Simmerman et al v. Ace Bayou Corp. et al

Filing 39

MEMORANDUM OPINION AND ORDER: It is ordered that the 26 Motion for Leave to amend the Complaint is DENIED. Signed by Judge Danny C. Reeves on 1/6/2015. (SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
ANDREW SIMMERMAN,
Individually and as Administrator of
ESTATE OF MKS (a minor), et al.,

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Plaintiffs,
V.
ACE BAYOU CORPORATION, et al.,
Defendants.

Civil Action No. 5: 14-382-DCR

MEMORANDUM OPINION
AND ORDER

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This action is pending for consideration of Plaintiffs Andrew Simmerman and Terri
Mills’s motion for leave to file an Amended Complaint. [Record No. 26] The plaintiffs seek
to amend the original Complaint “to state a prima facie case of products liability” against
Defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. (collectively, “Wal-Mart
Defendants”). [Record No. 26-1, p. 1] For the reasons outlined below, the motion will be
denied.
I.
The original Complaint was filed in September 2014 in the Fayette Circuit Court
against the Wal-Mart Defendants, Ace Bayou Corp., Richard Davis, Murray Valene, and
Teresa Spears.

[Record No. 1-1]

The plaintiffs claim that the defendants designed,

manufactured, and sold a defective bean-bag chair that caused the tragic death of three-yearold MKS on September 12, 2012. [Id.] On September 30, 2014, the defendants removed the
action to this Court. [Record No. 1] Because Defendant Teresa Spears was fraudulently
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joined as a party by the plaintiffs to avoid federal jurisdiction, this Court dismissed the
claims against Spears and cautioned that the plaintiffs’ Complaint neglected to properly state
a prima facie case of products liability against the Wal-Mart Defendants under Kentucky
law. [Record No. 22] Attempting to salvage these claims, the plaintiffs filed the pending
motion for leave to amend the Complaint. [Record No. 26]
II.
Amendments to pleadings are governed by Rule 15 of the Federal Rules of Civil
Procedure. Under this Rule, the plaintiffs’ opportunity to amend the Complaint as a matter
of course has passed. See Fed. R. Civ. P. 15(a)(1)(A), (B) (establishing window in which
plaintiffs may amend as of right). As a result, the plaintiffs may now amend their Complaint
only with the defendants’ written consent or the Court’s permission.

Fed. R. Civ. P.

15(a)(2). Because the defendants oppose the motion for leave to amend, [Record No. 34] the
Court must consider whether justice requires that leave be granted. See Fed. R. Civ. P.
15(a)(2). This policy is premised on the desirability of hearing the plaintiff’s claims on the
merits. Foman v. Davis, 371 US. 178, 182 (1962). Generally, a plaintiff’s motion for leave
to amend should be granted absent a justifiable reason, such as avoiding undue delay,
repeated failure to cure deficiencies, prejudice to the opposing party, and futility of the
amendment. Riverview Health Inst., LLC v. Med. Mutual of Ohio, 601 F.3d 505, 512 (6th
Cir. 2010). Here, there is no indication of undue delay, bad faith, or dilatory motive.
Instead, the Defendants oppose the motion to amend on the basis of futility. [Record No. 34,
p. 1]
A motion to amend is futile if the proposed amendment “could not withstand a Rule
12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417 (6th Cir.
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2000) (citing Thiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d 376,
382-83 (6th Cir. 1993)). “When considering a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, the district court must accept all of the allegations in
the complaint as true, and construe the complaint liberally in favor of the plaintiff.”
Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999). The Court will
consider only the proposed Amended Complaint, which must include “only enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007). To overcome a Rule 12(b)(6) dismissal, “the complaint’s [‘f]actual allegations must
be enough to raise a right to relief above the speculative level’ and ‘state a claim to relief that
is plausible on its face.’” Campbell v. BNSF Ry. Co., 600 F.3d 667, 677 (6th Cir. 2010)
(citing Tam Travel, Inc. v. Delta Airlines, Inc., 583 F.3d 896, 903 (6th Cir. 2009)).
III.
Here, the plaintiffs seek to amend their claims of products liability against the WalMart Defendants to avoid Kentucky’s “Middleman Statute,” KRS § 411.340. In relevant
part, the Middleman Statute provides:
In any product liability action, if the manufacturer is identified and subject to
the jurisdiction of the court, a wholesaler, distributor, or retailer who
distributes or sells a product, upon his showing by a preponderance of the
evidence that said product was sold by him in its original manufactured
condition or package, or in the same condition such product was in when
received by said wholesaler, distributor or retailer, shall not be liable to the
plaintiff for damages arising solely from the distribution or sale of such
product, unless such wholesaler, distributor or retailer, breached an express
warranty or knew or should have known at the time of distribution or sale of
such product that the product was in a defective condition, unreasonably
dangerous to the user or consumer.
KRS § 411.340.

The statute protects those who merely sell a product and have no

relationship to its manufacture or design. See Parker v. Henry A. Petter Supply Co., 165
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S.W.3d 474 (Ky. App. 2005). Defendant Ace Bayou manufactured the allegedly defective
bean bag chair and Wal-Mart comes within the Middleman Statute’s protections.
The plaintiffs’ proposed Amended Complaint alleges that the Wal-Mart Defendants
knew or should have known about the chair’s alleged defect. However, it does not include
specific additional facts that would allow the Court to infer that Wal-Mart had “any special
knowledge to foresee the ultimate danger any better than the average citizen.” Steele v. Ford
Motor Co., No. 05-409-KSF, 2007 U.S. Dist. LEXIS 12543, at *2 (E.D. Ky. Feb. 22, 2007)
(citing Funk v. Wagner Machinery, 710 S.W.2d 860, 862 (Ky. App. 1986)).
The allegations that the plaintiffs seek to add to their Complaint are as follows: (i)
Wal-Mart’s supplier agreement with Ace Bayou afforded Wal-Mart an opportunity to inspect
the manufacturer’s facilities and products for compliance with the law; (ii) the supplier
agreement required Ace Bayou to notify Wal-Mart of any investigation into its products by a
governmental agency; (iii) Wal-Mart previously sold bean-bag chairs that were recalled in
2002; and (iv) the Retail Industry Leaders Association (“RILA”) provides members, such as
the Wal-Mart defendants, with education and information regarding industry products.
[Record No. 26-4, pp. 5-6] The plaintiffs argue that the addition of these allegations would
allow the Court to infer that Wal-Mart knew or should have known of the dangerousness of
the allegedly defective chair in excess of an average buyer.
Kentucky courts are willing to impose liability upon retailers who knew or should
have known at the time of distribution or sale that the product was in a defective condition
and unreasonably dangerous. See, e.g., Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d
50, 60 (Ky. App. 1999). However, the plaintiffs must “[a]t the very least . . . allege some
more specific or special knowledge of dangerousness by the retailer to avoid the protections
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afforded by KRS 411.340.” Weixler v. Paris Co., No. 02-390, 2003 U.S. Dist. LEXIS 444,
at *2 (W.D. Ky. Jan. 2, 2003). The plaintiffs have failed to do so in this case.
First, the plaintiffs allege that Wal-Mart’s supplier agreement with Ace Bayou
“implies” that Wal-Mart had an opportunity to inspect “a specimen of the bean bags before
placing an order.” [Record No. 26-1, p. 5] However, this allegation does not allow the Court
to infer that Wal-Mart had “any special knowledge to foresee the ultimate danger any better
than the average citizen,” as consumers of the product had the same opportunity to inspect
the chair before purchasing it. Steele, 2007 U.S. Dist. LEXIS 12543, at *2. To maintain a
non-frivolous action against a retailer such as Wal-Mart, the plaintiffs must state something
more than that the seller bore the same knowledge as the buyer. See Weixler, 2003 U.S. Dist.
LEXIS at *2. A contrary finding would render the statute’s language superfluous; virtually
any retailer would be subject to liability merely by selling an item.
Similarly, the plaintiffs contend that the supplier agreement between Ace Bayou and
Wal-Mart required Ace Bayou to inform Wal-Mart of any government inquiries or
investigations regarding the products. [Record No. 26-4, p. 5] The proposed Amended
Complaint includes allegations that a similar case should put Wal-Mart on notice of the
allegedly dangerous condition of the chair. [Record No. 26-4, p. 7] Eleven months before
MKS’ death, a child in Texas died after becoming enclosed in an Ace Bayou brand bean-bag
chair. [Record No. 26-1, p. 8] However, the plaintiffs concede that they do not know
whether an investigated was made in the Texas case and further neglect to allege that Ace
Bayou imparted actual or constructive knowledge of any such investigations to Wal-Mart,
stating only that it is “generally the policy” of the Consumer Product Safety Commission to
conduct such investigations. [Id.] To infer special knowledge from these allegations would
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be speculative at best. See Campbell, 600 F.3d at 677 (factual allegations must rise to more
than a speculative level).
The plaintiffs’ third amendment to the Complaint alleges that a 2002 Consumer
Products Safety Commission recall of a bean-bag chair should have put Wal-Mart on notice
of the dangers of defective chairs. [Record No. 26-4, p. 5] However, the connection
between the recall and MKS’s allegedly defective chair is feeble at best. The bean-bag
subject to the 2002 recall was not only manufactured by a different company, but was only
sold in Wal-Mart stores “for several months” in 1999 – three years before the recall. [Record
No. 26-1, p. 7] Allegations of an unrelated line of chairs sold by the retailer thirteen years
previously and recalled ten years before the present tragedy are inadequate for this Court to
impute special knowledge to Wal-Mart.
Finally, the plaintiffs suggest that Wal-Mart’s membership in RILA gave it access to
“specialized knowledge of industry happenings.” [Record No. 26-1, p. 7] The addition of
this allegation does nothing to salvage the claims against the Wal-Mart Defendants, as it
lacks a suggestion that RILA had any information regarding the allegedly defective Ace
Bayou chair and subsequently supplied this information to Wal-Mart. The fact of WalMart’s membership in the association alone does not permit an inference that Wal-Mart had
or should have had special knowledge of any unreasonably dangerous product.
In summary, the plaintiffs’ allegations are insufficient to allow the Court to infer that
Wal-Mart had a reason to know any more than the average citizen that the chair was
dangerous. See Funk, 710 S.W. 2d at 860 (dismissing case against the seller where the
record was “void of any facts from which the court could infer that the distributors should
have been aware of the product’s alleged defect”). Ultimately, a jury may find that the chair
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was unreasonably dangerous or in a defective condition. However, the plaintiffs have failed
to sufficiently allege that Wal-Mart had any special knowledge to foresee such a danger.
Because the Amended Complaint would be futile, the Court will deny the plaintiffs’ motion.
IV.
For the reasons outlined above, it is hereby
ORDERED that the plaintiffs’ motion for leave to amend the Complaint under Fed.
R. Civ. P. 15(a)(2) [Record No. 26] is DENIED.
This 6th day of January, 2015.

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