United States District Court, S.D. New York
OPINION & ORDER
M. WOOD United States District Judge
Cristina Ulloa, also known as Christina Mendoza, brings this
action asserting claims for negligence and strict liability
due to product design defect and failure to warn, against
Takata Corporation and TK Holdings, Inc. (collectively
"Takata") and Nissan Motor Company, Ltd. and Nissan
North America, Inc. (collectively "Nissan").
Plaintiff alleges that a faulty airbag caused Plaintiffs
injuries in a June 29, 2013 car accident. Defendants move to
dismiss under Rule 12(b)(6) or, in the alternative, seek a
more definite statement of Plaintiff s claims under Rule
12(e). For the reasons stated below, Defendants' 12(b)
motion is GRANTED in part and DENIED in part, and
Defendants' 12(e) motion is GRANTED.
29, 2013, Plaintiff was in the passenger seat of a car when
it was involved in an accident. Compl. ¶ 17, ECF No.
1-1. As a result of the accident, Plaintiff became
"sick, sore, lame and disabled" and suffered
"great mental and physical pain, mental anguish and
bodily injuries." Id. ¶ 29. These injuries
were caused by "the defective inflator incorporated into
the airbag safety system." Id. ¶ 8. Takata
manufactured the defective passenger-side airbag,
id. ¶ 4; Nissan manufactured the car,
id. ¶¶ 5-6. The complaint states six
causes of action: (1) negligence, gross negligence, and
willful and wanton conduct regarding design defect; (2)
strict liability in tort; (3) failure to warn; (4) breach of
implied warranties; (5) damages; and (6) punitive damages.
complaint includes imprecise or contradictory statements on
two essential facts. First, the complaint is inconsistent
about whether the vehicle involved in the accident has been
the subject of a recall. Compare Id. ¶ 7
("[Nissan has] recalled millions of Nissan vehicles for
having faulty Takata airbags, including the [v]ehicle at
issue in this complaint."), with Id. ¶ 8
("[T]here are hundreds if not thousands of vehicles,
potentially containing defective Takata airbag inflators,
still remaining on the roadways today that Nissan has
affirmatively and knowingly failed to recall, including but
not limited to the [v]ehicle at issue in the
the complaint is ambiguous about whether the airbag failed to
deploy or deployed with excessive force. Compare Id.
¶ 8 (airbag "failed to properly deploy"),
and Id. ¶ 11 (defects "prevented a normal,
safe and expected airbag deployment"), with Id.
¶ 39(d) (airbag had "excessively energetic
propellant, deploying with excessive force and/or . ..
expelling shrapnel"), and Id. ¶ 56
(alleging that Defendants failed to inform users of the
danger "created by the excessively volatile inflator in
the passenger side airbag system or explosive nature of the
inflator that could explode with violent and excessively loud
force"). Although the complaint alleges that the airbag
deployed explosively, Plaintiffs counsel told Defendants'
counsel that "[t]he air bags in the subject vehicle
never deployed." Ramsey Aff. Ex. C, ECF No. 14.
the complaint contains a number of paragraphs where
typographical errors render the statement ambiguous or
unintelligible. See Id. ¶ 6 ("Nissan North
America, Inc. ... is and was a California and Mexico
Containing airbags manufactured by the Takata
Defendants."); id. ¶ 8 ("[T]he Nissan
Defendants are directly responsible for sabra's injuries
order to survive a Rule 12(b)(6) motion to dismiss, a
plaintiff must plead sufficient factual allegations "to
state a claim to relief that is plausible on its face."
Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim is facially plausible "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in favor of
the non-moving party. See Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 78 (2d Cir. 2015).
12(e) allows a party to "move for a more definite
statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response." Fed.R.Civ.P.
12(e). A 12(e) motion applies only in the limited
circumstance where a pleading is "sufficiently
intelligible for the district court to make out one or more
potentially viable legal theories . . . sufficient to survive
a Rule 12(b)(6) motion .. . [but] the pleading [is] also so
vague or ambiguous that the opposing party cannot respond to
it. . . with a pleading that can be interposed in good faith
or without prejudice to himself." Pelman ex rel.
Pelman v. McDonald's Corp., 396 F.Supp.2d 439, 443
(S.D.N.Y. 2005) (quoting 5C Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1376
(3d ed. 2004)).
their 12(b)(6) motion, Defendants argue that the inconsistent
allegations render the complaint implausible, that Plaintiffs
breach of warranty claim is time-barred, and that the
separate cause of action for punitive damages should be
dismissed. Defs. Mem. 8-10, ECF No. 15. Plaintiff states that
she does not oppose Defendants' motion to dismiss as to
the breach of warranty and punitive damages causes of action.
PI. Opp. 10, ECF No. 22. "[W]hen a plaintiff fails to
address a defendant's arguments on a motion to dismiss a
claim, the claim is deemed abandoned, and dismissal is
warranted on that ground alone." Volunteer Fire Ass
'n of Tappan, Inc. v. County of Rockland, No. 09
Civ. 4622, 2010 WL 4968247, at *7 (S.D.N.Y. Nov. 24, 2010).
Accordingly, Defendants' motion to dismiss Plaintiffs
fourth and sixth causes of action is GRANTED, and the claims
are dismissed with prejudice. Plaintiff may, however, seek
punitive damages if she pleads and proves facts sufficient to
support such a remedy.
the complaint pleads contradictory facts, the Court finds the
complaint sufficiently intelligible to potentially state
viable legal theories. "The New York Court of Appeals
has . . . made it clear that 'the [design defect]
standards set forth in [Voss v. Black & Decker
Manufacturing Co., 450 N.E.2d 204 (N.Y. 1983), ] apply
to both' strict liability and negligence claims."
Duval v. Delta Int'l Mach. Corp., No. 13 Civ.
4270, 2015 WL 4522911, at *3 (S.D.N.Y. July 27, 2015) (first
alteration in original) (quoting Adams v. Genie Indus.,
Inc., 14 N.Y.3d 535, 543 (2010)). To state a design
defect claim under either a negligence or strict liability
standard, a plaintiff must allege that "(1) the product
as designed posed a substantial likelihood of harm; (2) it
was feasible to design the product in a safer manner; and (3)
the defective design was a substantial factor in causing
plaintiffs injury." Id. (quoting Colon ex
rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 83
(S.D.N.Y. 2001)). A failure to warn claim focuses on the
"obviousness of risk from actual use of product, [the]
knowledge of the particular user, and proximate cause."
Colon, 199 F.Supp.2d at 85. Defendants do not
specifically argue that the complaint fails to state a claim
for these three causes of action. Despite the complaint's
contradictions, Plaintiff has alleged facts that, taken as
true, may state viable claims: the airbag system was
"unreasonably dangerous as to its design, " Compl.
¶ 44; Defendants failed to take reasonable steps to
design, manufacture, test, and assemble the dangerous
airbags, id. ¶ 38-39; Defendants were
"aware of feasible alternative designs which would have
minimized or eliminated altogether the risk of injury, "
id. ¶ 48; Plaintiff suffered injuries as a
direct result of the design defect, id. ¶ 51;
and Defendants would have no reason to believe that users
would appreciate the potential danger, id. ¶
56. That said, the inconsistencies and typographical errors
are sufficiently ambiguous to warrant a more definite
statement. Accordingly, Defendants' motion to dismiss
Plaintiffs first, second, and third causes of action is
DENIED without prejudice, and Defendants' motion for a
more definite statement is GRANTED.
justifying the complaint's inconsistencies, Plaintiff
misreads Rule 8(d) to allow allegations of contradictory
facts even though Rule 8 authorizes only allegations
of contradictory claims. See PL Opp. 6 (stating
"the facts a plaintiff alleges in the complaint may turn
out to be self-serving and untrue"). "[A] pleader
may assert contradictory statements of fact only when
legitimately in doubt about the facts in question."
2004 Stuart Moldaw Trust v. XE L.I.F.E., LLC, 642
F.Supp.2d 226, 240 (S.D.N.Y. 2009) (quoting Am. Int'l
Adjustment Co. v. Galvin,86 F.3d 1455, 1461 (7th Cir.
1996)). Whether the vehicle at issue was the subject of the
recall should be known to Plaintiffs counsel. "[W]hile
Rule 8(d)(2) permits parties to plead inconsistent factual
allegations, an alternative pleading is nonetheless subject
to the terms of Rule 11." Id. Rule 11 states
that "[b]y presenting to the court a pleading ... an
attorney . . . certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances . . . the factual
contentions have evidentiary support or, if specifically so
identified, will ...