Robinson v. BigMouth, Inc. et al

Filing 27

MEMORANDUM ORDER Granting 12 Motion to Dismiss for Failure to State a Claim; Granting 20 Motion to Dismiss for Failure to State a Claim. Signed by Judge Richard D. Bennett on 9/26/2017. (c/m 9/26/17 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KEVIN ROBINSON,
*
Plaintiff,
*

v.

Civil Action No. RDB-17-1730

*
BIG MOUTH, INC., et al.,
*

Defendants.
*
*
*

*
*

*
*
*
*
*
MEMORANDUM ORDER

*

*

*

Plaintiff Kevin Robinson (“Plaintiff” or “Robinson”) filed this action pro se against
Defendants Big Mouth, Inc. (“Big Mouth”) and Amazon.Com, Inc. (“Amazon”)
(collectively, “Defendants”) relating to toilet paper manufactured with the image of former
President Barack Obama. (ECF No. 2.) Presently pending before this Court are Defendants’
Motions to Dismiss. (ECF Nos. 12, 20.) The parties’ submissions have been reviewed and
no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, the
Defendants’ Motions to Dismiss (ECF Nos. 12, 20) are GRANTED.1
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Rule 12(b)(6) authorizes the dismissal of a complaint if it fails to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The United States
Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167
L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868

1 In Plaintiff’s Response to Defendants’ Motions to Dismiss (ECF No. 24), he raises for the first time claims
under Federal Obscenity laws. Because these claims were not included in the Complaint, they are not properly
before this Court.

1

(2009) “require that complaints in civil actions be alleged with greater specificity than
previously was required.” While a court must accept as true all factual allegations contained
in the complaint, legal conclusions drawn from those facts are not afforded such deference.
Iqbal, 556 U.S. at 678. Although a pro se plaintiff’s pleadings are “to be liberally construed”
and are “held to less stringent standards than formal pleadings drafted by lawyers,” Erickson
v. Pardus, 551 U.S. 89, 94 (2007), even a pro se litigant’s complaint must be dismissed if it does
not allege a “plausible claim for relief.” Iqbal, 556 U.S. at 679.
Plaintiff’s negligence and strict products liability claims against Defendants stem from
Plaintiff observing toilet paper with former President Barack Obama’s image while at his
place of work. (Compl., ECF No. 2 at ¶ 4.) Plaintiff claims to have suffered a panic attack
when he reported the toilet paper to his employer’s Equal Employment Opportunity and
Human Resource representatives. (Id.) In addition, when he reported the toilet paper to the
United States Coast Guard, the Coast Guard found Plaintiff’s reaction to be “extreme” and
“hurt his credibility.” (Id.) Plaintiff claims this incident “was the catalyst for [his]
termination” and “[a]s a direct result of the workplace panic [he] has sustained economic
hardship, including damage to his reputation, as well as emotional trauma.” (Id.)
Plaintiff’s claims, however, fail to show a “product” that injured him. Maryland’s
statute, along with the Restatement (Third) of torts, similarly define “product” as “tangible.”
Md. Code Ann., Cts. & Jud. Proc. § 5-405 (West) (“any tangible article, including
attachments, accessories and component parts, and accompanying labels, warnings,
instructions, and packaging”); Restatement (Third) of Torts: Prod. Liab. § 19 (1988) (“A
product is tangible personal property distributed commercially for use or consumption.”).
2

Plaintiff’s claims are that an image placed on a product, and not the product itself, injured
him. Negligence and strict products liability law does not recognize a cause of action for
alleged harm stemming from an intangible expression. See Jones v. J.B. Lippincott Co., 694 F.
Supp. 1216, 1217 (D. Md. 1988) (“No case has extended [products liability theories] to the
dissemination of an idea or knowledge in books or other published material.”); Winter v. G.P.
Putnam’s Sons, 938 F. 2d 1033, 1034 (9th Cir. 1991) (“The language of products liability law
reflects its focus on tangible items. . . . [W]e decline to expand products liability law to
embrace the ideas and expression in a book.”).
Plaintiff also brings a breach of warranty claim against Defendants. Under Maryland
law, an express warranty exists where there is an “affirmation of fact or promise made by the
seller to the buyer which relates to the goods and becomes part of the basis of the
bargain.” Md. Code Ann., Com. Law § 2–313(1)(a). Plaintiff expressly states, however, that
he “was not the purchaser” of the toilet paper. Absent a showing of personal injury, privity
is a required element for an express warranty claim. H & M Co. v. Tech. Heat Transfer Servs.,
Inc., No. CIV.A. TDC-14-1518, 2015 WL 1472000, at *4 (D. Md. Mar. 30, 2015) (citing
Copiers Typewriters Calculators, Inc. v. Toshiba Corp., 576 F. Supp. 312, 322 (D. Md. 1983)).
Accordingly, IT IS HEREBY ORDERED this 26th day of September, 2017, that
Defendants’ Motions to Dismiss (ECF No. 12, 20) are GRANTED and it is FURTHER
HEREBY ORDERED that these Dismissals be WITH PREJUDICE, and the Clerk of this
Court is instructed to CLOSE THIS CASE.
___/s/______________________
Richard D. Bennett
United States District Judge
3