WILLIAMSON v. WALMART STORES INC et al

Filing 50

ORDER granting in part and denying in part 36 Motion to Dismiss; granting in part and denying in part 37 Motion to Dismiss ; granting in part and denying in part 38 Motion to Dismiss. The parties shall submit a joint proposed scheduling order in compliance with the Court's Rules 16/26 Order 25 by April 30, 2015. Ordered by U.S. District Judge CLAY D LAND on 04/08/2015. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
TORRIE A. WILLIAMSON,

*

Plaintiff,

*

vs.

*

WALMART STORES, INC.; WALMART
*
STORES EAST, L.P.; KINDERHOOK
INDUSTRIES II, L.P.; KINDERHOOK *
INDUSTRIES, LLC; KINDERHOOK
CAPITAL FUND II, L.P.; and HOME *
DEPOT USA, INC.
*
Defendants.
*

CASE NO. 3:14-CV-97 (CDL)

O R D E R
Plaintiff Torrie A. Williamson was seriously injured when a
plastic

gas

Williamson

container
asserts

she

various

was

using

product

near

a

liability

fire

exploded.

claims

against

Defendants Walmart Stores, Inc. and Walmart Stores East, L.P.
(collectively, “Wal-Mart”); Defendants Kinderhook Industries II,
L.P., Kinderhook Industries, LLC, and Kinderhook Capital Fund
II, L.P. (collectively, “Kinderhook Defendants”); and Defendant
Home Depot USA, Inc.

Presently pending before the Court are

Defendants’ motions to dismiss the First Amended Complaint.

For

the reasons set forth below, all three motions (ECF Nos. 36, 37,
& 38) are granted in part and denied in part.

MOTION TO DISMISS STANDARD
“To survive a

motion to dismiss” under Federal Rule of

Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

The complaint must include sufficient factual

allegations “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

In other words, the factual

allegations must “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims.

Id. at 556.

“Rule

well-pleaded

12(b)(6)

does

not

permit

dismissal

of

a

complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable.’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).
Williamson

contends

that

the

Court

should

not

consider

several arguments presented in Defendants’ current motions to
dismiss.

After Defendants filed motions to dismiss Williamson’s

original Complaint, Williamson filed a First Amended Complaint,
and

the

Court

found

the

motions

to

dismiss

Complaint moot in light of the amendment.

the

original

Citing Federal Rule

of Civil Procedure 12(g)(2), Williamson argues that the Court
should not consider any defense that Defendants did not make in

2

their

motions

defenses

could

to

dismiss

have

been

her
raised

original
at

that

Complaint
time.

if
Under

those
Rule

12(g)(2), a party that makes a motion under Rule 12 “must not
make another motion . . . raising a defense or objection that
was available to the party but omitted from its earlier motion”
unless another motion is permitted under Rule 12(h)(2) or (3).
Fed. R. Civ. P. 12(g)(2).

Although Rule 12(h)(1) provides that

certain defenses are waived if they are not raised in an initial
answer or motion to dismiss, Rule 12(h)(2) permits a motion to
dismiss for failure to state a claim upon which relief may be
granted to be raised “by a motion under Rule 12(c) . . . or at
trial.”

Fed.

R.

Civ.

P.

12(h)(2)(B)-(C).

The

only

“new”

defenses here are additional arguments that Williamson’s First
Amended Complaint fails to state a claim.

Instead of requiring

the parties to litigate a Rule 12(c) motion after the pleadings
are closed, the Court will decide the issues now; there is no
reason to delay the inevitable on Williamson’s claims that must
be dismissed for failure to state a claim.
FACTUAL ALLEGATIONS
Williamson alleges the following facts in support of her
claims.

The Court must accept these allegations as true for

purposes of the pending motions to dismiss.
On December 2, 2012, Williamson was using a plastic gas
container near a fire when the gas container exploded and caused

3

her serious injuries.

The container was manufactured by Blitz

USA, Inc., a corporation indirectly owned by Kinderhook Capital
Fund II, L.P. that is now defunct and bankrupt.

Williamson

alleges that Wal-Mart and the Kinderhook Defendants controlled
the

design

of

the

container.

Williamson

believes

that

the

container was purchased at a Georgia Wal-Mart, Home Depot, or
Ace Hardware.

1st Am. Compl. ¶ 17, ECF No. 32.

She alleges

that

“likely”

caused

Wal-Mart

injuries.
Kinderhook

sold

the

container

Id. ¶ 26; accord id. ¶ 46.
Defendants,

“Wal-Mart,

that

her

She also alleges that the
Home

Depot

and/or

[Ace

Hardware] distributed or sold the Blitz gas container at issue
or sold the market share of such containers in the state of
Georgia.”

Id.

¶¶ 89,

153,

161.

“In

the

alternative,”

Williamson alleges that “the gas container at issue in this
lawsuit was purchased at Home Depot.” Id. ¶¶ 154, 161.

Based on

these allegations, Plaintiff asserts the following claims:
1. Design defect and failure to warn claims against Wal-Mart
(Counts 1 and 2) and the Kinderhook Defendants (Counts 3, 4,
and 6) as manufacturers under strict liability and negligence
theories.
2. Failure to retrofit/recall
(Counts 2, 4, and 8).

claims

against

all

Defendants

3. Claim against all Defendants under the Consumer Product Safety
Act, 15 U.S.C. § 2051 et seq. (Count 5)
4. Failure to warn claims against Wal-Mart and Home Depot as
product sellers (Count 7).

4

DISCUSSION
I.

Manufacturer Liability Claims against Wal-Mart
Williamson asserts design defect and failure to warn claims

against Wal-Mart under strict liability and negligence theories
based

on

Wal-Mart’s

container.

alleged

role

as

a

1st Am. Compl. ¶¶ 44-85.

designer

of

the

gas

Wal-Mart does not argue

that Williamson’s First Amended Complaint completely fails to
state a claim against Wal-Mart under these theories.

Rather,

Wal-Mart

Amended

objects

to

three

paragraphs

in

the

First

Complaint, arguing that Williamson is trying to assert claims in
addition to her design defect and failure to warn claims and
that

Williamson

particularity.

did

not

At

the

plead

these

hearing

on

claims
the

with

motion

to

sufficient
dismiss,

Williamson conceded that she is not asserting any manufacturer
liability claims against Wal-Mart other than her design defect
and failure to warn claims.
Complaint

could

be

construed

To the extent her First Amended
to

assert

other

claims,

those

claims are dismissed.
II.

Manufacturer
Defendants

Liability

Claims

against

the

Kinderhook

Williamson asserts design defect and failure to warn claims
against

the

Kinderhook

Defendants

under

strict

liability

and

negligence theories based on their alleged role as designers of
the gas container.

The Kinderhook Defendants contend that they

5

are not subject to personal jurisdiction in Georgia because they
are Delaware entities with a primary place of business in New
York.

Williamson

argues

jurisdiction because

that

they

are

subject

to

personal

the Kinderhook Defendants controlled the

design of the gas container, which was sold in Georgia, and
because Kinderhook Defendants owned and controlled Blitz USA,
which manufactured the gas container.1
For the Court to exercise personal jurisdiction over the
Kinderhook Defendants, jurisdiction must be appropriate under
Georgia’s long-arm statute and under the Due Process Clause of
the

Fourteenth

Amendment

to

the

United

States

Constitution.

Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593
F.3d

1249,

1257-58

(11th

Cir.

2010).

Georgia

courts

may

exercise personal jurisdiction over nonresident defendants who,
“in person or through an agent” transact “any business within”
Georgia or who commit “a tortious injury in [Georgia] caused by
an act or omission outside [Georgia],” but only if the defendant
“regularly does or solicits business, or engages in any other
persistent

course

of

conduct,

or

1

derives

substantial

revenue

The Kinderhook Defendants do not dispute that in 2007, Kinderhook
Capital Fund II, L.P. acquired a 75.2% interest in a limited liability
company that indirectly owned Blitz USA through a series of whollyowned subsidiaries.
The Kinderhook Defendants also do not dispute
that Kinderhook Industries, LLC manages Kinderhook Industries II,
L.P., which in turn manages Kinderhook Capital Fund II, L.P.
Plaintiff contends that after the acquisition of Blitz USA, the
Kinderhook Defendants embarked on a mission to drain Blitz USA’s
assets and shield it from liability for its defective products.
1st
Am. Compl. ¶¶ 32-34, 37-39

6

from goods used or consumed or services rendered” in Georgia.
O.C.G.A. § 9-10-91(1), (3).
Georgia

courts

may

And under the Due Process Clause,

exercise

personal

jurisdiction

over

defendants “who have established certain minimum contacts with
[Georgia] such that the maintenance of the suit does not offend
traditional
Diamond

notions

Crystal,

of

593

fair

F.3d

at

play
1267

and

substantial

(internal

justice.”

quotation

marks

omitted).
The Kinderhook Defendants do not appear to dispute that
Blitz USA, which manufactured the gas container at issue in this
case, transacted business in Georgia and had sufficient contacts
with

Georgia

appropriate.
alleged

to

make

personal

jurisdiction

over

Blitz

USA

The question for the Court is whether Williamson

enough

to

show

that

personal

jurisdiction

over

the

Kinderhook Defendants is appropriate based on their own alleged
conduct or their alleged relationships with Blitz USA.
Williamson alleges that the Kinderhook Defendants, knowing
that the gas containers would be sold in Georgia,

“actually

became the designers of Blitz’s gas cans, having the power to
control and actually using that power to make design changes,
schedule

changes,

require

reports

regarding

design

changes,

review design prototypes and actually determine when a newly
designed product was ready for sale.”

1st Am. Compl. ¶ 25.

Williamson also alleges that the Kinderhook Defendants “wholly

7

controlled” the activities of Blitz USA and that “Kinderhook
made the decision . . . to omit a flame arrestor from the design
of

Blitz

gas

[Williamson].”
by

cans

recognizes

to
that

supporting

the

type

which

severely

injured

Id. ¶ 41 (“Blitz was a fake company controlled

Kinderhook.”).

declaration

of

The

dispute
a

Kinderhook
these

plaintiff

jurisdiction

Defendants

allegations,

generally

if

“the

must

and

submitted
the

produce

defendant

a

Court

evidence

challenges

jurisdiction by submitting affidavit evidence in support of its
position” that personal jurisdiction is inappropriate.

Diamond

Crystal, 593 F.3d at 1257 (internal quotation marks omitted).
But no jurisdictional discovery has taken place in this case,
and the Court declines to dismiss Williamson’s claims against
the Kinderhook Defendants based solely on the affidavit.
question

for

Williamson’s

the
First

Court

at

Amended

this

stage

Complaint

boils
alleges

down

to

enough

So the
whether
for

the

Court to find that discovery is warranted on her claim that the
Kinderhook Defendants actually designed the gas container and
her claim that Blitz USA served as the mere alter ego of the
Kinderhook Defendants.
A.

Claims Based on Kinderhook Defendants’ Alleged Conduct

Under Georgia law, product manufacturers may be liable to
consumers who are injured “because the property when sold by the
manufacturer was not merchantable and reasonably suited to the

8

use intended, and its condition when sold is the proximate cause
of

the

injury

Kinderhook
enough

sustained.”

Defendants

facts

to

O.C.G.A. §

contend

show

that

that

51-1-11(b)(1).

Williamson

they

“manufacturers” under Georgia law.

did

should

not

be

The
allege

considered

But Williamson asserts that

the Kinderhook Defendants designed the gas container and made
the critical decision to omit a flame arrestor.
in

a

case

cited

manufacturer

or

by

the

designer

Kinderhook
of

[a]

As acknowledged

Defendants,
product”

“an

is

actual

“deemed

a

manufacturer for the purposes of strict liability” under Georgia
law.

Morgan v. Mar-Bel, Inc., 614 F. Supp. 438, 440 (N.D. Ga.

1985) (emphasis added); accord, e.g., Davenport v. Cummins Ala.,
Inc.,

284

Ga.

App.

666,

671,

644

S.E.2d

503,

507

(2007)

(“[S]trict liability applies only to those actively involved in
the design, specifications, or formulation of a defective final
product[.]”); Buchan v. Lawrence Metal Prods., Inc., 270 Ga.
App. 517, 521, 607 S.E.2d 153, 156-57 (2004) (finding a jury
question on whether a product seller had an active role in the
design of a product and could therefore be held liable as a
manufacturer).

For

these

reasons,

Williamson

sufficiently

alleged that the Kinderhook Defendants were “manufacturers” of
the gas container within the meaning of Georgia law.
thus

finds

that

Williamson

is

9

entitled

to

The Court

jurisdictional

discovery

on

her

direct

claims

against

the

Kinderhook

Defendants.
B.

Alter Ego Claims Against Kinderhook Defendants

In general, a parent corporation is not liable for the acts
or omissions of its subsidiary unless

the corporate veil is

pierced, the subsidiary is the mere alter ego of the parent,
there

is

an

agency

relationship

between

the

parent

and

subsidiary, or there is a joint venture between the parent and
subsidiary.

Kissun

v.

Humana,

S.E.2d 751, 752 (1997).

Inc.,

267

Ga.

419,

419,

479

Here, Williamson contends that the

alter ego doctrine applies.

“Under the alter ego doctrine in

Georgia, the corporate entity may be disregarded for liability
purposes

when

abused.”

it

is

shown

that

the

corporate

form

has

been

Baillie Lumber Co. v. Thompson, 279 Ga. 288, 289, 612

S.E.2d 296, 299 (2005); see also Christopher v. Sinyard, 313 Ga.
App.

866,

867,

723

S.E.2d

78,

80

(2012)

(“The

concept

of

piercing the corporate veil is applied in Georgia to remedy
injustices

which

arise

where

a

party

has

overextended

his

privilege in the use of a corporate entity in order to defeat
justice,

perpetrate

fraud

or

to

evade

do

not

contractual

or

tort

responsibility.”).
The

Kinderhook

Defendants

dispute

that

in

2007,

Kinderhook Capital Fund II, L.P. acquired a 75.2% interest in a
limited

liability

company

that

10

indirectly

owned

Blitz

USA

through a series of wholly-owned subsidiaries.

The Kinderhook

Defendants also do not dispute that Kinderhook Industries, LLC
manages Kinderhook Industries II, L.P., which in turn manages
Kinderhook Capital Fund II, L.P.

Williamson alleges:

1) The Kinderhook Defendants restructured Blitz USA and
“forced upon Blitz extraordinary debt,” invested little
capital,
and
caused
Blitz
to
become
“inadequately
capitalized and grossly underinsured.”
1st Am. Compl.
¶ 31.
2) Blitz’s
Id.

board

was

“controlled

by

Kinderhook

directors.”

3) “Kinderhook created additional corporations in an attempt
to insulate Blitz’s assets from personal injury claims.”
Id. ¶ 32.
4) The Kinderhook Defendants caused Blitz to pay them
management fees that were “disproportional to the amount
paid to the on-site managers of Blitz USA.” Id. ¶ 34.
5) After the gas container design was found to be defective
during a trial, the Kinderhook Defendants renegotiated
Blitz USA’s debt and then “transferred millions of dollars
to Blitz Acquisitions Holdings, Inc. . . . to avoid paying
bodily injury claims arising from the defective gas cans.”
Id. ¶¶ 34-37.
6) “Kinderhook’s management of Blitz was conducted with the
sole purpose of draining money from Blitz USA . . . to
related corporate entities.” Id. ¶ 39.
7) “Kinderhook was intimately involved in the Blitz companies
and wholly controlled their activities.” Id. ¶ 41.
Based on these allegations, the Court is satisfied that
Williamson has alleged enough to be entitled to jurisdictional
discovery on her claim that Blitz USA was the mere alter ego of
the Kinderhook Defendants.

The Court recognizes that another

district

claims

court

dismissed

11

against

the

Kinderhook

Defendants based on similar allegations.

Smith ex rel. VanBrunt

v. Blitz USA, Inc., Civ. No. 11-1771 (RHK/LIB), 2012 WL 5413513,
at *3 (D. Minn. Nov. 6, 2012).

But in that case, the court

emphasized that there was “no evidence that [the parent] is or
ever has been involved in day-to-day control over production or
distribution of [its subsidiary’s] products.”
in

original)

Williamson

(internal

alleges

that

quotation
the

marks

omitted).

Kinderhook

controlled” the activities of Blitz USA.

Id. (alterations
Here,

Defendants

“wholly

1st Am. Compl. ¶ 41.

The Court is thus not persuaded that Smith supports dismissal of
Williamson’s claims at this stage in the litigation.

Williamson

has alleged enough to be entitled to jurisdictional discovery on
her claim that Blitz USA was the alter ego of the Kinderhook
Defendants.
C.

Merits of
Defendants

The

Kinderhook

Williamson’s
Defendants

Claims

argue

Against
even

that

Kinderhook
the

if

Court

finds that Williamson alleged sufficient facts to be entitled to
jurisdictional

discovery

Blitz

the

USA

and

regarding

Kinderhook

the

Defendants,

relationship
Williamson’s

between
design

defect and failure to warn allegations are too conclusory to
survive

a

motion

to

dismiss.

The

Court

disagrees.

This

argument suffers from what this Court has previously described
as the “Twombly/Iqbal compulsion.”

12

See, e.g., Barker ex rel.

United States v. Columbus Reg’l Healthcare Sys., Inc., 977 F.
Supp. 2d 1341, 1346 (M.D. Ga. 2013).

Empowered by language in

Twombley/Iqbal, defendants now routinely file motions to dismiss
not based on a plaintiff’s failure to state sufficient facts
which, if true, would state a claim that is plausible; instead,
defendants argue that it is not plausible that the plaintiff
will be able to prove the facts she alleges.

Thus, the Court is

asked “to divine what the plaintiff may plausibly be able to
prove rather than accepting at the motion to dismiss stage that
the

plaintiff

will

be

able

to

prove

his

allegations.”

Id.

These motions “view every factual allegation as a mere legal
conclusion and disparagingly label all attempts to set out the
elements of a cause of action as ‘bare recitals.’”

Id.

As this

Court has made clear before, the Supreme Court in Twombly and
Iqbal did not rewrite Rule 12(b)(6) or abandon notice pleading.
Id.

Accepting Defendant’s argument in this case would require

the Court to ignore Twombly’s admonition that “a well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a recovery
is

very

remote

and

unlikely.”

Twombly,

550

U.S.

at

556

(internal quotation marks omitted).
Here,

Williamson

alleges

that

the

Kinderhook

designed the gas container without a flame arrestor.
Compl. ¶ 96.

Defendants
1st Am.

These are allegations of fact, not conclusory

13

statements.

Williamson also alleges that the absence of the

flame arrestor made the product defective.

While one must make

a deduction from the factual allegation to reach the conclusion
of product defect, this is not a bare conclusory allegation.
Williamson

also

specifically

deficiencies in the warnings:

alleges

the

nature

of

the

there was no warning regarding

the dangers of using the gas can without a flame arrestor near a
fire,

and

the

illegible.

warnings

Id. ¶ 105.

that

were

on

the

gas

container

These are factual statements.

were

She also

alleges that she was injured because of the design defect and
the failure to warn.

While Williamson will eventually have to

prove these allegations to prevail, she does not have to do so
today,

no

matter

how

improbability

that

Williamson’s

factual

convinced

she

will

Defendants

ever

allegations

be

are

able

may
to

certainly

be

of

prove

the
them.

sufficient

to

survive a motion to dismiss her defective product claims against
the Kinderhook Defendants.
III. Failure to Recall/Retrofit Claims against all Defendants
Williamson alleges that all Defendants negligently failed
to “recall and/or retrofit” the gas container.
¶¶ 80,

123,

continuing

163.

duty

upon

“Georgia

common

manufacturers

unless “special circumstances” exist.

to

law

does

recall

1st Am. Compl.
not
their

a

products”

Ford Motor Co. v. Reese,

300 Ga. App. 82, 85, 87, 684 S.E.2d 279, 283-85 (2009).

14

impose

Special

circumstances

exist

“if

a

manufacturer

chooses

to

recall

a

product voluntarily” or if a “statute or governmental agency
requires the manufacturer to recall the product.”

Id. at 85

n.2, 684 S.E.2d at 284 n.2.
Williamson

argues

that

special

circumstances

exist

here

because Defendants should have reported prior adverse incidents
involving the gas container model to the Consumer Product Safety
Commission.

Williamson

speculates

that

if

Defendants

had

reported the adverse incidents, that “would have likely led to a
recall.”

Pl.’s Resp. to Def. Wal-Mart’s Mot. to Dismiss 6, ECF

No. 44.

But Plaintiff did not allege that any governmental

agency actually required a recall or retrofit campaign.
Court

thus

concludes

that

Plaintiff

did

not

allege

The

special

circumstances to support a failure to recall claim.
Williamson appears to contend that even if Reese bars her
“failure

to

recall”

claim,

it

does

not

bar

her

“failure

retrofit” claim because Reese only addressed “recalls.”

to
The

rationale in Reese applies equally to recall campaigns (where a
manufacturer calls back goods it sold) and retrofit campaigns
(where

a

manufacturer

calls

back

goods

it

sold

and

updates

them).

In Reese, the Georgia Court of Appeals emphasized that

under

Georgia’s

“products

liability

jurisprudence,

a

manufacturer’s duty to implement alternative safer designs is
limited to the time the product is manufactured, not months or

15

years

later

Reese,

300

when
Ga.

technology

App.

at

or

85,

knowledge

684

S.E.2d

may
at

have

284.

changed.”
For

these

reasons, all of Williamson’s failure to recall and failure to
retrofit claims are dismissed.
IV.

Consumer Product Safety Act Claim against All Defendants
Williamson asserts claims against all Defendants under the

Consumer Product Safety Act, 15 U.S.C. §§ 2051-2089.
maintains

that

container’s

although

substantial

Defendants
hazards

were

and

of

aware

of

adverse

Williamson
the

gas

incidents

involving the gas container, Defendants did not report those
hazards or incidents to the Consumer Product Safety Commission
as required under the Act and related regulations.

Defendants

contend that even if these allegations are true, the Consumer
Product Safety Act does not provide a private right of action
for alleged reporting violations.
Congress passed the Consumer Product Safety Act “to protect
the public against unreasonable risks of injury associated with
consumer

products.”

15

U.S.C. §

2051(b)(1).

The

Act

established the Consumer Product Safety Commission, which has
authority to develop product safety standards and ban or require
recalls of hazardous products.
2064(c).
retailers

The
of

Act

requires

consumer

Id. §§ 2053, 2056, 2057, 2058,
manufacturers,

products

to

inform

distributors,
the

Commission

and
of

“information which reasonably supports the conclusion that” the

16

product

“contains

product

hazard”

injury

or

a

or

death.”

defect

which

“creates

an

could

create

unreasonable

a

substantial

risk

15 U.S.C. § 2064(b)(3)-(4).

of

serious

Manufacturers,

distributors, and retailers may be subject to civil and criminal
penalties for violating the Act’s reporting requirements.
§§

2068(a)(4),

provide

a

2069,

private

2070.

right

But

of

the

action

Act
for

does
a

not

Id.

expressly

violation

of

the

reporting requirements.
The Act does provide for a private right of action for
individuals who are injured “by reason of any knowing (including
willful) violation of a consumer product safety rule, or any
other

rule

or

order

15 U.S.C. § 2072(a).

issued

Williamson

by

contends

the
that

Commission.”
these

“rules”

include the Commission’s interpretation of the Act’s reporting
requirements, which are set forth in
1115.15.

16 C.F.R. §§ 1115.1 to

See 16 C.F.R. § 1115.1 (stating that the purpose of

part 1115 is to set forth the Commission’s “interpretation of
the

reporting

requirements

imposed

on

manufacturers

. . .,

distributors, and retailers” by § 2064(b)).
Although

the

Eleventh

Circuit

has

not

addressed

this

question, every circuit court that has addressed the issue has
concluded
“based

on

§ 2072
an

does

injury

not

create

resulting

a

from

private

right

noncompliance

of

with

product hazard reporting rules issued by the Commission.”

17

action
the
Drake

v. Honeywell, Inc., 797 F.2d 603, 611 (8th Cir. 1986); accord
Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1457 (10th Cir.
1990) (holding “that there is no private cause of action under
the

Act

for

a

manufacturer’s

failure

to

report

to

the

CPSC

information concerning possible defective products”); BenitezAllende v. Alcan Aluminio do Brasil, S.A., 857 F.2d 26, 35 (1st
Cir. 1988) (following Drake); Copley v. Heil-Quaker Corp., 818
F.3d 866 (table), 1987 WL 37429, at *2 (6th Cir. 1987) (per
curiam) (following Drake); see also In re Stand ‘N Seal, Prods.
Liab. Litig., No. 1:07 MD1804-TWT, 2009 WL 1635599, at *3-*4
(N.D.

Ga.

Tidewater

June

9,

Midwest,

2009)
Inc.,

(following

856

F.2d

Drake);

936,

942

(agreeing with Drake holding and reasoning).

cf.

(7th

Zepik
Cir.

v.

1988)

But see Young v.

Robertshaw Controls Co.; 560 F. Supp. 288, 294 (N.D.N.Y. 1983);
(finding private right of action under § 2072 based on reporting
violations);

Butcher

v.

Robertshaw

692, 700 (D. Md. 1981) (same).

Controls

Co.,

550

F.Supp.

In Drake, for example, the

Eighth Circuit observed that “a claim of conduct inconsistent
with an interpretive rule is advanced only to show that the
statute itself has been violated.” 797 F.2d at 607.

“An action

based on a violation of an interpretive rule does not state a
legal claim. Being in nature hortatory, rather than mandatory,
interpretive
reasons,

the

rules

never

Eighth

can

Circuit

be

violated.”

concluded

18

that

Id.

For

only

suits

these
for

violations of the Commission’s legislative rules may be brought
under § 2072.

Id. at 610-11.

The Court is persuaded by the rationale of Drake and the
other courts that found no private right of action under the
Consumer Product Safety Act for alleged reporting violations.
Williamson’s claims under the Consumer Product Safety Act are
therefore dismissed.
V.

Retailer Liability Claims against Wal-Mart and Home Depot
Williamson asserts failure to warn claims against Wal-Mart

and

Home

Williamson

Depot

as

purported

concedes

that

sellers

she

does

of

not

the
know

gas

container.

where

the

gas

container was purchased, although she believes that she can find
the answer during discovery.

She alleges that Wal-Mart “likely”

sold the container that caused her injuries.
¶ 26; accord id. ¶ 46.

1st Am. Compl.

But she also alleges that Kinderhook,

“Wal-Mart, Home Depot and/or [Ace Hardware] distributed or sold
the Blitz gas container at issue or sold the market share of
such containers in the state of Georgia.”

Id. ¶¶ 89, 153, 161.

“In the alternative,” Williamson alleges that “the gas container
at

issue

in

¶¶ 154, 161.

this

lawsuit

was

purchased

at

Home

Depot.”

Id.

Defendants contend that Williamson’s failure to

allege precisely which retailer sold the gas container bars her
retailer liability failure to warn claims against Home Depot and
Wal-Mart.

19

A.

Market-Share Liability Theory

Williamson contends that it is immaterial that she does not
know

where

the

gas

container

was

purchased

because

proceed under a market-share liability theory.

she

may

Under certain

circumstances in some jurisdictions, if a plaintiff cannot prove
which manufacturer produced the product that caused an injury,
several manufacturers of the product can be held liable on a pro
rata basis according to the market share of each manufacturer.
See generally, e.g., Sindell v. Abbott Labs., 607 P.2d 924 (Cal.
1980) (finding that manufacturers of DES drug could be subject
to liability based on market share).
Georgia

does

not

recognize

market-share

liability.

In

fact, Georgia expressly rejected it: “Irrespective of privity, a
manufacturer shall not be held liable for the manufacture of a
product alleged to
share

or

be defective based on theories of market

enterprise,

liability.”

or

O.C.G.A. §

other

theories

51-1-11(d).

of

Williamson

industry-wide
argues

that

because the statute only references manufacturers, it should be
read

to

permit

sellers.

market-share

liability

claims

against

product

O.C.G.A. § 51-1-11 establishes Georgia’s law of strict

liability for manufacturers, and section (d) places limits on
strict

liability

by

rejecting

market-share

liability.

The

statute does not apply at all to sellers; under Georgia law,
product sellers are not manufacturers for purposes of product

20

liability actions based on the doctrine of strict liability and
are “not liable as such.”

O.C.G.A. § 51-1-11.1(b).

In Georgia,

a product seller only has a duty to warn of product dangers if
the

seller

undertakes

a

duty

to

advise

the

buyer

on

the

product’s safety or if the “seller is aware of a danger either
not communicated by the manufacturer’s warning or substantively
different from the dangers the manufacturer has included in a
warning label.”

Boyce v. Gregory Poole Equip. Co., 269 Ga. App.

891, 896, 605 S.E.2d 384, 390 (2004).

Williamson offers no

authority to support her assertion that the doctrine of marketshare

liability,

against

which

manufacturers

sellers.

evolved
of

to

fungible

relax
goods,

For these reasons, Williamson’s

the

causation

applies

to

rules

product

claims based on a

market-share liability theory are dismissed.
B.

Alternative Allegations

Williamson

argues

that

even

if

the

Court

rejects

her

market-share liability argument, her retailer liability claims
should not be dismissed because she is not required, at this
stage of the litigation, to pinpoint where the gas container was
purchased.

The Court agrees.

Federal Rule of Civil Procedure

8(d)(2) permits alternative pleading.

Fed. R. Civ. P. 8(d)(2);

accord United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273-74
(11th Cir. 2009).
“raise

a

Williamson’s factual allegations must simply

reasonable

expectation

21

that

discovery

will

reveal

evidence of” her claims.

Twombly, 550 U.S. at 556.

Williamson

is not yet in a position to know all of the particulars, but she
believes that discovery will help her prove exactly where the
gas container was purchased.

Should discovery reveal that the

gas container was purchased at Wal-Mart, then Home Depot may be
entitled to summary judgment on Williamson’s retailer liability
claims (and vice versa).

At the initial pleading stage, the

Court is satisfied that Williamson’s allegations are sufficient
to state a failure to warn retailer liability claim against WalMart, and in the alternative, against Home Depot.
CONCLUSION
As discussed above, Kinderhook’s motion (ECF No. 36) is
granted in part and denied in part; Wal-Mart’s motion (ECF No.
37) is granted in part and denied in part; and Home Depot’s
motion (ECF No. 38) is granted in part and denied in part.
The following claims are dismissed:


Any negligence claims against Wal-Mart based on conduct
other than the specific conduct Williamson alleges in her
First Amended Complaint.



Failure to recall/retrofit claims.



Claims under the Consumer Product Safety Act.



Claims based on a market-share liability theory.

The following claims remain pending:


Design defect and failure to warn claims against Wal-Mart
and the Kinderhook Defendants as product designers.

22



Failure to warn claims against Wal-Mart and Home Depot as
product sellers.

The Court previously stayed discovery pending resolution of
Defendants’ motions to dismiss.
parties

shall

submit

a

The stay is now lifted.

joint

proposed

scheduling

order

The
in

compliance with the Court’s Rules 16/26 Order (ECF No. 25) by
April 30, 2015.

As discussed at the hearing, the parties should

agree on a way to phase discovery so that targeted discovery of
key

preliminary

issues,

such

as

the

Kinderhook

Defendants’

relationship to Blitz USA and the gas container’s point of sale,
are handled first.

IT IS SO ORDERED, this 8th day of April, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

23