United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter is before the Court on plaintiff Simply Thick, LLC's ("plaintiff") motion to dismiss defendant Thermo Pac, LLC's ("Thermo Pac") counterclaims or, in the alternative, for a more definite statement. Defendant Thermo Pac opposes the motion. The matter is fully briefed and ready for decision. For the following reasons, the Court will grant in part and deny in part plaintiff's motion.
On June 4, 2011, plaintiff announced a voluntary recall of its Simply Thick thickening gel products manufactured at a food processing plant located in Stone Mountain, Georgia. The plant was owned and operated by defendant Thermo Pac.
On May 30, 2013, plaintiff filed a five-count complaint against defendants arising out of the recall. Count I alleges a claim for breach of express warranty, Count II alleges breach of implied warranty, Count III alleges breach of contract, Count IV alleges breach of fiduciary duty, and Count V alleges negligent misrepresentation. In response, defendant Thermo Pac filed a four-count counterclaim. The counterclaim alleges claims against plaintiff for negligence, breach of contract, constructive fraud and unjust enrichment. Plaintiff moves to dismiss all counts of Thermo Pac's counterclaim for failure to state a claim.
On a motion to dismiss, the Court accepts as true the factual allegations contained in the complaint and grants the non-moving party the benefit of all reasonable inferences that can be drawn from those allegations. See Lustgraaf v. Behrens , 619 F.3d 867, 872-73 (8th Cir. 2010). "To survive a motion to dismiss, 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 Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
A. Negligence (Count I)
In Count I of Thermo Pac's counterclaim, it asserts a claim for common law negligence. Plaintiff moves to dismiss this Count, stating Thermo Pac has not pled any facts that would establish a legal duty owed to Thermo Pac by plaintiff, nor has it alleged that plaintiff breached any duty. Thermo Pac responds that because plaintiff developed the formula and manufacturing method for the Simply Thick product, and because Thermo Pac relied on plaintiff's formulation and manufacturing process, a duty arose "to timely and adequately disclose to Thermo Pac all material information relating to the product, including any safety issues relative to the product." (Def. Opp'n at 5).
Under Missouri law, "the first essential element of a claim of negligence" is "the existence of a duty." Leeper v. Asmus, ___ S.W.3d ___, 2014 WL 2190966, at *3 (Mo.Ct.App. May 27, 2014). As Thermo Pac recognizes, a legal duty arises from one of three sources: (1) the legislative branch, (2) a law imposing a duty based on a relationship in which one party must exercise due care to avoid foreseeable injury, or (3) a party assumed a duty based on a contract. Hackmann v. Missouri Am. Water Co. , 308 S.W.3d 237, 239 (Mo.Ct.App. 2009). As to the duty it alleges plaintiff owed, Thermo Pac states, "[Plaintiff] had a duty to timely and adequately inform Thermo Pac of all material information concerning the formulation, manufacturing process, and processing hazards, consumer related complaints, and the risks and hazards relating to the Simply Thick product and its consumption." (Counterclaim at ¶ 20). Thermo Pac alleges this duty arose from the fact that plaintiff developed the formula and manufacturing method for the product, made the determination whether it was safe for human consumption, and represented the safety of the product. (Def. Opp'n at 4-5). Because Thermo Pac relied on plaintiff in these areas, Thermo Pac argues these allegations give rise to a duty of plaintiff to timely and adequately disclose all material information relating to the product, including any safety issues, to avoid foreseeable injury. (Id. at 5).
Accepting the allegations in the counterclaim as true, and drawing all reasonable inferences in favor of Thermo Pac, the Court finds Thermo Pac's claim of negligence plausible on its face. To be cognizable, the duty alleged by Thermo Pac must arise because the law imposes the duty based on the relationship of the parties or because, under the circumstances, plaintiff must exercise due care to its product manufacturer to avoid foreseeable injury. Thermo Pac has alleged that it manufactured plaintiff's Simply Thick product based on plaintiff's formulation and manufacturing process. Thermo Pac states its reliance upon plaintiff's formulation and manufacturing process "give[s] rise to a duty of plaintiff to timely and adequately disclose to Thermo Pac all material information relating to the product, including safety issues." Allegedly, plaintiff had received complaints and warnings from medical professionals regarding the safety of the product, and failed to notify its manufacturer, Simply Thick, thereby failing to exercise due care to avoid foreseeable injury, i.e., the voluntary recall. (Counterclaim at ¶¶ 30-31).
Because the Court finds it plausible under the circumstances that the law would impose a duty on plaintiff to use due care to inform its manufacturer, Thermo Pac, of material information regarding the risks and hazards related to ...