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Red Hed Oil, Inc. v. The H.T. Hackney Co.

United States District Court, E.D. Kentucky, Central Division, Lexington

April 18, 2018

RED HED OIL, INC., doing business as REDI MART No. 9, et al. Plaintiffs,
THE H.T. HACKNEY CO., et al., Defendants.


          Joseph M. Hood, Senior U.S. District Judge.

         The 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.

         Hackney 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.

         I. Facts and Procedural Background

         The 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.

         This is 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].

         Red Hed 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. [Id., ¶17].

         Plaintiffs 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.

         This 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 action.

         Now 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.

         II. Standard of Review

         A 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).

         A 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)).

         III. ...

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