Harvey v. Golden Dragon Sourcing Ltd Corporation et al
ORDER denying 48 Motion to Dismiss without prejudice. Signed by District Judge Sharion Aycock on 2/12/2018. (dbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 1:16-CV-171-SA-DAS
GOLDEN DRAGON SOURCING LTD. CORP.,
SEVENTH AVENUE, INC.,
GUANGDONG KISENSE CO., LTD., and
NATIONAL QUALITY PRODUCTS, LLC
Tonia Harvey filed her Complaint , and Amended Complaint  in this Court seeking
damages from the manufacturer, sellers, and importers of a pressure cooker that she alleges
exploded and injured her. Plaintiff Harvey has not yet served the manufacturer, Guangdong
Kisense Co. The other Defendants, Golden Dragon Sourcing, Seventh Avenue, and National
Quality Products filed a Motion to Dismiss  all of the Plaintiff’s claims against them. In
response, the Plaintiff filed a Second Amended Complaint . In her Second Amended
Complaint, the Plaintiff abandoned four of the five claims she previously asserted.
Discussion and Analysis
The Plaintiff’s sole remaining claim alleges that the pressure cooker was defective. The
crux of the moving Defendants’ argument for dismissal is that the Plaintiff failed to allege a defect
in the product with sufficient specificity as required for such claims under the Mississippi Products
Liability Act, Mississippi Code Annotated § 11-1-63.1
Although the Defendants’ Motion to Dismiss  is styled as a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) they acknowledge that Federal Rule of Civil Procedure 12(c) controls because at least two
Defendants filed Answers prior to the Motion to Dismiss. See Answers [29, 33]. This Court reviews a Rule 12(c)
motion for judgment on the pleadings using the same standards applicable to a Rule 12(b)(6) motion to dismiss for
failure to state a claim. See Phillips v. City of Dallas, 781 F.3d 772, 775–76 (5th Cir. 2015) (citing Gentilello v.
Rege, 627 F.3d 540, 543–44 (5th Cir. 2010)).
A plaintiff’s complaint “must contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.” Phillips v. City of Dallas, Tex., 781 F.3d 772, 775–76
(5th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007))). A claim is facially plausible when the pleaded factual content “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678, 129 S. Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “[P]laintiffs must
allege facts that support the elements of the cause of action in order to make out a valid claim.”
Webb v. Morelia, 522 F. App’x 238, 241 (5th Cir. 2013) (per curiam) (quoting City of Clinton,
Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152–53 (5th Cir. 2010) (internal quotation marks
For a plaintiff to prevail on a design defect claim in Mississippi, she must prove the
following elements, as summarized by the Mississippi Supreme Court, by a preponderance of the
The danger presented by the product’s design was known or should
have been known to the manufacturer [or seller] (i.e., the danger was
foreseeable); (2) the product failed to function as expected (as a
result of a design characteristic); (3) an alternative design existed
that would not impair the product’s usefulness or desirability; and
(4) the alternative design would have to a reasonable probability
prevented the harm.
Phillips 66 Co. v. Lofton, 94 So. 3d 1051, 1060 (Miss. 2012) (quoting Williams v. Bennett, 921 So.
2d 1269, 1274 (Miss. 2006) (internal quotation marks omitted)); MISS. CODE ANN. § 11–1–
63(a)(l)(i), (iii), (f)(i)-(ii).
The Plaintiff’s design defect claim, as plead, satisfies the above standard because she
alleges each element of a design defect claim under the MPLA. The Plaintiff alleges several defects
in the design of the pressure cooker, including defects in the steam release valve, the cooker lid,
and the lid locking mechanism, and that the pressure cooker failed to function as expected. See
Austin v. Bayer Pharms. Corp., No. 5:13CV28, 2013 WL 5406589, at *5 (S.D. Miss. Sept. 25,
2013) (in a design defect claim, plaintiff must identify some defect in design of product to survive
Rule 12(b)(6) motion to dismiss); Adams v. Energizer Holdings, Inc., No. 3:12CV797, 2013 WL
179137 3, at *2 (S.D. Miss. Apr. 19, 2013); Deese v. Immunex Corp., No. 3:11-CV-373-DPJ-FKB,
2012 WL 463722, at *3 (S.D. Miss. Feb. 13, 2012). The Plaintiff also alleges that the defect
proximately caused the injury for which she is seeking recovery. See Adams, 2013 WL 1791373,
at *2 (in a design defect claim, plaintiff must allege that the alleged defect proximately caused the
harm for which recovery is sought); Chatman v. Pfizer, Inc., No. 5:11CV69, 2013 WL 1305506,
at *4 (S. D. Miss. Mar. 28, 2013). Finally, Plaintiff alleges that a feasible design alternative existed
that would have to a reasonable probability prevented the harm. See Adams,2013 WL 1791373, at
*2 (in a design defect claim, plaintiff must allege that a feasible alternative design
exists); Chatman, 2013 WL 1305506, at *4. Because the Plaintiff filed an amended complaint,
curing any potential pleading defects in her original complaint by sufficiently alleging a design
defect claim under Mississippi law, the moving Defendants’ motion to dismiss is denied as moot.
For all of the reasons fully explained above, the moving Defendants’ Motion to Dismiss
 is DENIED as MOOT without prejudice to refiling of the same.
SO ORDERED on this the 12th day of February, 2018.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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