Love v. Weecoo(TM) et al

Filing 33

OPINION AND ORDER granting Amazon.com, Inc.'s 29 Motion to Dismiss for Failure to State a Claim. Signed by Judge Thomas W. Thrash, Jr. on 10/16/18. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IRVIN R. LOVE, JR.,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:18-CV-540-TWT

WEECOO(TM), et al.,
Defendants.
OPINION AND ORDER
This is a personal injury action. It is before the Court on Defendant
Amazon.com, Inc.’s Motion to Dismiss [Doc. 29]. For the reasons stated below,
the Defendant Amazon.com, Inc.’s Motion to Dismiss is GRANTED.
I. Background
On November 22, 2015, the Plaintiff Irvin R. Love, Jr., purchased a
“WEECOO(TM) Two Wheels Smart Self Balancing Scooters Electric Drifting
Board Personal Adult Transporter” on the Defendant Amazon.com, Inc.’s
website.1 The product purchased by the Plaintiff was part of a class of products
known as “hoverboards.” This particular hoverboard was manufactured in China
by Defendant WEECOO(TM) and imported into the United States by Defendant

1

First Am. Compl. ¶¶ 11-13.

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Panda Town.2 On November 23, 2015, Defendant Amazon shipped the
hoverboard to the Plaintiff’s residence.3 The product was not accompanied by
any warnings about potential fire risks.4 On February 5, 2016, the hoverboard
started a fire at the Plaintiff’s residence.5 The Plaintiff attempted to get himself
and his girlfriend out of the residence.6 In the process, the Plaintiff sustained
severe injuries from smoke inhalation and from burns on his face, back, and
shoulders that required skin grafts.7 The fire destroyed the Plaintiff’s residence,
resulting in the loss of over $50,000 in real and personal property.8
The Plaintiff now brings suit against the business entities involved in the
manufacture, importation, advertisement, and sale of the hoverboard. The
Plaintiff seeks compensation for the damage to the Plaintiff’s property and to his

Id. ¶¶ 2, 3, 11, 12. In addition to WEECOO(TM) and Panda Town,
the Plaintiff has joined as defendants several foreign business entities that
allegedly contributed to the design and manufacture of the hoverboard. The
Motion to Dismiss presently before this Court concerns only the Plaintiff’s
claims against Defendant Amazon.
2

3

Id. ¶ 13.

4

Id. ¶ 15.

Id. ¶ 16. This Court assumes for the purposes of this Order that
the hoverboard caused the fire as alleged in the First Amended Complaint.
5

6

Id. ¶ 17.

7

Id. ¶¶ 18-20.

8

Id. ¶ 21.

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physical and emotional well-being.9 The Plaintiff brings state law claims for
negligence, failure to warn, and punitive damages against Defendant Amazon.10
Defendant Amazon now moves to dismiss all claims against it.
II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it
appears that the facts alleged fail to state a “plausible” claim for relief.11 A
complaint may survive a motion to dismiss for failure to state a claim, however,
even if it is “improbable” that a plaintiff would be able to prove those facts; even
if the possibility of recovery is extremely “remote and unlikely.”12 In a ruling on
a motion to dismiss, the court must accept the facts pleaded in the complaint as
true and construe them in the light most favorable to the plaintiff.13 Generally,
notice pleading is all that is required for a valid complaint.14 Under notice
pleading, the plaintiff need only give the defendant fair notice of the plaintiff’s

9

Id. ¶¶ 23-24.

10

Id. ¶¶ 57-71.

11

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fed. R. Civ. P. 12(b)(6).

12

Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).

See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th
13

Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the benefit
of imagination”).
14

See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th

Cir. 1985), cert. denied, 474 U.S. 1082 (1986).
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claim and the grounds upon which it rests.15
III. Discussion
A. Negligence and Failure to Warn
The essential elements of a negligence action in Georgia are “(1) a legal
duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between
the breach and the injury.”16 A product seller can be liable for negligent failure
to warn if “at the time of sale, it had ‘actual or constructive knowledge’ that its
product created a danger for the consumer.”17 The Plaintiff alleges that
Defendant Amazon was negligent because, in the months leading up to the
Plaintiff’s purchase, it continued to advertise and sell hoverboards on its website
despite knowledge that the products were poorly manufactured and likely to
cause fires.18 The Plaintiff also alleges that Defendant Amazon negligently failed
to warn the Plaintiff about these known safety risks.19 This Order will discuss
these claims together because both turn on the same central question: whether
Amazon knew or should have known that the hoverboard purchased by the

15

U.S. at 555).
16

See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550
Vaughan v. Glymph, 241 Ga. App. 346, 348 (1999).

Gomez v. Scepter Holdings, Inc., No. 3:17-CV-42 (CDL), 2017 WL
4366733, at *3 (M.D. Ga. Sept. 29, 2017) (quoting Bishop v. Farhat, 227 Ga.
App. 201, 206 (1997)).
17

18

First Am. Compl. ¶¶ 65-68.

19

Id. ¶¶ 57-64.

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Plaintiff was dangerous at the time of sale.
The Plaintiff has not pleaded facts sufficient to show that Defendant
Amazon had actual or constructive knowledge that the hoverboard sold to the
Plaintiff was dangerous at the time of sale.20 The Plaintiff goes into detail about
the defects that plagued “nearly all” hoverboards sold on Defendant Amazon’s
website during the relevant time period.21 The Plaintiff states that Defendant
Amazon “knew” that the hoverboards being sold on its website were poorly
manufactured and were likely to cause fires.22 But the Plaintiff must do more
than assert, in conclusory fashion, that the Defendant knew about the product’s
defects.23 The Plaintiff must, at minimum, plead facts tending to show how
20

Def.s’ Mot. to Dismiss, at 8-11 [Doc. 29]. Defendant Amazon also
stipulates that “[a]t the appropriate time” it will argue that it is not the “seller”
of the hoverboard in question. Id., at 2. Defendant Amazon has chosen not to
further develop this argument at the Motion to Dismiss stage, however.
Therefore, this Court assumes for the purposes of this Order that Defendant
Amazon is subject to the duties and obligations imposed on product sellers
under Georgia law.
21

First Am. Compl. ¶¶ 58-59. Specifically, the Plaintiff alleges that
the lithium-ion batteries that powered the hoverboards posed a significant risk
of fire.
22

Id.

23

South Fla. Water Management Dist. v. Montalvo, 84 F.3d 402, 409

n.10 (11th Cir.1996) (“As a general rule, conclusory allegations and unwarranted
deductions of fact are not admitted as true in a motion to dismiss.”) (internal
citation omitted); see also Jones v. Polaris Indus., Inc., No. 1:12CV44–B–S, 2013
WL 1193740, at *2 (N.D. Miss. Mar. 22, 2013) (“The court is of the opinion that
the statements in the complaint related to [the defendant’s] knowledge of and
involvement in the defect are conclusory allegations not based in any specific
fact. Conclusory statements alone are insufficient to state a claim.”) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
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Defendant Amazon came by that knowledge.
The Plaintiff alleges that Defendant Amazon was aware of nine prior
incidents in which hoverboards sold on its website started fires. The Plaintiff
identifies these incidents by date and location in his Complaint.24 Of the nine
incidents identified by the Plaintiff, however, only the four that occurred prior
to the Plaintiff’s purchase are relevant to this lawsuit.25 The post-sale incidents
evidently could not have made Defendant Amazon aware of the need to remove
hoverboards from its website in time to prevent the Plaintiff from buying one,
and product sellers have no obligation under Georgia law to warn of defects
discovered after the product is sold.26 The question therefore becomes whether
the Plaintiff’s proffered facts regarding the four pre-sale incidents could

24

These incidents are listed in the Complaint as follows: November
11, 2015, Somerville Massachusetts; November 18, 2015, Chicago, Illinois;
November 20, 2015, Torrance, California; November 21, 2015, Lafitte,
Louisiana; November 27, 2015, Ashtabula, Ohio; December 23, 2015, Medford,
Oregon; January 3, 2016, Nashville, Tennessee; November 27, 2016, Gulf
Shores, Alabama; December 18, 2016, Lincoln, Nebraska. First Am. Compl. ¶ 23.
25

The pre-sale incidents occurred on November 11, 2015; November
18, 2015; November 20, 2015; and November 21, 2015. Id. The Plaintiff
purchased his hoverboard on November 22, 2015. Id., at ¶¶ 11-13.
26

DeLoach v. Rovema Corp., 241 Ga. App. 802, 804 (2000). The

Plaintiff argues in his response briefing that a post-sale duty to warn may arise
when a product seller investigates a product’s expected use and should have
recognized the danger in such use. Pl.’s Resp. to Def.’s Mot. to Dismiss, at 7
[Doc. 30] (citing Boyce v. Gregory Poole Equip. Co., 269 Ga. App. 891, 896
(2004)). But the Plaintiff does not allege that Defendant Amazon actually
undertook such an investigation. Therefore, the Plaintiff’s argument regarding
Defendant Amazon’s post-duty sale to warn is unavailing.
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plausibly support a finding that Defendant Amazon knew or should have known
that the product sold to the Plaintiff was dangerous.
They cannot. The prior incidents alleged in the First Amended Complaint
occurred 1, 2, 4 and 11 days before Amazon shipped the hoverboard to the
Plaintiff. The Plaintiff asserts that Defendant Amazon “knew” about these
incidents without describing how, when, or where Defendant Amazon received
notice of these incidents. The Plaintiff also fails to plead particular facts about
any of these incidents, beyond asserting that they were cases in which a
hoverboard started a fire. In order for prior incidents to give rise to a legal duty
to take corrective measures, the prior incidents must be “sufficiently similar to
the facts involved in the present action.”27 Here, the Plaintiff has provided no
facts from which to glean whether these prior incidents were sufficiently similar
to the one that gives rise to this suit. Indeed, the Plaintiff omits particularly
salient facts like the brand or brands of hoverboards involved in these incidents
and the circumstances that gave rise to the fires. These bare bones allegations
cannot support a finding that Defendant Amazon knew or should have known
about the safety risk posed by the hoverboard purchased by the Plaintiff.
Accordingly, the Plaintiff’s claims against Defendant Amazon for negligence and
failure to warn should be dismissed.
B. Punitive Damages

See Forest Cove Apartments v. Wilson, 333 Ga. App. 731, 736-737
(2015); see also Morris v. Pope, 344 Ga. App. 25, 27 (2017).
27

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The Plaintiff’s claim for punitive damages is due to be dismissed because
it is derivative of the underlying tort claims.28 The Plaintiff’s claim should also
be dismissed because the Complaint merely recites the standard for punitive
damages without pleading facts sufficient to find that Defendant Amazon’s
conduct met that standard.29
IV. Conclusion
For the foregoing reasons, the Defendant Amazon.com, Inc.’s Motion to
Dismiss [Doc. 29] is GRANTED.
SO ORDERED, this 16 day of October, 2018.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

See Perkins v. Thrasher, 701 F. App'x 887, 891 (11th Cir. 2017);
Lilliston v. Regions Bank, 288 Ga. App. 241, 246 (2007); J. Andrew Lunsford
Properties, LLC v. Davis, 257 Ga. App. 720, 722 (2002).
28

29

First Am. Compl. ¶ 70; O.C.G.A. § 51–12–5.1.

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