United States District Court, E.D. Kentucky, Central Division, Lexington
RED HED OIL, INC., doing business as REDI MART No. 9, et al. Plaintiffs,
THE H.T. HACKNEY CO., et al., Defendants.
MEMORANDUM OPINION & ORDER
M. Hood, Senior U.S. District Judge.
H.T. Hackney Company (“Hackney”) feels left
behind. Hackney, in a move it now regrets, remained on the
sidelines as the Court dismissed five other defendants who
filed a Joint Motion to Dismiss or Judgment on the Pleadings.
[DE 37]. Hackney failed to join that motion. But no matter,
because Hackney has now filed this “me too”
motion, asking the Court for dismissal based on the reasoning
contained in the Court's prior Order. In short, Hackney
asks the Court to act as if Hackney joined its
co-defendants' motion in the first place.
will no longer have to live with regret because even if
Hackney had joined forces with its co-defendants, Hackney
would remain. It cannot tag along for a simple reason: the
analysis that applied to the manufacturing defendants does
not apply to Hackney. And because Hackney's sole argument
is that the Court should dismiss Hackney based on its prior
Order, it cannot be the basis for dismissal. Thus, for the
reasons stated herein, Hackney's Motion for Judgment on
the Pleadings [DE 40] is DENIED.
Facts and Procedural Background
facts of this case have been laid out in the Court's
previous Memorandum Opinion and Order with which all parties
are familiar. A brief recitation of the facts will do.
a products liability case. Plaintiffs Red Hed Oil, Inc.
(“Red Hed”) and Federated Mutual Insurance
Company (“Federated”) claim that defective
e-cigarettes sparked a fire at the Redi-Mart No. 9 store in
Berea, Kentucky in April 2016. [DE 1-1, p. 9, ¶21]. Red
Hed owns the store on which Federated holds a commercial
policy, and sells e-cigarettes, among other products.
[Id. at ¶¶27-28].
purchased the e-cigarettes from Hackney, a distributor and
supplier of grocery products. [Id. at p. 5,
¶4]. If customers did not buy the e-cigarettes before
they expired, Hackney would pick the product up from Red Hed.
[Id. at p. 9, ¶20]. This occurred on bi-weekly
basis. [Id.]. While awaiting pickup, the
e-cigarettes sat in a box in a storage room. [Id.].
Hackney originally obtained the e-cigarettes from several
manufacturers, which Hackney then supplied to Red Hed.
filed this lawsuit in Madison County Circuit Court in March
2017, alleging breach of warranty, failure to warn, defective
manufacture and design, and negligence. [Id. at pp.
16-22]. Plaintiffs made claims against the supplier of the
e-cigarettes (Hackney) and six e-cigarette manufacturers. One
of the “manufacturing defendants, ” Logic
Technology Development LLC (“Logic”), removed the
case to federal court in April 2017 under 28 U.S.C.
§§ 1441 and 1332. [DE 1-1]. Several other
defendants filed answers, but defendant Swisher
International, Inc. (“Swisher”) filed a Motion to
Dismiss for Failure to State a Claim under Rule 12(b)(6)
prior to answering. [DE 12]. Logic, along with three other
manufacturing defendants, joined Swisher's motion.
Manufacturing defendant NJoy did not join the motion as it
filed for Chapter 11 bankruptcy, and the Court stayed this
matter as to NJoy only. [DE 16]. Thus, five manufacturing
defendants submitted the joint motion to dismiss or judgment
on the pleadings.
Court granted the manufacturing defendants' motion in
November 2017. [DE 37]. The thrust of the Court's
reasoning was that Plaintiffs failed to meet the threshold
requirement linking any particular manufacturing defendant to
a defective e-cigarette that caused the fire. [Id.].
Instead, Plaintiffs sued every manufacturing defendant that
could have conceivably been responsible for the
fire. But Plaintiffs never said whose e-cigarettes were in
the store at the time, whose e-cigarette had the defect and
what that defect was, or whose defective e-cigarette caused
the fire. And because Kentucky has not accepted
“alternative liability” and Plaintiffs failed to
plead a “concert of action” among defendants,
Plaintiffs failed to state a claim against the manufacturing
defendants. In short, because Plaintiffs sued six
manufacturing defendants when only one could be responsible,
Plaintiffs merely pled a “possible” cause of
Hackney wants the benefit of the Court's Order. So
Hackney filed its own Motion for Judgment on the Pleadings
[DE 40] making the same argument that the manufacturing
defendants previously made. Indeed, Hackney does not expand
on the Court's prior ruling, but instead points to it and
asks the Court to apply the ruling to Hackney. Plaintiffs
have responded [DE 42] to which Hackney replied [DE 43],
making the matter ripe for review.
Standard of Review
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). A motion for judgment on
the pleadings pursuant to Fed.R.Civ.P. 12(c) is reviewed
under the same standard as a motion to dismiss under
12(b)(6). Coley, 799 F.3d at 536-37; see
also Florida Power Corp. v. FirstEnergy Corp., 810
F.3d 996, 999 (6th Cir. 2015).
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the plaintiff's complaint. The Court views
the complaint in the light most favorable to the plaintiff
and must accept as true all well-pleaded factual allegations
contained within it. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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.'”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that a defendant is liable for
the misconduct alleged.” Id. The
“factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. A “formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. The complaint must contain
either “'direct or inferential allegations
respecting all material elements necessary for recovery under
a viable legal theory.'” D'Ambrosio v.
Marino, 378');">747 F.3d 378, 383 (6th Cir. 2014) (quoting
Philadelphia Indem. Ins. Co. v. Youth Alive, Inc.,
732 F.3d 645, 649 (6th Cir. 2013)).