SCRANTON – Counsel for a South Carolina woman, in a case alleging that a hair dye product she purchased caused her to suffer a chemical burn on the back of her head, has countered a motion to dismiss the related suit by arguing that proper service of the complaint was made and by removing an anonymous defendant.
Elizabeth Knoell of Pinewood, S.C. first filed suit in the Monroe County Court of Common Pleas on April 17 versus L’Oréal USA and Garnier of New York, N.Y., Salon Care Arcadia Beauty Labs, LLC of Reno, Nev. and ABC Corporation.
“On or about Nov. 27, 2019, plaintiff Knoell used previously-purchased Salon Care Professional Volume Creme, Salon Care Professional Quick White Powder Lightener and Gamier Licorice 10 Black hair color to dye her hair at home. After completing the process, she felt some burning on her scalp,” the suit said.
“The burning pain increased. Two days later she found a wound on the back of her head. As a result of the painful wound, plaintiff presented to Lehigh Valley Pocono’s emergency room, where she was diagnosed with a chemical burn.”
The suit added that continued pain caused her to seek additional treatment a few days later at St. Luke’s emergency room, before returning to Lehigh Valley Pocono’s emergency room.
“Plaintiff’s family physician Dr. Spence referred her to dermatologist Dr. Westheim, who diagnosed her 2nd degree burn. As a result of the use of the afore stated products, Knoell has and will continue to have pain and discomfort of her head when performing the most basic tasks of everyday living, brushing her hair, washing her hair, styling her hair, and laying her head on a pillow, in addition to bald spots on her head, which she believes will be permanent,” the suit stated.
L’Oréal USA, Inc. removed the case to the U.S. District Court for the Middle District of Pennsylvania on May 18, and subsequently filed a motion to dismiss on May 24, on the grounds of improper service of process and failure to state claims upon which relief could be granted.
As to the first objection, court records showed that though the complaint was sent to the defendants on Feb. 7, 2022, a return receipt was never provided by the U.S. Post Office, and the plaintiff then waited 14 months to file her complaint.
“In federal courts, original process may be served under either the law of the state in which the district court sits or under the Federal Rules of Civil Procedure. Plaintiff instituted her claim in the Monroe County Court of Common Pleas. Therefore, she was required to effectuate service of process under the Pennsylvania Rules of Civil Procedure. Pennsylvania Rule of Civil Procedure 404 provides that ‘original process shall be served outside the Commonwealth within 90 days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof.’ In the comment to Pennsylvania Rule of Civil Procedure 405 (c) it states that ‘proof of service by mail under Rule 403 shall include a return receipt signed by the defendant,” according to the dismissal motion.
“Here there was no return receipt card signed by L’Oréal or by Garnier, and therefore, the attempted service of the writ was not proper and not in compliance with Pennsylvania Rule of Civil Procedure 405. At no time between the time that the Writ of Summons was issued and it was determined that no return receipt card was received, was the Writ reinstated or reissued. At no time between February 2022 and April 2023, did plaintiff make any effort to re-attempt service on defendants L’Oréal or Garnier.”
Elsewhere, the instant defendants countered that the plaintiff’s claims were not properly pled.
“Plaintiff has failed to specify the statutes allegedly violated by defendants, and defendants are unable to defend themselves against a claim of negligence per se if they are not apprised of the statute or statutes they are alleged to have violated. Additionally, plaintiff alleges in Count II of her complaint that the products (collectively) were defective due to the warnings and instructions. However, plaintiff did not cite to the warnings and instructions in the body of the complaint and did not attach copies of the allegedly defective warnings or instructions to her complaint,” the motion stated.
On May 25, defendant Salon Care Arcadia Beauty Labs, LLC (whose proper name is apparently “Arcadia Beauty Labs, LLC”) also filed a motion to dismiss the case, arguing that it was never properly served with the complaint.
It says that it is a Delaware limited liability corporation with its principal place of business in Denton, Texas – and that the attempted service of original process upon Arcadia, by certified mail in a state and at a location that was not Arcadia’s principal place of business, was not its address within its state of incorporation, and further, was not its registered agent for service in Nevada, was not proper.
“Improper service is not a procedural defect that can simply be cured. In this instance, plaintiff claims to have been injured in 2019. On the eve of the running of the statute of limitations in November 2021, she instituted this lawsuit by filing a praecipe for Writ of Summons. However, plaintiff entirely failed to serve an authorized agent of Arcadia with original process. Rather, plaintiff misnamed Arcadia and attempted service of original process by certified mail in a state and at a location that was not Arcadia’s principal place of business, was not its address within its state of incorporation, and further, was not its registered agent for service in Nevada,” the dismissal motion stated.
“Plaintiff has not attempted further service upon Arcadia and formal service of the April 18, 2023 complaint, like the Writ of Summons, was never effectuated on Arcadia at its principal place of business, address within state of incorporation or registered agent. Therefore, plaintiff’s complaint should be dismissed due to lack of good faith effort to effectuate service on Arcadia in the year and a half since initiating this action, and nearly four years since the alleged incident giving rise to the litigation occurred.”
UPDATE
In a June 7 brief opposing the dismissal motions, plaintiff counsel countered that proper service of the original writ of summons was in fact made and that it was filed within the two-year statute of limitations.
“Knoell filed her lawsuit in the Monroe County Court of Common Pleas on Nov. 29, 2021, by writ of summons and on the following day directed the Monroe County Sheriff’s Office to serve the defendants under Pennsylvania Rule of Civil Procedure 403, relating to service on out-of-state defendants. The Sheriff’s Office verified on the docket that it served L’Oréal USA with the writ of summons by certified mail, a mailing which requires a signature. The Sheriff further confirmed that the certified mail was accepted ‘at the front desk, reception area, or mail room at 1:37 p.m. on Dec. 2, 2021 in New York, N.Y. 10001.’ This service was within the 90 days of filing as required by Pennsylvania Rule of Civil Procedure 403 and the Sheriff represented that service was complete,” the brief stated.
“Since the defendants’ filings, we inquired with U.S. postal officials to see if a scanned version of the green card was saved to their database. Attached to attorney Kidwell’s supporting affidavit is the acknowledgement of service we were able to locate but which was not previously provided to the Sheriff’s Office. It appears to be an electronic signature from a representative of L’Oréal. Note that this was during the COVID-19 pandemic.”
In between the filing of the writ of summons and the complaint, plaintiff counsel represented that it was negotiating a settlement with Garnier, contrary to the company’s earlier assertions.
“In our case, the Sheriff’s Office represented in its return of service that, while it had not received a sign green card back, the USPS verified that the writ was served at the defendant’s N.Y. address. And, although the U.S. Postal Service did not return the green card, its website provides full tracking information on the delivery of the writ, which is publicly available,” the brief continued.
“Finally, attorney Kidwell’s affidavit, which will be filed concurrently with this brief, reflects his office’s communications with Garnier acknowledging the claim. Kidwell’s affidavit also includes the ‘signed’ return receipt from the front desk of defendant’s company reflecting that someone at the place of business accepted the writ. This was recently obtained from the U.S. Postal Service. At a minimum, the issue of the defendants’ knowledge of the lawsuit is an issue of fact which is inappropriate for a Rule 12(b)(6) motion and should be reserved for consideration in a motion for summary judgment after an opportunity for discovery.”
The plaintiff further agreed to amend her complaint to withdraw the claim against defendant ABC Corporation.
For counts of negligence per se, strict products liability and failure to warn, the plaintiff is seeking damages in excess of $50,000, plus interest, costs and in excess of any amount requiring compulsory arbitration.
The plaintiff is represented by Robert J. Kidwell and Gerard J. Geiger of Newman Williams, in Stroudsburg.
The defendants are represented by Dana Valerie Szilier of Bennett Bricklin & Saltzburg in Philadelphia, plus Lee J. Janiczek of Lewis Brisbois Bisgaard & Smith, in Wayne.
U.S. District Court for the Middle District of Pennsylvania case 3:23-cv-00815
Monroe County Court of Common Pleas case 6685-CV-2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com