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Mesecher v. Lowes Companies, Inc.

United States District Court, E.D. Washington

February 8, 2018

LOWES COMPANIES, INC, a corporate entity; MONSANTO, a corporate entity; and HD HUDSON MANUFACTURING COMPANY, Defendants.


          ROSANNA MALOUF PETERSON United States District Judge

         BEFORE 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.


         Accepting 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[1] sprayer, manufactured by H.D. Hudson Manufacturing Company (“Hudson”) at a Lowe's home improvement store.[2] 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.

         Plaintiffs 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.

         Plaintiffs' 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.

         Plaintiffs 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.


         Defendants 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).

         In 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).


         Plaintiffs 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.

         Products Liability

         The 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 ...

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