United States District Court, E.D. Washington
TRACY E. MESECHER, husband; CHARICE A. MESECHER, wife; and MIKAYALA M. REYNOLDS, Plaintiffs,
LOWES COMPANIES, INC, a corporate entity; MONSANTO, a corporate entity; and HD HUDSON MANUFACTURING COMPANY, Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO
ROSANNA MALOUF PETERSON United States District Judge
THE COURT are motions to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) by Defendants Lowe's Companies, Inc.
(“Lowe's”), ECF No. 8, and Monsanto Company
(“Monsanto”), ECF No. 11, without oral argument.
Plaintiffs did not respond to either motion. The hearing date
for Defendant Lowe's motion has passed. Given that
Plaintiffs' deadline to respond to Defendant
Monsanto's motion to dismiss has expired, the Court finds
good cause to expedite hearing of that motion without waiting
for a reply from Defendant Monsanto. See LR
7.1(h)(2)(C). Having reviewed Defendants' filings, the
remaining record, and the relevant law, the Court finds it
appropriate to grant both motions and dismiss Defendants
Lowe's and Monsanto from the case.
the allegations in Plaintiffs' complaint, ECF No. 2-1, as
true, sometime before March 22, 2014, Tracy and Charice
Mesecher bought Roundup herbicide, made by Monsanto, and a
GardenSpray sprayer, manufactured by H.D. Hudson
Manufacturing Company (“Hudson”) at a Lowe's
home improvement store. Plaintiffs claim that both the Roundup
and the GardenSpray were defective at the time of purchase
and that all three Defendants either knew or should have
known of the defect. ECF No. 2-1 at 7. Consequently,
Plaintiffs assert, Plaintiff Charice Mesecher “was
exposed to toxic amounts of Roundup while using it in the
course of performing yard work at the home of the Plaintiffs
while using the GardenSpray sprayer.” Id.
Plaintiffs claim that Ms. Mesecher “sustained serious
life threatening bodily injuries and resultant damages”
that were caused by her exposure to “toxic amounts of
Roundup[.]” ECF No. 2-1 at 7. Plaintiffs allege that
Mr. Mesecher has sustained damages including but not limited
to loss of spousal consortium, and Mikayala Reynolds,
daughter of Ms. Mesecher and a minor at the time of the
incident, sustained damages including but not limited to loss
of parental consortium. Id. at 7-8.
assert a claim for product liability based on an alleged
failure by Defendants Monsanto and Lowe's to adequately
warn consumers purchasing Roundup of its inherently dangerous
nature and alleged failure to “take measures to prevent
injurious exposure to it.” ECF No. 2-1 at 9. Plaintiffs
also allege that all three Defendants “knew or should
have known that the GardenSpray sprayer . . . is inherently
dangerous should it malfunction thereby allowing
inappropriate amounts of toxic Roundup to come into contact
with human beings . . . .” Id. Plaintiffs
further base their product liability claim on allegations
that the products at issue were defectively manufactured, not
reasonably safe in construction, or breached the
manufacturer's express warranty and applicable implied
warranties under Washington state law. Id. at 7, 10.
second claim is for violations under the Washington Consumer
Protection Act (“WCPA”), chapter 19.86, Revised
Code Washington (“RCW”), that “have injured
and continue to injure the business and property of the
consuming public of the State of Washington, including, but
not limited to, the business and property of the
Plaintiffs.” ECF No. 2-1 at 11.
seek to recover unspecified special damages, general damages
for “emotional and mental stress and anguish and for
humiliation and embarrassment[, ]” and treble damages
as allowed by the WCPA. ECF No. 2-1 at 11.
Lowe's and Monsanto have separately moved to dismiss
Plaintiffs' product liability and WCPA claims for failure
to state claims upon which relief may be granted.
Fed.R.Civ.P. 12(b)(6). 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).
When a defendant challenges the sufficiency of a complaint
under Fed.R.Civ.P. Rule 12(b)(6), the court must determine
whether the complaint bears “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). A claim is plausible
when the plaintiff pleads “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. “In sum, for a complaint to survive a
motion to dismiss, the non-conclusory ‘factual content,
' and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to
relief.” Moss v. United States Secret Serv.,
572 F.3d 962, 969 (9th Cir. 2009).
deciding a Rule 12(b)(6) motion to dismiss, a court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
the nonmoving party.” Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008). A court is not required, however, to “assume the
truth of legal conclusions merely because they are cast in
the form of factual allegations.” Fayer v.
Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)
(internal quotation omitted).
effectively abandon their claims against Defendants
Lowe's and Monsanto by failing to respond to
Defendants' motions to dismiss. See Walsh v. Nev.
Dep't of Human Res., 471 F.3d 1033, 1037 (9th Cir.
2006) (where plaintiff did not address arguments in motion to
dismiss, plaintiff “effectively abandoned” the
claim for relief and could not raise the claim on appeal);
Jenkins v. County of Riverside, 398 F.3d 1093, 1095,
note 4 (9th Cir. 2005); see also LR 7.1(d) (a
party's failure to comply with the rules of motion
practice “may be deemed consent to the entry of an
Order adverse to the party who violates these rules.”).
Notwithstanding the fact that Plaintiffs may be deemed to
have abandoned their claims or consented to an adverse ruling
on the motions to dismiss, the Court also considers
Plaintiffs' product liability and Consumer Protection Act
claims on their merits.
Washington Product Liability Act (“WPLA”),
chapter 7.72, RCW, is the exclusive remedy for claims that a
product caused a plaintiff harm. Potter v. Wash. State
Patrol, 165 Wn.2d 67, 87 (Wash. 2008). The WPLA imposes
different standards of liability on product manufacturers and
sellers, with manufacturers generally “held to a higher
standard of liability, including strict liability where
injury is caused by a manufacturing defect or a breach of
warranty.” Johnson v. Recreational Equip.,
Inc., 159 Wash.App. 939, 946 (Wash. App. Div. 1),
petition for rev. denied, 172 Wn.2d 1007 (Wash.
2011) (citing RCW 7.72.030(2)). Conversely, “product
sellers are ordinarily liable only for negligence, breach of
express warranty, or intentional ...