United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
plaintiff's complaint alleges products liability claims
premised on theories of negligence, failure to warn, and
breach of warranty regarding an infrared quartz space heater
sold by defendant Chaina Wholesale, Inc., by and through
defendant Amazon.com, Inc's website. Filing 1. Defendant
Amazon.com moves for dismissal pursuant to Fed.R.Civ.P.
12(b)(6) arguing that the plaintiff failed to state a claim
upon which relief can be granted regarding all asserted
theories. Filing 6. For the reasons that follow, the Court
will grant in part and deny in part Amazon.com's motion.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, a complaint must
set forth a short and plain statement of the claim showing
that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2).
This standard does not require detailed factual allegations,
but it demands more than an unadorned accusation.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint must provide more than labels and conclusions; and
a formulaic recitation of the elements of a cause of action
will not suffice. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007).
complaint must also contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. Iqbal, 556 U.S. at 678. A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. Where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
shown-that the pleader is entitled to relief. Id. at
assessing a motion to dismiss, a court must take all the
factual allegations in the complaint as true, but is not
bound to accept as true a legal conclusion couched as a
factual allegation. Twombly, 550 U.S. at 555. The
facts alleged must raise a reasonable expectation that
discovery will reveal evidence to substantiate the necessary
elements of the plaintiff's claim. See Id. at
545. The court must assume the truth of the plaintiff's
factual allegations, and a well-pleaded complaint may
proceed, even if it strikes a savvy judge that actual proof
of those facts is improbable, and that recovery is very
remote and unlikely. Id. at 556.
motion to dismiss under Rule 12(b)(6) tests only the
sufficiency of the allegations in the complaint, not the
sufficiency of the evidence alleged in support of those
allegations. Stamm v. Cty. of Cheyenne, Neb., 326
F.Supp.3d 832, 847 (D. Neb. 2018); Harrington v. Hall
Cty. Bd. of Supervisors, No. 4:15-CV-3052, 2016 WL
1274534, at *4 (D. Neb. Mar. 31, 2016).
plaintiff is a domestic non-profit located in Omaha,
Nebraska, and provides legal services to disadvantaged
individuals. Filing 1 at 1. Defendant Chaina Wholesale, Inc.
is a foreign corporation, incorporated in California, and for
the purposes of this matter, is engaged in the business of
selling or distributing DLux Infrared Quartz Space Heaters.
Filing 1 at 1-2. The space heater's manufacturer is
alleged to be a Chinese company not subject to service in the
state of Nebraska. Filing 1 at 3. Defendant Amazon.com, Inc.
is a Delaware corporation with its principal place of
business in Seattle, Washington. Filing 1 at 2. The plaintiff
alleged that on September 23, 2016, it purchased one of
Chaina's DLux Infrared Quartz Space Heaters by and
through Amazon.com, and that the space heater was delivered
to the plaintiff's place of business in packaging bearing
Amazon.com's logo. On or about February 19, 2018, a fire
broke out in the plaintiff's leased suite. Filing 1 at 3.
The cause of the fire was the DLux Infrared Quartz Space
Heater. Id. The fire resulted in damages exceeding
$783, 000.00. Filing 1 at 4.
plaintiff alleged that Amazon.com "implicitly
represented" that the Chaina space heater was safe by
listing it on its website where thousands of other items are
sold, including Amazon products, and where there exists a
procedure for returns. Filing 1 at 2. Amazon.com, according
to the plaintiff, affirmatively represented that Chaina's
space heater had "overheat protection" and a
"plastic housing which stays room temperature to the
touch." Filing 1 at 3. Further, Amazon.com
"promoted" the space heaters, thus implying that
the representations regarding the space heater's quality
and safety features are Amazon.com's statements. Filing 1
plaintiff alleged that Amazon.com's affirmative
representations were materially false. Testing of
Chaina's space heater showed that there was no overheat
protection, and no temperature limiting controls such as a
thermal cut-out or high-limit thermostat. Testing also
revealed that the enclosure construction was inadequate, and
the plastic housing would not remain at room temperature
during use. Id. The plaintiff alleged that Chaina
and Amazon.com knew or should have known that the space
heater was dangerous, not only because of the product's
design flaws, but because of consumer complaints and media
reports. Filing 1 at 6.
plaintiff alleged that Amazon.com played a direct role in the
sale and distribution of the space heater. Amazon.com
receives a promise of indemnification, and collects fees
(which it sets) for the use of its distribution website from
vendors such as Chaina, and other importers and China-based
manufacturers. Filing 1 at 2. Further, Amazon.com reserves
the right to refuse to sell any such products. The plaintiff
alleged that Amazon.com had a duty to exercise reasonable
care in the sale and distribution of the space heater, but
instead promoted, sold and distributed the space heater in a
defective condition. Filing 1 at 4-5. According to the
plaintiff, Amazon.com, as the promoter, seller and
distributor of the space heater, had a duty to warn users of
the space heater's inherent risks. Filing 1 at 5.
Finally, the plaintiff alleged that Amazon.com's conduct
breached an express warranty, and also breached implied
warranties of fitness and merchantability. Filing 1 at 5-6.