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KSH Properties, Inc. v. PC Marketing, Inc.

United States District Court, W.D. Washington, Tacoma

April 17, 2014

KSH PROPERTIES, INC., et al., Plaintiffs,
v.
PC MARKETING, INC., Defendant. PC MARKETING, INC., Third-Party Plaintiff,
v.
B&B TANS, LLC, Third-Party Defendant.

ORDER GRANTING THIRD-PARTY DEFENDANT'S MOTION TO DISMISS

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Third-Party Defendant B&B Tans, Inc.'s ("B&B") motion to dismiss the third-party complaint (Dkt. 18). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On November 22, 2013, Plaintiffs KSH Properties, Inc. ("KSH") and Beans and Leaves, LLC ("B&L") filed suit against Defendant PC Marketing, Inc. ("PCM"), asserting products liability claims, subject to the Washington Product Liability Act ("WPLA"), RCW 7.72, et seq., alleging that PCM should be held liable to the standard of a product manufacturer, and alleging PMC designed, manufactured and sold a tanning bed that was defective. See Dkt. 1 at ¶¶ 4.1-4.9. Additionally, KSH and B&L allege that PCM engaged in unfair and deceptive acts and practices in trade or commerce in violation of the Washington Consumer Protection Act ("WCPA"), RCW 19.86.020, because PCM advertised and sold a tanning bed that did not meet established testing and safety standards for electrical devices of that type. Id. at ¶¶ 4.10-4.13.

On January 22, 2014, PCM filed an answer and a third-party complaint against B&B. Dkt. 9. On February 20, 2014, B&B filed a motion to dismiss the complaint against them. Dkt. 18. On March 10, 2014, PCM responded in opposition. Dkt. 20. On March 14, 2014, B&B filed a reply in support of its motion. Dkt. 22. On March 19, 2014, PCM filed a surreply. Dkt. 25. On March 20, B&B filed objections to PMC's surreply, asking the Court to disregard it. Dkt. 26.

II. FACTUAL BACKGROUND[1]

PCM alleges that B&B is liable for the tanning bed fire that spread to and damaged different business. Prior to January 8, 2012, B&B purchased various sun simulation lamps for use in its tanning beds at the Desert Sun Tanning Salon located in a commercial building at 9995 Silverdale, Kitsap County, Washington, commonly known as the "Towne Centre." Dkt. 9 at 9, ¶ 6. Prior to, and including January 8, 2012, B&B, by and through its principals, officers, agents, and/or employees, installed the sun simulation lamps in some or all of its tanning beds at the Desert Sun Tanning Salon located in the Towne Centre. Id., ¶ 7. Prior to, and including January 8, 2012, B&B purchased, installed, controlled, and maintained the sun simulation lamps used in the P90 tanning unit at issue in this litigation. Id., ¶ 8. On January 8, 2012, a fire started at B&B d/b/a the Desert Sun Tanning Salon. KHS and B&L allege that the fire originated in the P90 tanning unit purchased and maintained by B&B. Id., ¶ 9. PCM alleges that a sun simulation lamp was improperly installed and/or maintained in a P90 tanning bed by B&B principals, officers, agents and/or employees, who caused or contributed to the fire. Id., ¶ 10. The January 8, 2012, fire damaged the P90 tanning bed at issue, the tanning salon, and other businesses and property located in the Towne Center. Id., ¶ 11.

PCM alleges B&B was negligent in its use and maintenance of the P90 tanning bed at its tanning salon, and B&B failed to train its principals, officers, agents, and/or employees regarding the P90 tanning bed. Id., ¶¶ 12-13. According to PCM, B&B's failures caused a fire at its tanning salon, which spread to other units and caused damage. Id., ¶ 14.

III. DISCUSSION

In B&B's motion, they argue that PCM has no cognizable claim in contract, negligence or for contribution or equitable indemnity against B&B. See Dkt. 18. However, in PCM's response, it makes clear that it is not pursuing claims for contract, direct negligence or contribution against B&B. See Dkt. 20 at 6. Rather, PCM maintains that it has only made a claim for equitable indemnity against B&B. Id. With that concession by PCM, the Court addresses only B&B's contention that PCM does not have a cognizable legal claim for equitable indemnity against B&B. See Dkt. 22.

A. Motion to Dismiss Standard

Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed factual allegations but must provide the grounds for entitlement to relief and not merely a "formulaic recitation" of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974.

In the event a court finds that dismissal is warranted, the court should grant the plaintiff leave to amend unless amendment would be futile. Eminence Capital, LLC v. ...


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