PITTSBURGH – A Western Pennsylvania man who said he lost his right eye, suffered permanent blindness and other injuries after his eye and face were struck by a “Hold-Zit” strap device, is moving to transfer the case to North Carolina.
Robert Bogle of Loyalhanna first filed suit in the U.S. District Court for the Western District of Pennsylvania on March 8 versus JDS Technologies, Inc. of Oneida, Tenn. and Radiator Specialty Company, Inc. of Indian Trail, N.C.
“JDS and RSC, acting together and in concert, sold the ‘Hold-Zit’ strap to the general public and placed it into the stream of commerce. The defendants expressly warranted and guaranteed the ‘HoldZit’ strip for life. Bogle came into possession of one of defendants’ ‘Hold-Zit’ straps, which he used,” the suit stated.
“On March 22, 2019, the plaintiff, Bogle, suffered traumatic injuries while using the defendants’ Hold-Zit strap because the defendant’s strap unexpectedly and traumatically failed and broke.”
These injuries occurred when the defendants’ strap broke, during the foreseeable, regular, common, and accepted use of the strap by plaintiff, the suit said.
“Upon failing and breaking, the defendants’ strap whipped backwards and struck the plaintiff’s eye and face at a high velocity causing severe and permanent injuries to his face and right eye. These injuries include, and are not limited to, the following: (a) The loss of his right eyeball; (b) Permanent visual loss and blindness; (c) Facial and eye orbit fractures; (d) A concussion; and (e) Other severe traumatic damage to his face and appearance,” per the suit.
“As a further result of the traumatic failure of defendants’ Hold-Zit strap, the plaintiff suffered major, severe, continuing and permanent depression and other physical, emotional, and mental injuries, harm, and damages, all due to the unexpected and proximate failure of the defendants’ defective and unreasonably dangerous product.”
RSC filed a motion to dismiss the case on May 13, arguing that the plaintiff did not levy personal jurisdiction upon it in this case and on the counts themselves, is entitled to a complete dismissal.
“Indeed, plaintiff’s jurisdictional averments are entirely conclusory and boilerplate, falling far short of “demonstrating the facts that establish personal jurisdiction. The Court need not accept these boilerplate legal conclusions as true,” the motion to dismiss stated.
“When stripped of non-conclusory allegations, there is nothing in the complaint demonstrating that plaintiff’s ‘suit arises out of or relates to’ any heretofore unidentified activities or contacts RSC may have had or conducted in Pennsylvania. Accordingly, the complaint fails to demonstrate that the Court has specific jurisdiction over RSC.”
Moreover, the defendant said there can be no argument that RSC – a North Carolina corporation with its principal place of business in North Carolina – is “at home” in this Commonwealth, so “general jurisdiction also is a non-starter.”
“Plaintiff pursues five substantive claims against RSC, each premised on an unidentified defect. But none is viable. Taking them in order:
• Strict Liability (Count VI): Plaintiff’s strict liability claim fails to meet federal pleading standards;
• Express Warranty (Count VII): Plaintiff’s express warranty claim fails because he is not a purchaser and because it fails to meet federal pleading standards;
• Implied Warranty of Merchantability (Count VIII): Plaintiff’s express warranty claim fails because he is not a purchaser and because it fails to meet federal pleading standards;
• Implied Warranty of Fitness for a Particular Purpose (Count IX): Plaintiff’s implied warranty of fitness for a particular purpose claim fails because he is not a purchaser, because it fails to meet federal pleading standards, and regardless, because he does not claim to have used the subject product for a non-ordinary purpose;
• Unfair Trade Practices (Count X): Plaintiff’s UTPCPL claim fails because plaintiff did not purchase the Subject Product and because he does not plead the necessary elements,” the motion added.
UPDATE
After the case survived a motion to dismiss in July, the case had an amended complaint filed on Sept. 3, which addressed prior jurisdictional shortcomings contained in its initial version.
The same day, the plaintiff filed a motion to transfer the case to federal court in North Carolina.
“The plaintiff, Robert Bogle, per and in accordance with the order of this Honorable Court dated Aug. 6, hereby moves that this Court order the transfer of this case to the U.S. District Court for the Western District of North Carolina located in Charlotte, N.C., a Court which has jurisdiction over both defendants,” the motion said.
“The defendant, Radiator Specialty Company, is a business corporation with its principal place of business at 600 Radiator Road, Building 8, Indian Trail, N.C. 28079, a locality just adjacent to Charlotte, North Carolina and within the jurisdiction of the Court to which this transfer is requested; and the co-defendant, JDS Technologies, Inc. is a business corporation with its principal place of business at 1299 Airport Road, Oneida, Tenn. 37841, which at all material times did business with Radiator Specialty Company, and manufactured and shipped the product, the strap which failed giving rise to this case, to RSC at RSC’s principal place of business, such that JDS is likewise within the jurisdiction of the Court to which this transferred is requested.”
For multiple counts of strict liability, breach of express warranties, breach of the implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose and violation of the Unfair Trade Practices and Consumer Protection Law, the plaintiff is seeking damages, jointly and severally in a sum to be determined by this Honorable Court, plus such interest, costs, attorney’s fees and other relief as this Honorable Court shall deem just and proper.
The plaintiff is represented by David A. Colecchia of Law Care in Greensburg, and Howard S. Ross of Ross Law Offices, in Sharon, Mass.
The defendants are represented by Susan D. Garrard of William J. Ferren & Associates and Clem C. Trischler of Pietragallo Bosick & Gordon, both in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00319
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com