United States District Court, M.D. Georgia, Columbus Division
TORRIE A. WILLIAMSON, Plaintiff,
WALMART STORES, INC.; WALMART STORES EAST, L.P.; KINDERHOOK INDUSTRIES II, L.P.; KINDERHOOK INDUSTRIES, LLC; KINDERHOOK CAPITAL FUND II, L.P.; and HOME DEPOT USA, INC. Defendants.
CLAY D. LAND, Chief District Judge.
Plaintiff Torrie A. Williamson was seriously injured when a plastic gas container she was using near a fire exploded. Williamson asserts various product liability claims against Defendants Walmart Stores, Inc. and Walmart Stores East, L.P. (collectively, "Wal-Mart"); Defendants Kinderhook Industries II, L.P., Kinderhook Industries, LLC, and Kinderhook Capital Fund II, L.P. (collectively, "Kinderhook Defendants"); and Defendant Home Depot USA, Inc. Presently pending before the Court are Defendants' motions to dismiss the First Amended Complaint. For the reasons set forth below, all three motions (ECF Nos. 36, 37, & 38) are granted in part and denied in part.
MOTION TO DISMISS STANDARD
"To survive a motion to dismiss" under Federal Rule of Civil Procedure 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)). The complaint must include sufficient factual allegations "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In other words, the factual allegations must "raise a reasonable expectation that discovery will reveal evidence of" the plaintiff's claims. Id. at 556. "Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because it strikes a savvy judge that actual proof of those facts is improbable.'" Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
Williamson contends that the Court should not consider several arguments presented in Defendants' current motions to dismiss. After Defendants filed motions to dismiss Williamson's original Complaint, Williamson filed a First Amended Complaint, and the Court found the motions to dismiss the original Complaint moot in light of the amendment. Citing Federal Rule of Civil Procedure 12(g)(2), Williamson argues that the Court should not consider any defense that Defendants did not make in their motions to dismiss her original Complaint if those defenses could have been raised at that time. Under Rule 12(g)(2), a party that makes a motion under Rule 12 "must not make another motion... raising a defense or objection that was available to the party but omitted from its earlier motion" unless another motion is permitted under Rule 12(h)(2) or (3). Fed.R.Civ.P. 12(g)(2). Although Rule 12(h)(1) provides that certain defenses are waived if they are not raised in an initial answer or motion to dismiss, Rule 12(h)(2) permits a motion to dismiss for failure to state a claim upon which relief may be granted to be raised "by a motion under Rule 12(c)... or at trial." Fed.R.Civ.P. 12(h)(2)(B)-(C). The only "new" defenses here are additional arguments that Williamson's First Amended Complaint fails to state a claim. Instead of requiring the parties to litigate a Rule 12(c) motion after the pleadings are closed, the Court will decide the issues now; there is no reason to delay the inevitable on Williamson's claims that must be dismissed for failure to state a claim.
Williamson alleges the following facts in support of her claims. The Court must accept these allegations as true for purposes of the pending motions to dismiss.
On December 2, 2012, Williamson was using a plastic gas container near a fire when the gas container exploded and caused her serious injuries. The container was manufactured by Blitz USA, Inc., a corporation indirectly owned by Kinderhook Capital Fund II, L.P. that is now defunct and bankrupt. Williamson alleges that Wal-Mart and the Kinderhook Defendants controlled the design of the container. Williamson believes that the container was purchased at a Georgia Wal-Mart, Home Depot, or Ace Hardware. 1st Am. Compl. ¶ 17, ECF No. 32. She alleges that Wal-Mart "likely" sold the container that caused her injuries. Id. ¶ 26; accord id. ¶ 46. She also alleges that the Kinderhook Defendants, "Wal-Mart, Home Depot and/or [Ace Hardware] distributed or sold the Blitz gas container at issue or sold the market share of such containers in the state of Georgia." Id. ¶¶ 89, 153, 161. "In the alternative, " Williamson alleges that "the gas container at issue in this lawsuit was purchased at Home Depot." Id. ¶¶ 154, 161. Based on these allegations, Plaintiff asserts the following claims:
1. Design defect and failure to warn claims against Wal-Mart (Counts 1 and 2) and the Kinderhook Defendants (Counts 3, 4, and 6) as manufacturers under strict liability and negligence theories.
2. Failure to retrofit/recall claims against all Defendants (Counts 2, 4, and 8).
3. Claim against all Defendants under the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq . (Count 5)
4. Failure to warn claims against Wal-Mart and Home Depot as product sellers (Count 7).
I. Manufacturer Liability Claims against Wal-Mart
Williamson asserts design defect and failure to warn claims against Wal-Mart under strict liability and negligence theories based on Wal-Mart's alleged role as a designer of the gas container. 1st Am. Compl. ¶¶ 44-85. Wal-Mart does not argue that Williamson's First Amended Complaint completely fails to state a claim against Wal-Mart under these theories. Rather, Wal-Mart objects to three paragraphs in the First Amended Complaint, arguing that Williamson is trying to assert claims in addition to her design defect and failure to warn claims and that Williamson did not plead these claims with sufficient particularity. At the hearing on the motion to dismiss, Williamson conceded that she is not asserting any manufacturer liability claims against Wal-Mart other than her design defect and failure to warn claims. To the extent her First Amended Complaint could be construed to assert other claims, those claims are dismissed.
II. Manufacturer Liability Claims against the Kinderhook Defendants
Williamson asserts design defect and failure to warn claims against the Kinderhook Defendants under strict liability and negligence theories based on their alleged role as designers of the gas container. The Kinderhook Defendants contend that they are not subject to personal jurisdiction in Georgia because they are Delaware entities with a primary place of business in New York. Williamson argues that they are subject to personal jurisdiction because the Kinderhook Defendants controlled the design of the gas container, which was sold in Georgia, and because Kinderhook Defendants owned and controlled Blitz USA, which manufactured the gas container.
For the Court to exercise personal jurisdiction over the Kinderhook Defendants, jurisdiction must be appropriate under Georgia's long-arm statute and under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257-58 (11th Cir. 2010). Georgia courts may exercise personal jurisdiction over nonresident defendants who, "in person or through an agent" transact "any business within" Georgia or who commit "a tortious injury in [Georgia] caused by an act or omission outside [Georgia], " but only if the defendant "regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered" in Georgia. O.C.G.A. § 9-10-91(1), (3). And under the Due Process Clause, Georgia courts may exercise personal jurisdiction over defendants "who have established certain minimum contacts with [Georgia] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Diamond Crystal, 593 F.3d at 1267 (internal quotation marks omitted).
The Kinderhook Defendants do not appear to dispute that Blitz USA, which manufactured the gas container at issue in this case, transacted business in Georgia and had sufficient contacts with Georgia to make personal jurisdiction over Blitz USA appropriate. The question for the Court is whether Williamson alleged enough to show that personal jurisdiction over the Kinderhook ...