United States District Court, W.D. Missouri, St. Joseph Division
FERNANDO J. GAITAN, JR. United States District Judge.
before the Court is Defendant Lowe's Home Centers,
LLC's Motion to Dismiss Counts I and II of
Plaintiff's Petition Pursuant to Mo. Rev. Stat. §
537.762 (Doc. No. 9).
filed the pending action on August 16, 2016, in the Circuit
Court of Platte County. Defendant Char-Broil, LLC, timely
removed the action on September 21, 2016, asserting diversity
alleges that defendants Char-Broil, LLC and Lowe'ss Home
Centers, LLC are responsible for a house fire on
plaintiff's property allegedly caused by a Char-Broil
brand propane gas grill purchased at Lowe's, causing over
$500, 000 in damages. Plaintiff asserts claims for: (1)
Strict liability for product defect against both defendants;
(2) Strict liability for failure to warn against both
defendants; (3) Breach of implied warranty of fitness for a
particular purpose against both defendants; (4) Breach of
implied warranty of merchantability against both defendants;
(5) Breach of express warranty against both defendants; (6)
Negligence against both defendants; and (7) Violation of the
Missouri Merchandising Practices Act against both defendants.
See Doc. No. 1-1.
Lowe's Home Centers, LLC (“Lowe's”) moves
to dismiss Counts I and II (the claims for strict liability
for product defect and failure to warn) under Missouri's
Innocent Seller Statute, R.S.Mo. § 537.762.
Motion to Dismiss (Doc. No.9)
Rule of Civil Procedure 8 requires that a complaint present
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” In order to meet
the standard, and survive a motion to dismiss under Rule
12(b)(6), “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)).
“Twombly and Iqbal did not abrogate
the notice pleading standard of Rule 8(a)(2).”
Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010).
To meet the plausibility standard, “[a] Plaintiff need
only allege facts that permit a reasonable inference that the
defendant is liable, even if the complaint ‘strikes a
savvy judge that actual proof of the facts alleged is
improbable' and recovery ‘very remote and
unlikely.'” Id. at 819 (quoting Braden
v. Wal-Mart Stores, 588 F.3d 585, 594 (8th
Lowe's moves the Court for an order dismissing it as a
party on Counts I and II under Missouri's Innocent Seller
statute, R.S. Mo. § 537.762.
537.762 provides that 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: “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.” R.S.Mo. § 537.762.2.
Defendant Lowe's has attached an affidavit pursuant to
the Innocent Seller statute indicating that it is aware of no
facts or circumstances upon which a verdict might be reached
against it as to Counts I and II, other than as a seller in
the stream of commerce.
responds that the Innocent Seller statute does not apply in
cases where independent negligence claims are pled. See
Platt v. PPG Indus., Inc., No. 4:10-CV-874 CAS, 2010 WL
3733578, *4 (E.D. Mo. Sept. 20, 2010). See also Dorsey v.
Sekisui American Corp., 79 F.Supp.2d 1089, 1091 (E.D.
Mo. 1999) (noting that the purpose of the statute is to
dismiss a seller at an early stage, sparing the seller from
engaging in costly discovery and eliminating the need to seek
indemnification from the manufacturer after litigation is
complete); Spears v. Bayer Corp., No.
03-1151-CV-W-GAF, 2004 WL 7081940, at *3 (W.D. Mo. Mar. 29,
2004) (indicating that in order for the Innocent Seller
statute to apply, the defendant must “establish that
its potential liability is based entirely on its status as a
seller”); Riffle v. Frontera Product Ltd., No.
13-CV-0791-FJG, 2014 WL 5810201, at *4 (W.D. Mo. Nov. 7,
2014) (indicating that where a negligence claim has been
alleged, the Innocent Seller statute was inapplicable);
Sappington v. Skyjack Inc., No. 04-5076-CV-SW-FJG,
2008 WL 795598, at *3 (W.D. Mo. Mar. 20, 2008) (same). Here,
plaintiff alleges that the grill was assembled negligently by
Lowe's employees. Therefore, plaintiff states that
because the Innocent Seller statute does not change the
substantive law relating to an innocent seller's
liability (see Dorsey, 79 F.Supp.2d at 1091), there
is no point in dismissing Counts I and II at this time.
consideration, the Court DENIES Lowe's motion to dismiss
(Doc. No. 9). The Court must consider the well-pled
allegations of plaintiff's complaint when considering
whether plaintiff has pled an independent claim for
negligence. Here, as discussed by plaintiff, such a claim has