McMahon v. Robert Bosch Tool Corp. et al
Filing
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MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that defendant Lowe's Home Centers, LLC's motion to dismiss Count IV of plaintiff's Amended Complaint is DENIED. [Doc. 12]. Signed by District Judge Charles A. Shaw on 6/19/2018. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFREY MCMAHON,
Plaintiff,
v.
ROBERT BOSCH TOOL CORP, et al.,
Defendants.
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No. 4:18-CV-583 CAS
MEMORANDUM AND ORDER
This diversity matter is before the Court on defendant Lowe’s Home Center, LLC’s
(“Lowe’s”) Motion to Dismiss Count IV of Plaintiff’s Amended Complaint, based on Missouri’s
“innocent seller” statute, § 537.762, Missouri Revised Statutes (2010). Plaintiff has not responded
to the motion to dismiss and the time to do has passed, so the motion is ripe for decision. For the
following reasons, the motion to dismiss will be denied.
I. Background
Jeffrey McMahon in the plaintiff in this action, which arises out of personal injuries Mr.
McMahon suffered while using an allegedly defective Rotozip RZ20 hand-held saw at his home in
St. Louis County, Missouri, when its component handle detached. The saw was manufactured by
defendant Robert Bosch Tool Corporation (“Bosch”) and sold by defendant Lowe’s. In the
Amended Complaint, plaintiff asserts claims against Lowe’s for strict liability–product defect in
Count IV, products liability–negligence in Count V, and negligent supply of dangerous
instrumentality in Count VI. In Count V, plaintiff alleges that Lowe’s failed to use ordinary care
to manufacture and/or design the saw, or to adequately warn of the risk of harm from its defective
handle. In Count VI, plaintiff alleges that Lowe’s supplied the saw for use in the regular course of
business, the saw was dangerous because of specified defects, and Lowe’s knew or had information
from which it should have known of the dangerous condition and risk presented by the saw and
failed to warn plaintiff of it.
II. Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief
“must include sufficient factual information to provide the ‘grounds’ on which the claim rests, and
to raise a right to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d
544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires a
plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Id. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true all of the
allegations contained in a complaint does not apply to legal conclusions, however. Iqbal, 556 U.S.
at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”).
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III. Discussion
Lowe’s moves the Court for an order dismissing it as a party on Count IV under Missouri’s
innocent seller statute, § 537.762.1, Mo. Rev. Stat. Lowe’s submitted with its motion an affidavit
pursuant to the innocent seller statute that states in pertinent part, “Lowe’s is aware of no facts or
circumstances upon which a verdict might be reached against it under Count IV of the Amended
Complaint other than its purported status as an alleged seller in the stream of commerce.” Affidavit
of Pat Martin, Doc. 13-1, ¶ 7.
Missouri’s innocent seller statute provides:
1. 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 as provided in this
section.
2. This section shall apply to any products liability claim in which another
defendant, including the manufacturer, is properly before the court and from whom
total recovery may be had for plaintiff’s claim.
3. A defendant may move for dismissal under this section within the time for filing
an answer or other responsive pleading unless permitted by the court at a later time
for good cause shown. The motion shall be accompanied by an affidavit which shall
be made under oath and shall state that the defendant is aware of no facts or
circumstances upon which a verdict might be reached against him, other than his
status as a seller in the stream of commerce.
4. The parties shall have sixty days in which to conduct discovery on the issues
raised in the motion and affidavit. The court for good cause shown, may extend the
time for discovery, and may enter a protective order pursuant to the rules of civil
procedure regarding the scope of discovery on other issues.
5. Any party may move for a hearing on a motion to dismiss under this section. If
the requirements of subsections 2 and 3 of this section are met, and no party comes
forward at such a hearing with evidence of facts which would render the defendant
seeking dismissal under this section liable on some basis other than his status as a
seller in the stream of commerce, the court shall dismiss without prejudice the claim
as to that defendant.
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6. No order of dismissal under this section shall operate to divest a court of venue
or jurisdiction otherwise proper at the time the action was commenced. A defendant
dismissed pursuant to this section shall be considered to remain a party to such action
only for such purposes.
7. An order of dismissal under this section shall be interlocutory until final
disposition of plaintiff’s claim by settlement or judgment and may be set aside for
good cause shown at anytime prior to such disposition.
Mo. Rev. Stat. § 537.762.
In this diversity action, the Court applies Missouri substantive law and federal procedural
law. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Under Missouri law, § 537.762 has both
procedural and substantive aspects. Gramex Corp. v. Green Supply Co., 89 S.W.3d 432, 445 (Mo.
2002) (en banc). The statute’s substantive aspect provides that a downstream seller–i.e., a defendant
whose liability is based solely on its status as a seller in the stream of commerce–may obtain an
interlocutory order of dismissal from a products liability claim if the seller can show that another
defendant, including the manufacturer, is before the court and the plaintiff can obtain total recovery
against that defendant. Id. at 445; § 537.762.2, Mo. Rev. Stat.; see Sappington v. Skyjack, Inc., 338
F. App’x 551, 553 (8th Cir. 2009) (unpublished per curiam). The substantive relief offered by the
statute is available to a downstream seller only when the more liable defendant is both before the
court and capable of satisfying the claim. § 537.762.2; see Hoffmann v. Empire Machinery & Tools
Ltd., 2011 WL 3355886, at *3 (W.D. Mo. Aug. 3, 2011) (citing cases).
Lowe’s attests through the Martin Affidavit that it did not design, engineer, or manufacture
the saw at issue, and is aware of no facts or circumstances upon which a verdict against it might be
reached, other than its status as a seller in the stream of commerce.
The Court finds that Lowe’s does not meet the substantive requirement of § 537.762.1, which
provides that a “defendant whose liability is based solely on his status as a seller in the stream of
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commerce may be dismissed from a products liability claim as provided in this section.” Mo. Rev.
Stat. § 537.762.1 (emphasis added). Plaintiff alleges two counts of negligence against Lowe’s in
addition to his strict liability claim against it. The innocent seller statute does not apply to actions
against innocent sellers that include independent negligence claims. See McDonald v. Char-Broil,
LLC, 2016 WL 6871275, at *2 (W.D. Mo. Nov. 21, 2016); Riffle v. Frontera Produce Ltd., 2014
WL 5810201, at *4 (W.D. Mo. Nov. 7, 2014); Hoffmann, 2011 WL 3355886, at *3; Platt v. PPG
Indus., Inc., 2010 WL 3733578, at *4 (E.D. Mo. Sept. 10, 2010); Sappington v. Skyjack Inc., 2008
WL 795598, at *3 (W.D. Mo. Mar. 20, 2008), aff’d, 338 F. App’x 551. Because plaintiff alleges
that Lowe’s was independently negligent and is liable for more than its acts as a seller in the stream
of commerce, dismissal is improper.
In addition, Lowe’s does not meet the substantive requirements of § 537.762.2, which
authorizes relief to an innocent seller in “any products liability claim in which another defendant,
including the manufacturer, is properly before the court and from whom total recovery may be had
for plaintiff’s claim.” § 537.762.2, Mo. Rev. Stat. (emphasis added); see Sappington, 338 F. App’x
at 553. “An innocent seller under section 537.762 should not be dismissed unless the injured party
is ensured that another defendant, who is not an innocent seller, is properly before the court and can
satisfy the injured party’s claim.” Malone v. Schapun, Inc., 965 S.W.2d 177, 182 (Mo. Ct. App.
1997); see Dorsey v. Sekisui America Corp., 79 F.Supp.2d 1089, 1091 (E.D. Mo. 1991).
Lowe’s offers no evidence to establish, and does not even assert, that defendant Bosch is
financially able to fully compensate plaintiff for his claims.
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IV. Conclusion
For the foregoing reasons, defendant Lowe’s motion to dismiss Count IV of plaintiff’s
Amended Complaint based on the Missouri innocent seller statute should be denied. The statute is
inapplicable where, as here, the plaintiff pleads an independent claim for negligence, and Lowe’s
also failed to meet the statute’s requirement to establish that total recovery for plaintiff’s claim may
be had from another party properly before the Court.
Accordingly,
IT IS HEREBY ORDERED that defendant Lowe’s Home Centers, LLC’s motion to
dismiss Count IV of plaintiff’s Amended Complaint is DENIED. [Doc. 12]
__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 19th day of June, 2018.
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