United States District Court, M.D. Georgia, Athens Division
ROBERT V. GOMEZ, II, KAITLYN ANN WILLE, and JENNIFER PRICE, Plaintiffs,
SCEPTER HOLDINGS, INC., SCEPTER CANADA, INC., SCEPTER MANUFACTURING, LLC, and THE MOORE COMPANY, Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE.
Robert V. Gomez, II, Kaitlyn Ann Wille, and Jennifer Price
allege that they were injured when Gomez poured gasoline from
a Blitz portable gasoline container onto a mostly
extinguished fire and the container exploded. Plaintiffs
contend that the gas container was defective because it did
not have a flame arrestor. The gas container was manufactured
by Blitz U.S.A., which declared bankruptcy in 2011.
Plaintiffs allege that Defendants Scepter Holdings, Inc.,
Scepter Canada, Inc., Scepter Manufacturing, LLC, and The
Moore Company distributed the gas container to Harbor
Freight, where Gomez's mother bought it. Plaintiffs
further allege that Defendants failed to provide an adequate
warning even though they knew the gas container was dangerous
when they distributed it to Harbor Freight. Defendants
contend that Plaintiffs' Amended Complaint must be
dismissed for failure to state a claim. As discussed
below, the Court grants Defendants' motions to dismiss
(ECF Nos. 22 & 23) Counts Two and Four of the Amended
Complaint but denies the motions as to Counts One and Three.
TO DISMISS STANDARD
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).
allege the following facts in support of their claims.
Despite Defendants' protestations to the contrary, the
Court must accept these factual allegations as true for
purposes of the pending motion.
U.S.A. manufactured the gas container at issue in this
action. Am. Compl. ¶ 20, ECF No. 17. Blitz U.S.A. filed
for bankruptcy protection after it was sued by multiple
individuals for injuries caused by its allegedly defective
gas containers. Id. ¶ 28. Defendant Scepter
Holdings, Inc. acquired the assets of Blitz U.S.A. in 2012.
Id. ¶¶ 4, 43-46. There was an asset
purchase agreement between Blitz U.S.A. and Scepter Holdings.
It provided, in relevant part, that when Scepter Holdings
purchased certain assets from Blitz U.S.A., Scepter Holdings
did not assume any “Liabilities arising out of or
related to” certain “Retained Assets” that
Blitz U.S.A. did not sell to Scepter Holdings. Scepter
Defs.' Mot. to Dismiss Ex. 1, Asset Purchase Agreement
¶ 2.4(a), ECF No. 23-2. Those Retained Assets included
“all inventory (raw materials, work-in-progress,
finished goods, or otherwise) used or initially held for use
in connection with” Blitz U.S.A.'s business.
Id. ¶ 2.2(f).
to Plaintiffs, Scepter Holdings, Scepter Canada, Inc., and
Scepter Manufacturing, LLC (collectively,
“Scepter”) nonetheless took possession of
“old Blitz product, including the subject 5-gallon gas
can” when Scepter took possession of Blitz U.S.A.'s
facilities. Am. Compl. ¶¶ 35-36. Scepter decided to
distribute “the leftover Blitz product, including the
subject gas can.” Id. ¶ 37. Scepter
maintained a marketing relationship with The Moore Company,
doing business as Moeller Marine Products, Inc.
(“Moeller”), and Moeller sold Scepter's
products through various channels. Id. ¶¶
14, 30. Moeller's representatives met with
representatives of the retail chain Harbor Freight to discuss
the distribution and sale of Scepter products, including the
leftover Blitz product inventory. Id. ¶¶
32-33, 41. And, after the asset purchase between Scepter
Holdings and Blitz U.S.A. was finalized, Scepter and Moeller
distributed the gas container at issue in this case to Harbor
Freight, where Gomez's mother purchased it in September
2012. Id. ¶¶ 22, 24, 46-49. At the time,
both Scepter and Moeller knew that the Blitz gas containers
were defective but decided to sell them anyway. Id.
¶¶ 22-26, 50-59.
brought claims against Scepter and Moeller for negligence in
selling the gas container and for failure to provide an
adequate warning, including failure to provide an adequate
post-sale warning. Plaintiffs also brought a claim for breach
of warranty, but they withdrew that claim. Defendants'
motions to dismiss Count Two of the Amended Complaint are
seek to dismiss Plaintiffs' claims pursuant to Rule
12(b)(6) as implausible. Defendants do not argue that
Plaintiffs cannot win under the applicable law if they prove
all the facts they allege. Rather, Defendants are incredulous
that anyone could possibly believe Plaintiffs'
allegations. Defendants' argument suffers from what the
Court has previously labeled the
Since Twombly was decided, many lawyers have felt
compelled to file a motion to dismiss in nearly every case,
hoping to convince the Court that it now has the authority to
divine what the plaintiff may plausibly be able to prove
rather than accepting at the motion to dismiss stage that the
plaintiff will be able to prove his allegations. These
motions, which bear a close resemblance to summary judgment
motions, view every factual allegation as a mere legal
conclusion and disparagingly label all attempts to set out
the elements of a cause of action as “bare
recitals.” They almost always, either expressly or,
more often, implicitly, attempt to burden the plaintiff with
establishing a reasonable likelihood of success on the merits
under the guise of the “plausibly stating a
claim” requirement. While these cautious lawyers, who
have been encouraged by Twombly and Iqbal,
have parsed the Twombly decision to extract every
helpful syllable, they often ignore a less well known (or at
least less frequently cited) admonition from
Twombly: “[O]f course, a well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.”
Twombly, 550 U.S. at 556 . . . . Finding the
Twombly/Iqbal urge irresistible, many
lawyers fail to appreciate the distinction between
determining whether a claim for relief is “plausibly
stated, ” the inquiry required by
Twombly/Iqbal, and divining whether actual
proof of that claim is “improbable, ” a feat
impossible for a mere mortal, even a federal judge.
Barker ex rel. U.S. v. Columbus Reg'l Healthcare
Sys., Inc., 977 F.Supp.2d 1341, 1346 (M.D. Ga. 2013).
Court has observed, Twombly and Iqbal did
not rewrite Rule 12(b)(6) or abandon notice pleading. Again,
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.”
Twombly, 550 U.S. at 570; accord Iqbal, 556
U.S. at 678. Here, Defendants' chief argument is that no
one could possibly believe that discovery will reveal
evidence of Plaintiffs' claims. Once more, it is not the
Court's job at this stage in the litigation to divine
whether actual proof of Plaintiffs' claims is unlikely;
“12(b)(6) does not permit dismissal of a well-pleaded