Conner v. W W Industrial Corp. et al

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Menard, Inc.'s Motion to Dismiss (ECF No. 6 ) is DENIED. Signed by District Judge Ronnie L. White on February 9, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES CONNER,
Plaintiff,
vs.
WW INDUSTRIAL CORP. d/b/a
SNIPER TREESTANDS ,
and
MENARD, INC.,
Defendants.

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Case No. 4:16CV1539 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Menard, Inc.' s Motion to Dismiss (ECF No.
6). This matter is fully briefed and ready for disposition.
BACKGROUND 1
On November 7, 2013, Defendant Menards, Inc. ("Menards") sold a tree stand (hereinafter
"Tree Stand"), designed and manufactured by Defendant W W Industrial Corp. d/b/a Sniper
Treestands ("Sniper"), to Plaintiff James Conner. On November 16, 2013, Plaintiff used the Tree
Stand for deer hunting in Oregon County, Missouri . The Tree Stand buckled, causing Plaintiff to
fall and suffer severe injuries.
On September 29, 2016, Plaintiff James Conner filed his Complaint.

(ECF No. 10).

Plaintiff alleges claims against Menards and Sniper for negligence (Count I), for strict liability
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When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state
a claim, the Court must take as true the alleged facts and determine whether they are sufficient to
raise more than a speculative right to relief. Bell At!. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
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(Count II), and under the Missouri Merchandising Practices Act (Count III).
DISCUSSION
Under Missouri statute, a "defendant whose liability is based solely on his status as a seller in
the stream of commerce may be dismissed from a products liability claim" if "another defendant,
including the manufacturer, is properly before the court and from whom total recovery may be had
for plaintiffs claim." Mo. Rev. Stat. §537 .762.1-.2. Menards argues that it should be dismissed
from this action pursuant to this Missouri statute. Menards argues that Plaintiffs claim against
Menards is based solely on Menards' status as a seller in the stream of commerce. Menards
asserts Plaintiff may obtain total recovery for his claims from co-Defendant Sniper, which
manufactured the Tree Stand.
In response, Plaintiff argues that, although there is another defendant (Sniper) in this action, at
this stage of the litigation is it unclear whether Sniper can provide a total recovery for Plaintiffs
claim. (ECF No. 14). That is, the record has not been developed regarding what defenses Sniper
"might raise, whether it is sufficiently insured, or whether it has sufficient assets for Plaintiffs
total recovery." (ECF No. 14, if6). Plaintiff further contends that Section 537.762 is procedural in
nature and does not apply to cases in federal court (ECF No. 14, if7 (citing Drake v. N Am. Phillips
Corp., 204 F. Supp. 2d 1204, 1206 (E.D. Mo. 2002)). Finally, Plaintiff asserts that dismissal is

improper at this stage of the litigation because discovery may establish that Menards is not a "mere
innocent seller in the stream of commerce." (ECF No. 14, if8).
The Court holds that dismissal is premature at this stage of the litigation. As an initial
matter, the Court agrees that Section 537.762 "is a procedural, rather than substantive rule, and it
does not apply in federal court." Stanger v. Smith & Nephew, Inc., No. 4:04CV839HEA, 2005 WL
2333892, at *1 (E.D. Mo. Sept. 21, 2005); Drake, 204 F. Supp. 2d 1204, 1206. Moreover, even if
Section 537.762 were applicable, the Court holds that dismissal is not appropriate at this point.
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Based upon the pleadings, the Court cannot hold as a matter of law that Sniper can provide a total
recovery for Plaintiffs claim.
According! y,
IT IS HEREBY ORDERED that Defendant Menard, Inc. ' s Motion to Dismiss (ECF No.
6) is DENIED.

Dated this 9th day of February, 2017.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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