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Baker v. Fangio Enterprises, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 10, 2018

DEBRA BAKER, Plaintiff,
v.
FANGIO ENTERPRISES, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant Tuesday Morning, Inc.'s (“Tuesday Morning”) motion to dismiss plaintiff's negligent failure to warn and breach of express warranty claims. Plaintiff Debra Baker did not respond to the motion, and the time to do so has expired. For the following reasons, the motion to dismiss, construed as a motion for judgment on the pleadings, will be granted.

         I. Background

         Plaintiff's complaint in this matter is titled Petition for Damages Due to Negligent Design and Sale of Product. The case was filed in the Circuit Court of St. Louis County, Missouri and removed to this Court by Tuesday Morning pursuant to 28 U.S.C. §§ 1332 and 1441.

         Plaintiff alleges that she purchased a defective metal table lamp at Tuesday Morning's retail store located on Manchester Road in St. Louis County on July 15, 2016. Plaintiff alleges that the lamp was designed and manufactured by defendant Fangio Enterprises, Inc. (“Fangio”). Plaintiff alleges that on October 13, 2015, the lamp caused a fire, damaging her house and personal property.[1]Plaintiff further alleges that the lamp was unreasonably dangerous in normal and ordinary use, and was unfit for its intended use as it was defectively manufactured and assembled in such a way as to cause the electrical system to malfunction and cause a fire.

         As to Tuesday Morning specifically, plaintiff alleges:

9. At all times mentioned herein, Defendant Tuesday Morning, Inc., breached its duties to Plaintiff in the following respects:
a. Defendant Tuesday Morning, Inc. sold to Plaintiff the Lamp, which was defective in its design and manufacture, with improper directions for use, and in its failure to warn as to its dangerous proclivities, thereby rendering the product inherently and unreasonably dangerous to those individuals, particularly Plaintiff, who might utilize it in the normal expected fashion as it was utilized by Plaintiff, and particularly by creating an extremely extra-hazardous and unreasonably dangerous condition.
b. Defendant Tuesday Morning, Inc. expressly and impliedly warranted and represented that the Lamp, which it placed into the stream of commerce in the State of Missouri and which it represented to be fit and proper for the uses and purposes intended for the Lamp, including use in Plaintiff's house, was extremely safe and did not constitute a dangerous and hazardous condition to individuals using it, including Plaintiff.
7. [sic] Defendant Tuesday Morning, Inc., breached the express and implied warranties, including a warranty of fitness for use, thereby resulting in serious damage to Plaintiff's house and the contents therein.

Pet. ¶¶ 9-10. Plaintiff provides no additional facts regarding Tuesday Morning's alleged negligent failure to warn or breach of express warranty.

         On May 22, 2018, Tuesday Morning filed both an answer and a motion to dismiss. In its motion to dismiss, Tuesday Morning states that plaintiff's complaint is devoid of specific counts and, as a result, Tuesday Morning “attempted to interpret the language used in the Complaint and concluded that Plaintiff purports to allege several claims against Tuesday Morning, including negligent failure to warn and breach of express warranty.” (Doc. 14 at 1-2). As previously stated, plaintiff did not respond to the motion to dismiss.

         After reviewing the file, the Court was also uncertain as to whether plaintiff was, in fact, asserting claims against Tuesday Morning for negligent failure to warn and breach of express warranty. The Court issued an Order on June 25, 2018 directing plaintiff to “file a Response to Court stating (1) whether her complaint asserts claims against defendant Tuesday Morning, Inc. for negligent failure to warn and breach of express warranty, and (2) if so, does she concede the motion should be granted.” (Doc. 22 at 2).

         On June 27, 2018, plaintiff filed a Response confirming that she does assert negligent failure to warn and breach of express warranty claims against Tuesday Morning, the motion to dismiss is not conceded, and “should the court find it necessary . . . requests leave to file an amended complaint[.]” (Doc. 25). The plaintiff did not attach a proposed amended ...


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