United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A SHAW UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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 ...