1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Brett Harris, Case No. 2:24-cv-01476-CDS-MDC
5 Plaintiff Order Granting Defendant’s Motion to Dismiss 6 v.
7 HSN, Inc., et al., [ECF No. 19]
8 Defendants
9 10 Defendant HSN, Inc. moves to dismiss plaintiff Brett Harris’s amended complaint (ECF 11 No. 18), for failing to state a claim. Mot., ECF No. 19. HSN, Inc. argues that even after Harris was 12 given the opportunity to file an answer to their motion for a more definite statement1 and an 13 amended complaint, Harris fails to cure the pleading deficiencies previously identified by United 14 States Magistrate Judge Maximilliano Couvillier. See ECF No. 19 at 1–2, 9 (citing order granting 15 motion for more definite statement, ECF No. 17)). Harris opposes the motion, arguing that his 16 strict product liability is appropriately pled. See Opp’n, ECF No. 20. The motion is now fully 17 briefed. See Reply, ECF No. 21. For the reasons set forth herein, I grant HSN, Inc.’s motion to 18 dismiss the amended complaint. 19 I. The allegations set forth in the amended complaint. 20 Plaintiff Brett Harris alleges that on or about March 28, 2022, he was using a Bon Appetit 21 7-Quart Electronic Pressure Cooker to make a soup. ECF No. 18 at 2, ¶ 3. When the cooker 22 finished making the soup, Harris let the steam out and then let the cooker sit for several minutes 23 before attempting to open it. Id. Harris opened the pressure cooker without any resistance. Id. It 24 was then that hot soup unexpectedly shot out of the subject pressure cooker, causing Harris to 25 suffer from severe burns to his left arm, left hand, and lower abdomen. Id. at 6, ¶ 33. 26
1 Motion for a more definite statement, ECF No. 6. 1 As a result of this incident, Harris brings claims of strict product liability and negligent 2 product liability against all defendants. See Am. compl., ECF No. 18. Harris further alleges that 3 he used the cooker correctly and that he “did not know or appreciate any potential risk or 4 danger created by the subject pressure cooker’s defect.” Id. at 6, ¶¶ 34–35. Harris alleges that his 5 family received the cooker as a gift from an individual who purchased the subject pressure 6 cooker from defendants “HSN, INC. and/or CONDE NAST PUBLICATIONS, INC.” Id. at 6, ¶ 36. 7 The cooker at issue here, he alleges, was both “defectively designed and manufactured,” 8 identifying the manufacturing and design defendants as “IS APPLIANCES, INC., ZHANJIANG 9 HALLSMART ELECTRICAL APPLIANCE CO. LTD and/or BON APPETIT, INC.” Id. at 7, ¶ 41. 10 Harris claims that he used it because all defendants, including HSN, Inc., concealed the cooker’s 11 defects, failed to warn consumers of the defects, made negligent misrepresentations, failed to 12 remove a product with such defects from the stream of commerce, and negligently designed the 13 cooker, all of which caused the injuries he suffered. Id. at ¶ 43. He further claims that his injuries 14 were the result of his reasonable and foreseeable use of the cooker. Id. 15 II. Legal standard 16 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 17 Laboratory Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is 18 proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim 19 that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). A 20 pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, 21 and although a court must take all factual allegations as true, legal conclusions couched as 22 factual allegations are insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 23 Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic 24 recitation of a cause of action’s elements will not do.” Id. at 545. To survive a motion to dismiss, 25 “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 26 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 1 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. This standard “asks for more than a sheer possibility that a defendant has acted 4 unlawfully.” Id. 5 III. Discussion 6 HSN, Inc. moves to dismiss the amended complaint. ECF No. 19. The crux of HSN, Inc.’s 7 argument is that Harris does not know “where, when, how, or by whom his cooker was 8 purchased,” and that Harris’s allegation that the cooker came from HSN, Inc. is based on his 9 “information and belief” which is insufficient to sustain either claim. Id. at 3–4. I agree. 10 In Nevada, to bring a claim for strict product liability, a plaintiff must “demonstrate that, 11 the product at issue was defective, (2) the defect existed at the time the product left the 12 manufacturer, and (3) the defect caused the plaintiff’s injury.” Ford Motor Co. v. Trejo, 402 P.3d 13 649, 652 (Nev. 2017) (citation omitted). Strict product liability claims may be brought under the 14 theories of defect by failure to warn, defect by design, or defect by manufacturing. Id. at 653. 15 The amended complaint adequately alleges that the cooker was defective and that the 16 cooker caused Harris’s injuries. However, in any product liability claim, a plaintiff must 17 establish a connection between the defendant and the defective product that caused the 18 plaintiff’s injuries. McCullough v. Iovate Health Scis. U.S.A. Inc. (In re Hydroxycut Mktg. & Sales Pracs. 19 Litig.), 2011 U.S. Dist. LEXIS 103818, at *46 (S.D. Cal. Aug. 29, 2011) (citing In re Rezulin Prods. Liab. 20 Litig., 133 F. Supp. 2d 272, 286 n.45 (S.D.N.Y. 2001)). Indeed, Nevada has long held that “public 21 policy demands that the one who places upon the market [a product] in a condition dangerous 22 for use must be held strictly liable to the ultimate user for injuries resulting from such use . . . .” 23 Shoshone Coca-Cola Bottling Co. v. Dolkinski, 420 P.2d 855, 857 (Nev. 1966). And under some product 24 liability theories, defendants in Nevada must be classified as “sellers” to be found liable. Allison v. 25 Merck & Co., 878 P.2d 948, 952 n.1 (Nev. 1994). 26 1 This is where Harris’s strict product liability claim against HSN, Inc. fails. He must 2 allege that HSN, Inc. is responsible in some way for placing the cooker into the market. “A 3 necessary element of a strict products liability cause of action is that it was the defendant who 4 manufactured and placed in the stream of commerce the injury-causing defective product.” Gregg 5 v. R.D. Werner Co., 1997 U.S. Dist. LEXIS 8085, at *5 (S.D.N.Y. June 9, 1997) (citing Healey v. 6 Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601 (1996)). The amended complaint suggests, based on 7 “information and belief”, that HSN, Inc. and “CONDE NAST PUBLICATION, INC.” placed the 8 cooker into the stream of commerce by selling the cooker to an unidentified individual who, in 9 turn, gifted it to Harris and his family. ECF No. 18 at 6, ¶ 36. There is no information regarding 10 when this gift was purchased nor when it was gifted.
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1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Brett Harris, Case No. 2:24-cv-01476-CDS-MDC
5 Plaintiff Order Granting Defendant’s Motion to Dismiss 6 v.
7 HSN, Inc., et al., [ECF No. 19]
8 Defendants
9 10 Defendant HSN, Inc. moves to dismiss plaintiff Brett Harris’s amended complaint (ECF 11 No. 18), for failing to state a claim. Mot., ECF No. 19. HSN, Inc. argues that even after Harris was 12 given the opportunity to file an answer to their motion for a more definite statement1 and an 13 amended complaint, Harris fails to cure the pleading deficiencies previously identified by United 14 States Magistrate Judge Maximilliano Couvillier. See ECF No. 19 at 1–2, 9 (citing order granting 15 motion for more definite statement, ECF No. 17)). Harris opposes the motion, arguing that his 16 strict product liability is appropriately pled. See Opp’n, ECF No. 20. The motion is now fully 17 briefed. See Reply, ECF No. 21. For the reasons set forth herein, I grant HSN, Inc.’s motion to 18 dismiss the amended complaint. 19 I. The allegations set forth in the amended complaint. 20 Plaintiff Brett Harris alleges that on or about March 28, 2022, he was using a Bon Appetit 21 7-Quart Electronic Pressure Cooker to make a soup. ECF No. 18 at 2, ¶ 3. When the cooker 22 finished making the soup, Harris let the steam out and then let the cooker sit for several minutes 23 before attempting to open it. Id. Harris opened the pressure cooker without any resistance. Id. It 24 was then that hot soup unexpectedly shot out of the subject pressure cooker, causing Harris to 25 suffer from severe burns to his left arm, left hand, and lower abdomen. Id. at 6, ¶ 33. 26
1 Motion for a more definite statement, ECF No. 6. 1 As a result of this incident, Harris brings claims of strict product liability and negligent 2 product liability against all defendants. See Am. compl., ECF No. 18. Harris further alleges that 3 he used the cooker correctly and that he “did not know or appreciate any potential risk or 4 danger created by the subject pressure cooker’s defect.” Id. at 6, ¶¶ 34–35. Harris alleges that his 5 family received the cooker as a gift from an individual who purchased the subject pressure 6 cooker from defendants “HSN, INC. and/or CONDE NAST PUBLICATIONS, INC.” Id. at 6, ¶ 36. 7 The cooker at issue here, he alleges, was both “defectively designed and manufactured,” 8 identifying the manufacturing and design defendants as “IS APPLIANCES, INC., ZHANJIANG 9 HALLSMART ELECTRICAL APPLIANCE CO. LTD and/or BON APPETIT, INC.” Id. at 7, ¶ 41. 10 Harris claims that he used it because all defendants, including HSN, Inc., concealed the cooker’s 11 defects, failed to warn consumers of the defects, made negligent misrepresentations, failed to 12 remove a product with such defects from the stream of commerce, and negligently designed the 13 cooker, all of which caused the injuries he suffered. Id. at ¶ 43. He further claims that his injuries 14 were the result of his reasonable and foreseeable use of the cooker. Id. 15 II. Legal standard 16 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 17 Laboratory Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is 18 proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim 19 that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). A 20 pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, 21 and although a court must take all factual allegations as true, legal conclusions couched as 22 factual allegations are insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 23 Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic 24 recitation of a cause of action’s elements will not do.” Id. at 545. To survive a motion to dismiss, 25 “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 26 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 1 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. This standard “asks for more than a sheer possibility that a defendant has acted 4 unlawfully.” Id. 5 III. Discussion 6 HSN, Inc. moves to dismiss the amended complaint. ECF No. 19. The crux of HSN, Inc.’s 7 argument is that Harris does not know “where, when, how, or by whom his cooker was 8 purchased,” and that Harris’s allegation that the cooker came from HSN, Inc. is based on his 9 “information and belief” which is insufficient to sustain either claim. Id. at 3–4. I agree. 10 In Nevada, to bring a claim for strict product liability, a plaintiff must “demonstrate that, 11 the product at issue was defective, (2) the defect existed at the time the product left the 12 manufacturer, and (3) the defect caused the plaintiff’s injury.” Ford Motor Co. v. Trejo, 402 P.3d 13 649, 652 (Nev. 2017) (citation omitted). Strict product liability claims may be brought under the 14 theories of defect by failure to warn, defect by design, or defect by manufacturing. Id. at 653. 15 The amended complaint adequately alleges that the cooker was defective and that the 16 cooker caused Harris’s injuries. However, in any product liability claim, a plaintiff must 17 establish a connection between the defendant and the defective product that caused the 18 plaintiff’s injuries. McCullough v. Iovate Health Scis. U.S.A. Inc. (In re Hydroxycut Mktg. & Sales Pracs. 19 Litig.), 2011 U.S. Dist. LEXIS 103818, at *46 (S.D. Cal. Aug. 29, 2011) (citing In re Rezulin Prods. Liab. 20 Litig., 133 F. Supp. 2d 272, 286 n.45 (S.D.N.Y. 2001)). Indeed, Nevada has long held that “public 21 policy demands that the one who places upon the market [a product] in a condition dangerous 22 for use must be held strictly liable to the ultimate user for injuries resulting from such use . . . .” 23 Shoshone Coca-Cola Bottling Co. v. Dolkinski, 420 P.2d 855, 857 (Nev. 1966). And under some product 24 liability theories, defendants in Nevada must be classified as “sellers” to be found liable. Allison v. 25 Merck & Co., 878 P.2d 948, 952 n.1 (Nev. 1994). 26 1 This is where Harris’s strict product liability claim against HSN, Inc. fails. He must 2 allege that HSN, Inc. is responsible in some way for placing the cooker into the market. “A 3 necessary element of a strict products liability cause of action is that it was the defendant who 4 manufactured and placed in the stream of commerce the injury-causing defective product.” Gregg 5 v. R.D. Werner Co., 1997 U.S. Dist. LEXIS 8085, at *5 (S.D.N.Y. June 9, 1997) (citing Healey v. 6 Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601 (1996)). The amended complaint suggests, based on 7 “information and belief”, that HSN, Inc. and “CONDE NAST PUBLICATION, INC.” placed the 8 cooker into the stream of commerce by selling the cooker to an unidentified individual who, in 9 turn, gifted it to Harris and his family. ECF No. 18 at 6, ¶ 36. There is no information regarding 10 when this gift was purchased nor when it was gifted. There is no information regarding how or 11 why there is information or belief that HSN, Inc. and Conde Nast are responsible for placing the 12 product into the stream of commerce. There is simply insufficient information that would place 13 HSN, Inc. on notice of what it allegedly did or when it did it. Rule 8 “demands more than an 14 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing 15 Twombly, 550 U.S. at 555). Thus, the allegations do not do enough “to raise a right to relief above 16 the speculative level on the assumption that all of the complaint’s allegations are true.” Twombly, 17 550 U.S. at 545. Even accepting the well-pleaded material facts as true, this court cannot 18 determine if HSN, Inc. is an actual manufacturer, distributor, or seller of the cooker. As a result, 19 this claim must be dismissed. 20 Harris’s negligent product liability claim against HSN, Inc. fails for a similar reason. To 21 state a claim for negligence under Nevada law, a plaintiff must allege: (1) the existence of a duty 22 of care; (2) breach of that duty; (3) legal causation; and (4) damages. DeBoer v. Sr. Bridges of Sparks 23 Fam. Hosp., 282 P.3d 727, 732 (Nev. 2012) (citations omitted). Because Harris fails to allege 24 sufficient facts that demonstrate HSN, Inc. placed the cooker into the stream of commerce, he 25 has failed to plausibly allege HSN, Inc. owed Harris a duty of care. Consequently, this claim fails 26 and is dismissed. ITV. Leave to Amend 2 If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by 4|| amendment. DeSoto v. Yellow Freight Sys, Inc., 957 F.2d 655, 658 (9th Cir. 1992). Under Rule 15(a), a 5} court should “freely” give leave to amend “when justice so requires,” and in the absence of a reason such as “undue delay, bad faith or dilatory motive of the part of the movant, repeated 7|| failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing 8|| party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178 (1962). 10 It is difficult to see how Harris can cure the pleading deficiencies identified in this order, especially considering Judge Couvillier’s order granting defendant HSN, Inc.’s motion for a more definite statement. But, because it is not totally clear that amendment would he futile, leave to 13|amend is a granted. Harris is given fourteen days to file a second amended complaint. Conclusion 15 IT IS THEREFORE ORDERED that HSN, Inc.’s motion to dismiss the amended 16]/ complaint [ECF No. 19] is GRANTED without prejudice and with leave to amend. 17 IT IS FURTHER ORDERED that, if the plaintiff elects to do so, he must file his second amended complaint on or before March 13, 2025. This matter is referred to the magistrate judge 19]| for a settlement conference. / } 20 Dated: February 27, 2025 LZ
37 Univ States District Judge 23 24 25 26