PHILADELPHIA – A major appliance maker has filed a brief to support the dismissal of malfunction lawsuit against a customer who did not service process documents in a timely manner.
Electrolux Home Products Inc. filed brief March 2 to sustain a decision of the U.S. District Court for the Eastern District of Pennsylvania opposed by the plaintiff, who is challenging through an omnibus motion.
U.S. District Judge Nitza Quinones Alejandro, on the bench of the district court, granted the motion and issued a 12-page ruling Jan. 19 in the lawsuit initiated by Vittorio Ginzburg against defendant Electrolux Home Products.
Ginzburg sued Electrolux on Feb. 6, 2017, alleging damages caused by a fire resulting from a defective clothes dryer, manufactured by the defendant.
U.S. District Judge Nitza Quinones Alejandro
As stated in the dismissal ruling, Ginzburg said "on Feb. 6, 2015, a two-alarm fire originated in the kitchen of his condominium caused by a defective clothes dryer allegedly manufactured by the defendant in 2005." The same document noted "the fire caused extensive damage to the condominium and to the plaintiff’s property."
The same document stated on Feb. 6, 2017, Ginzburg "commenced an action against the defendant by filing a praecipe for a writ of summons in the Philadelphia County Court of Common Pleas," and that, on June 30, 2017, "Ginzburg filed the complaint in that court, with claims of negligence, negligent failure to warn, breach of express and implied warranties, and strict product liability."
Electrolux removed the complaint to the federal court July 28, 2017, filing the motion to dismiss the suit on Aug. 4, 2017. In the request, the defendant said Ginzburg "has failed to timely and properly serve the writ of summons on the defendant," and that the dismissal of the lawsuit "is required" by the Federal Rules of Civil Procedure 12(b)(5), and 12(b)(6).
On Feb. 19, 2018, Ginzburg filed the omnibus motion, with intentions to seek "an amendment of the judgment and/or opinion” entered by the court," as stated in the defendant's brief.
Electrolux also argued that Ginzburg used the motion to achieve a mistaken purpose.
"In reality, the pending matter is nothing more than a mis-characterized motion for reconsideration," the brief said, arguing that no requisites were applied, as Ginzburg "merely asks the court to reconsider facts already presented," and that his motion was filed "31 days after the entry of the Jan. 19, 2018 order," against the legal requirement of 28 days after the judgment is entered.
The plaintiff's motion was filed one month after Alejandro's order.
U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03384-NIQA