GOMEZ et al v. SCEPTER HOLDINGS INC et al
ORDER granting in part and denying in part 22 and 23 Motions to Dismiss; finding as moot 12 and 13 Motions to Dismiss; lifting stay of discovery 25 ; ordering parties to comply with Court's Rules 16/26 Order 15 within twenty-eight days. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/29/2017. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ROBERT V. GOMEZ, II, KAITLYN
ANN WILLE, and JENNIFER PRICE,
SCEPTER HOLDINGS, INC., SCEPTER
CANADA, INC., SCEPTER
MANUFACTURING, LLC, and THE
CASE NO. 3:17-CV-42 (CDL)
O R D E R
Jennifer Price allege that they were injured when Gomez poured
gasoline from a Blitz portable gasoline container onto a mostly
extinguished fire and the container exploded.
that the gas container was defective because it did not have a
The gas container was manufactured by Blitz
U.S.A., which declared bankruptcy in 2011.
Scepter Manufacturing, LLC, and The Moore Company distributed the
gas container to Harbor Freight, where Gomez’s mother bought it.
Plaintiffs further allege that Defendants failed to provide an
adequate warning even though they knew the gas container was
dangerous when they distributed it to Harbor Freight.
contend that Plaintiffs’ Amended Complaint must be dismissed for
failure to state a claim.1
As discussed below, the Court grants
Defendants’ motions to dismiss (ECF Nos. 22 & 23) Counts Two and
Four of the Amended Complaint but denies the motions as to Counts
One and Three.
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
allegations “to raise a right to relief above the speculative
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.
complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable.’” Watts v. Fla. Int’l Univ.,
After Defendants moved to dismiss Plaintiffs’ original Complaint,
Plaintiffs filed an Amended Complaint.
That Amended Complaint
supersedes the original Complaint. See Dresdner Bank AG, Dresdner Bank
AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir.
2006) (“An amended pleading supersedes the former pleading; ‘the
original pleading is abandoned by the amendment, and is no longer a
part of the pleader’s averments against his adversary.’”) (quoting
Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 601 n.7 (5th Cir.
1945)). Therefore, the Court finds that Defendants’ motions to dismiss
the original Complaint (ECF Nos. 12 & 13) are moot.
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
Plaintiffs allege the following facts in support of their
Despite Defendants’ protestations to the contrary, the
Court must accept these factual allegations as true for purposes
of the pending motion.
Blitz U.S.A. manufactured the gas container at issue in this
Am. Compl. ¶ 20, ECF No. 17.
Blitz U.S.A. filed for
bankruptcy protection after it was sued by multiple individuals
for injuries caused by its allegedly defective gas containers.
Id. ¶ 28.
Defendant Scepter Holdings, Inc. acquired the assets
of Blitz U.S.A. in 2012.
Id. ¶¶ 4, 43-46.
There was an asset
purchase agreement between Blitz U.S.A. and Scepter Holdings.
provided, in relevant part, that when Scepter Holdings purchased
certain assets from Blitz U.S.A., Scepter Holdings did not assume
any “Liabilities arising out of or related to” certain “Retained
Scepter Defs.’ Mot. to Dismiss Ex. 1, Asset Purchase Agreement
¶ 2.4(a), ECF No. 23-2.
Those Retained Assets included “all
inventory (raw materials, work-in-progress,
finished goods, or
otherwise) used or initially held for use in connection with”
Blitz U.S.A.’s business.
Id. ¶ 2.2(f).
According to Plaintiffs, Scepter Holdings, Scepter Canada,
Inc., and Scepter Manufacturing, LLC
nonetheless took possession of “old Blitz product, including the
subject 5-gallon gas can” when Scepter took possession of Blitz
Am. Compl. ¶¶ 35-36.
Scepter decided to
distribute “the leftover Blitz product, including the subject gas
Id. ¶ 37.
Scepter maintained a marketing relationship
Products, Inc. (“Moeller”), and Moeller sold Scepter’s products
¶¶ 14, 30.
Harbor Freight to discuss the distribution and sale of Scepter
products, including the leftover Blitz product inventory.
¶¶ 32-33, 41.
And, after the asset purchase between Scepter
distributed the gas container at issue in this case to Harbor
Freight, where Gomez’s mother purchased it in September 2012.
Id. ¶¶ 22, 24, 46-49.
At the time, both Scepter and Moeller knew
that the Blitz gas containers were defective but decided to sell
Id. ¶¶ 22-26, 50-59.
Plaintiffs brought claims against Scepter and Moeller for
adequate post-sale warning.
Plaintiffs also brought a claim for
breach of warranty, but they withdrew that claim.
Defendants seek to dismiss Plaintiffs’ claims pursuant to
Plaintiffs cannot win under the applicable law if they prove all
the facts they allege.
Rather, Defendants are incredulous that
Defendants’ argument suffers from what the Court has previously
labeled the “Twombly/Iqbal compulsion”:
Since Twombly was decided, many lawyers have felt
compelled to file a motion to dismiss in nearly every
case, hoping to convince the Court that it now has the
authority 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. These motions, which bear a close
resemblance to summary judgment 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.” They
almost always, either expressly or, more often,
implicitly, attempt to burden the plaintiff with
establishing a reasonable likelihood of success on the
merits under the guise of the “plausibly stating a
claim” requirement. While these cautious lawyers, who
have been encouraged by Twombly and Iqbal, have parsed
the Twombly decision to extract every helpful syllable,
they often ignore a less well known (or at least less
course, 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 . . . . Finding the
Twombly/Iqbal urge irresistible, many lawyers fail to
appreciate the distinction between determining whether
a claim for relief is “plausibly stated,” the inquiry
required by Twombly/Iqbal, and divining whether actual
proof of that claim is “improbable,” a feat impossible
for a mere mortal, even a federal judge.
Barker ex rel. U.S. v. Columbus Reg’l Healthcare Sys., Inc., 977
F. Supp. 2d 1341, 1346 (M.D. Ga. 2013).
As the Court has observed, Twombly and Iqbal did not rewrite
Rule 12(b)(6) or abandon notice pleading.
Again, to survive a
motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is
plausible on its face.”
556 U.S. at 678.
Twombly, 550 U.S. at 570; accord Iqbal,
Here, Defendants’ chief argument is that no one
could possibly believe that discovery will reveal evidence of
Once more, it is not the Court’s job at this
dismissal of a well-pleaded complaint simply because ‘it strikes
a savvy judge that actual proof of those facts is improbable.’”
Watts, 495 F.3d at 1295 (quoting Twombly, 550 U.S. at 556).
In this case, Defendants contend that the asset purchase
agreement between Scepter Holdings and Blitz U.S.A. shields them
from liability as a matter of law because Scepter Holdings did
not purchase Blitz U.S.A.’s gas container inventory and did not
containers was not part of the asset purchase agreement between
Blitz and Scepter, and they do not appear to dispute that Scepter
did not agree to accept liability resulting from Blitz’s conduct
Therefore, Plaintiffs seem to acknowledge that they cannot pursue
claims against Scepter based on successor liability.
distribute, without an adequate warning, the Blitz gas containers
that Scepter allegedly found in a warehouse when it purchased
Blitz’s facilities even though Scepter and Moeller both allegedly
knew the gas containers were defective (and even though Scepter
allegations are true, then Defendants could be held liable under
a negligent seller theory.
Under Georgia law, a product distributor can be “liable for
negligent failure to warn only if, at the time of the sale, it
had ‘actual or constructive knowledge’ that its product created a
danger for the consumer.”
Bishop v. Farhat, 489 S.E.2d 323, 328
Defendants also contend that Plaintiffs must be alleging that Scepter
colluded with Blitz U.S.A. on a plan to sell the gas containers, which
were not sold to Scepter as part of the asset purchase agreement, even
though the Bankruptcy Court expressly found that there was no
collusion. But Plaintiffs do not allege that Blitz U.S.A. and Scepter
made a plan for Scepter to sell the gas containers. Rather, Plaintiffs
allege that Scepter and Moeller decided to sell the leftover Blitz
U.S.A. inventory that Scepter found in a Blitz U.S.A. warehouse.
(Ga. Ct. App. 1997) (quoting Stiltjes v. Ridco Exterminating Co.,
required to warn if [it] ‘has knowledge, or by the application of
knowledge of the danger . . . .’”
Id. (quoting Chrysler Corp. v.
Batten, 450 S.E.2d 208, 211 (Ga. 1994)) (finding that a jury
question existed on whether a product distributor reasonably knew
adequately allege that Defendants had sufficient knowledge of the
allege facts which, if proven, would establish that Defendants
(alleging that Defendants knew
or should have known
The Court thus denies Defendants’ motion to dismiss
Counts One and Three of the Amended Complaint.
The Court, however, grants Defendants’ motions to dismiss
Count Four of the Amended Complaint, which is based on a postsale
manufacturer’s duty to warn consumers of danger arising from the
use of a product based on knowledge acquired after the product is
DeLoach v. Rovema Corp., 527 S.E.2d 882, 883 (Ga. Ct.
App. 2000) (emphasis added).
“But Georgia law imposes a duty on
a seller to warn only of dangers actually or constructively known
at the time of the sale.”
Id. (emphasis added); accord Bishop,
489 S.E.2d at 328 (emphasizing that a distributor’s liability for
negligent failure to warn is based on what the distributor knew
or should have known “at the time of the sale”).
reason, Plaintiffs’ post-sale failure to warn claim fails as a
matter of law and must be dismissed.
original Complaint (ECF Nos. 12 & 13) are moot.
The Court grants
Defendants’ motions to dismiss Counts Two and Four of the Amended
Complaint (ECF Nos. 22 & 23) but denies Defendants’ motions as to
Counts One and Three.
The discovery stay (ECF No. 25) is lifted.
comply with the Court’s Rules 16/26 Order (ECF No. 15).
IT IS SO ORDERED, this 29th day of September, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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