SCRANTON – Counsel for a South Carolina who claimed that using a hair dye product sold by a Nevada beauty company caused her to suffer a chemical burn on the back of her head, argues that it effectuated proper service of the plaintiff’s complaint.
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
Plaintiff counsel filed a response brief on June 8, arguing that proper service of original process was made to Arcadia in Reno, Nevada – given that the company conducted regular business operations at that address and the individual who accepted service held a supervisory role at the facility.
“Knoell properly served the defendants with the Writ of Summons. Since service was made prior to removal, the Pennsylvania Rules of Civil Procedure apply to service on the ‘foreign’ defendants. Ms. Tracey White, who accepted service of the summons, holds herself out as the Distribution Secretary at Sally Beauty Company and internet searches reflect that Arcadia does regular business at the Reno address where the writ was served. Service was accepted not by a low-level employee of the company but by an officer,” the brief stated.
“At a minimum, the issue of the defendants’ knowledge of the lawsuit, Arcadia’s business activity in Reno, and White’s role with the company, are issues of fact which are inappropriate for a Rule 12(b)(6) motion. It requires the development of a factual record. As reflected in Attorney Kidwell’s second affidavit, there are disputed issues of fact regarding Arcadia’s activities at the Reno address. The Rules of Civil Procedure do not limit service on a corporation only at its principal place of business. Rule 424(2) says that anyone in charge at a “regular place of business or activity of the corporation” may be served to satisfy the rule. Tracey White’s role and Arcadia’s activities at the Reno address must be explored by depositions before a ruling on defendant’s motion would be appropriate. We believe that such discovery will reveal that service was proper. The plaintiff asks the Court to deny the defendant’s motion to dismiss and direct it to file an answer to the complaint.”
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