Dkt. No. 8) by plaintiff Dean Burg ("Burg") to remand this case to New York State Supreme Court, Erie County. Burg began this case by filing a summons and complaint in state court on October 8, 2013; the complaint contained five causes of action related to products liability. Defendants Primal Vantage Company, Inc., Dick's Sporting Goods, Inc., and Dick's Sporting Goods ("Primal" collectively) filed a notice of removal (Dkt. No. 1) on November 14, 2013, asserting the diversity of citizenship and amount in controversy necessary for diversity jurisdiction under 28 U.S.C. § 1332. The pending motion followed.

Upon referral of the case and the pending motion, the Court issued a schedule (Dkt. No. 9) that required responding papers from Primal by December 23, 2013, required reply papers from Burg by January 13, 2014, and set oral argument for January 22, 2014. Primal, represented by two law firms, received electronic notice of that schedule through each law firm of record. The deadline for responding papers came and went without any filing from Primal. Accordingly, on January 16, 2014 the Court canceled oral argument and deemed the motion submitted. (Dkt. No. 12.) Through the time of this writing, the Court has not received any communication from the parties through filings on the docket or informally through contact with chambers.

Although, as explained below, the lack of opposition to the motion is relevant in some respects, it does not mean automatic granting of the motion. The motion is dispositive in nature, and the Court had to consider the underlying merits anyway. See Williams v. Beemiller, Inc., 527 F.3d 259, 266 (2d Cir. 2008) (finding a motion to remand dispositive and "indistinguishable from a motion to dismiss the action from federal court based on a lack of subject matter jurisdiction for the purpose of [28 U.S.C.] § 636(b)(1)(A)"); cf. McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000) (requiring a Rule 12(b)(6) motion to be assessed on the merits even if unopposed); see also Archilla v. Davila, No. EP-07-CA-0038-FM, 2007 WL 1876537, at *1 n.1 (W.D. Tex. June 26, 2007) ("Although Plaintiff has not responded to Defendant's Motion, the Court will consider the Motion on its merits under Federal Rule of Civil Procedure 12(b)(1) rather than automatically granting the Motion as unopposed.") (citations omitted). Now having considered the merits, the Court respectfully recommends granting the motion.


This case concerns allegations that Primal designed and manufactured a defective tree stand that injured Burg while hunting. According to the record, Burg bought a Primal Vantage 2007 Ladder Tree Stand in September 2007 at Dick's Sporting Goods. Burg did not keep the instructions for the tree stand, and his history of use for the first two years after buying it are unknown. Nonetheless, Burg alleges that he went to his brother's property in Lockport, New York on October 8, 2010 to hunt deer. At the time, Burg was 47 years old and stood six feet tall, 220 pounds. Burg was assembling the stand at a tree while standing on the ladder assembly that came with the stand. An unspecified metal part of the ladder bent and broke while Burg was standing on it, causing him to fall about 10 feet to the ground.

Medical records accompanying the pending motion document the progress that Burg made in recovering from his injuries. An examination on October 11, 2010-just a few days after the alleged accident-led to a diagnosis of a nondisplaced right proximal fibular fracture just below the fibular head. The examining medical professional described the fracture as a "stable injury" that he would treat conservatively. (Dkt. No. 8-2 at 2.) The treatment plan consisted of using a walker boot, anti-inflammatory medication, and ice. A follow-up examination on November 2, 2010 revealed that Burg was "feeling much better" with "much less discomfort." ( Id. at 3.) The reviewing physician agreed with continuing conservative treatment and following up later. At a follow-up examination on December 2, 2010, Burg again reported feeling better and having less discomfort. ( Id. at 4.) By that time, the healing at Burg's fibular neck was visible by x-ray, and Burg had full range of motion at the knee. The reviewing physician agreed with a final check in six weeks.

Before resorting to litigation, Burg's counsel sent Primal's counsel a letter dated March 28, 2013 "for the purpose of exploring the settlement of my client's claims against your client without the significant time and expense of protracted litigation." (Dkt. No. 8-3 at 2.) The settlement demand letter recited the events of the alleged accident and Burg's likely theories of liability. The letter also summarized the three evaluations noted above but then included the following language under headings titled "Limitations" and "Conclusion":

Mr. Burg's daily activities were extremely limited as a result of his injuries sustained in this fall. The limitations in his right knee and leg made daily tasks challenging. Normal customary daily activities were performed on a limited basis but with pain as are recreational and/or social activities. As the records indicate, Dr. Parentis took Mr. Burg out of work for the first three (3) weeks following this accident where he used some sick and vacation time to supplement his income.
The injuries sustained by Dean Burg as a result of the fall on October 8, 2010 were severe and he continues to experience pain in his right knee and right leg today. I think you would agree that overall Mr. Burg had a very good recovery and was able to have limited medical treatment for this fracture. However, he still underwent significant pain and treatment as a result of the tree stand collapsing. Based upon the above information and the attached documentation, my client's demand for settlement purposes only at this time is 125, 000.00.

( Id. at 5.) Primal's counsel never responded to Burg's settlement demand letter.

Burg began litigating when he filed a summons and complaint in state court on October 8, 2013. The complaint (Dkt. No. 1-1) states the basic facts of the accident from three years earlier and contains five causes of action for negligence, failure to warn, strict liability, and breach of implied warranties. Contrary to the information that seems to constitute his medical records, Burg included the following language in his complaint:

1. Burg "suffered severe and serious injuries and was rendered sick, sore, lame and disabled and so remains, having suffered, among other things: severe right leg and knee pain; laceration on left side of forehead; closed fracture of right upper end of fibula; mental anguish; pain and suffering. All of the aforementioned injuries are debilitating and disabling in nature and are of a nature which the Plaintiff, DEAN BURG, has suffered and will continue to suffer from for the remainder of his life. All of these injuries have resulted in grievous pain and ...

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