McCarthy v. Amazon.com, Inc.

679 F.Supp.3d 1058

Nicolas MCCARTHY, et al., Plaintiffs, v. AMAZON.COM, INC., Defendant.

CASE NO. C23-0263JLR

United States District Court, W.D. Washington, at Seattle

Signed June 27, 2023

Carrie Goldberg, Pro Hac Vice, Hannah Claire Meropol, Pro Hac Vice, Naomi Leeds, Pro Hac Vice, CA Goldberg PLLC, Brooklyn, NY, Corrie Johnson Yackulic, Corrie Yackulic Law Firm, PLLC, Seattle, WA, for Plaintiffs.

Gregory F. Miller, Perkins Coie, Seattle, WA, Steven G. Williamson, Pro Hac Vice, Perkins Coie, Los Angeles, CA, for Defendant Amazon.com Inc.

ORDER

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

Before the court is Defendant Amazon.com, Inc.'s ("Amazon") motion to dismiss Plaintiffs Nicholas McCarthy, Martinique Maynor, Laura Jónsson, and Steinn Jónsson's (collectively, "Plaintiffs")¹ amended complaint for failure to state a claim. (MTD (Dkt. # 47); Reply (Dkt. # 54).) Plaintiffs oppose the motion. (Resp. (Dkt. # 50).) The parties also filed supplemental briefing at the direction of the court. (Pls. Supp. (Dkt. # 57); Def. Supp. (Dkt. # 58); see also 5/4/23 Min. Order (Dkt. # 56).) The court has considered the motion, all materials submitted in support of and in opposition to the motion, and the governing law. Being fully advised,² the court GRANTS Amazon's motion to dismiss and DISMISSES Plaintiffs' amended complaint.

II. BACKGROUND

Below, the court discusses the relevant factual and procedural background.

A. Factual Background

This case arises from the death by suicide of two teenagers, Ethan McCarthy and Kristine Jónsson, caused by intentionally ingesting sodium nitrite manufactured and sold by a third party on Amazon's website. (See generally Am. Compl. (Dkt. # 15).) Sodium nitrite is a "water soluble . . . yellowish crystalline powder." (Id. ¶ 130.) It is used "mainly as a corrosion inhibitor . . . , an antidote to cyanide poisoning, and as a microbial." (Id. ¶ 131.) At a diluted level, sodium nitrite can be found in food preservatives. (Id. ¶ 135.) Where sodium nitrite exceeds 95% purity, it is considered a "reagent chemical," and a trace amount can "make a person extremely ill." (Id. ¶¶ 135-36.) "When sodium nitrite is used for suicide, it is mixed with a glass of water and consumed orally"; "[o]ne gulp" is, according to Plaintiffs, enough to kill an individual. (Id. ¶ 132.)

The sodium nitrite at issue in this case was sold by Loudwolf, Inc. ("Loudwolf"), a third-party seller of industrial chemicals on Amazon. (Id. ¶¶ 90, 96.) Loudwolf sold the sodium nitrite under its own brand name on Amazon.com at 99.6% purity, rendering it a reagent grade chemical. (Id. ¶¶ 95, 97 (alleging that sodium nitrite has "no non-institutional or household use" at this purity level).) The Loudwolf Sodium Nitrite (the "Sodium Nitrite") sold on Amazon.com was labeled as being "suitable for most experimental and analytical applications, as well as many technical and household purposes." (Id. ¶ 98.) However, the label also directed users to "do [their] own research regarding its application to [their] specific purpose." (Id. (including the words "INDUSTRIAL & SCIENTIFIC" on the top of the bottle).) The label warns that the Sodium Nitrite is a "high purity, reagent grade chemical" and is toxic. (Id. ¶ 98.) It also includes the warning: "HAZARD Oxidizer. Irritant." (Id. ¶ 99.) The label did not, as Plaintiffs claim, warn users of "how deadly the product is or how to reverse the effects." (Id.; see also id. ¶ 101 (alleging that "[n]either the product label nor the Amazon product page for Loudwolf Sodium Nitrite mentioned a proven antidote to suicide attempts via [s]odium [n]itrite").)

According to Plaintiffs, in recent years, sodium nitrite has "become a highly recommended suicide method on the pro-suicide website Sanctioned Suicide." (Id. ¶¶ 139-40 ("Sanctioned Suicide specifically recommends [s]odium [n]itrite as an effective method of completing a suicide that is cheap and easy and . . . difficult for family members and professionals to stop.").) Sanctioned Suicide and its users allegedly recommend that individuals purchase sodium nitrite from Amazon.com and Loudwolf. (Id. ¶¶ 141-42, 116.) Sanction Suicide's website also "provides threads of instructions specifying dosages and methods of dissolving the substance in water prior to consumption" and "recommends supplementing the [s]odium [n]itrite with antacid medication like Tagamet to ensure the poison can be digested without vomiting." (Id. ¶ 143.)

Plaintiffs allege that Amazon has "received dozens of notices that its various brands of [s]odium [n]itrite were being used for suicide, dating back to at least 2018." (Id. ¶¶ 102, 110, 115, 11.) Despite these notices, Amazon allegedly continued to sell sodium nitrite on its website, according to Plaintiffs, until December 2022. (Id. ¶¶ 100, 102, 121; see also id. ¶ 8 (noting that Amazon disabled sales of sodium nitrite to individuals in December 2022).) Additionally, Plaintiffs allege that when Amazon encountered one-star reviews for sodium nitrite "relating to the deadliness of the product and its use for suicide," Amazon removed the reviews containing the word suicide, stating that such reviews violated its community guidelines, and banned those individuals from leaving future reviews. (Id. ¶¶ 122, 144-45.)

On September 9, 2020, Kristine Jónsson, a 16-year-old living in Ohio, registered for an account on Sanctioned Suicide. (Id. ¶¶ 157, 161; see also id. ¶¶ 160-72 (alleging that Kristine became "resolute about dying" during the COVID-19 pandemic).) She took notes regarding "the four steps to death by [s]odium [n]itrite" and "calculated that for her body size, she would need 20 grams of [s]odium [n]itrite and 200 mg of Tagamet so she would not throw up." (Id. ¶¶ 171-72.) On September 24, 2020, Kristine purchased Loudwolf Sodium Nitrite on Amazon.com using her personal account. (Id. ¶ 173; see also id. ¶ 179 (noting that Kristine purchased Tagamet from a CVS pharmacy, rather than Amazon.com).) The product arrived at her home two days later. (Id. ¶¶ 174-75.) On September 30, 2020, police found Kristine dead in a parked vehicle near her home. (Id. ¶¶ 180-85.) The police found a bottle of Sodium Nitrite in the car with Kristine, and Kristine's mother, Ms. Jónsson, found a "pile of letters" in Kristine's room that "looked like suicide notes." (Id. ¶¶ 183-85.) According to the Coroner's Report, Kristine's cause of death was "Sodium Nitrite Toxicity," and the manner of death was "Suicide." (Id. ¶ 186.)

On January 1, 2021, Ethan McCarthy, a 17-year-old living in West Virginia, placed an order for Loudwolf Sodium Nitrite on Amazon.com using his mother's account. (Id. ¶¶ 187-88, 22, 26.) Ethan's mother, Ms. Maynor, received an email confirmation from Amazon that the Sodium Nitrite would arrive between January 13 and January 15, 2021. (Id. ¶ 190.) After asking her children if anyone had ordered the product, and being told they had not, she contacted Amazon and requested they cancel the order, at which point Amazon told her it was canceling the order and informing the manufacturer. (Id. ¶¶ 190-91.) Although Ms. Maynor believed the order was canceled, the Sodium Nitrite arrived at their home several days later. (Id. ¶¶ 193-95 (stating that Ms. Maynor noticed that some Amazon packages had arrived and brought them inside, assuming they contained items from her other recent Amazon purchases).) On January 7, 2021, Ms. Maynor found Ethan dead in his bed. (Id. ¶¶ 196-99, 201.) When first responders arrived, Ms. Maynor noticed a bottle labeled Sodium Nitrite and a glass with white dried powder and a spoon on his desk. (Id. ¶¶ 196-200 (stating that the Sodium Nitrite "was the same item for which she had received the Amazon receipt, the purchase that Amazon assured her was canceled").) Ethan's "cause of death was ruled a suicide, by ingestion of Sodium Nitrite." (Id. ¶ 201 ("Per the Death Certificate, Ethan's cause of death was 'Sodium Nitrite Intoxication.' ")see also id. ¶ 202 (stating that Ms. Maynor found a deleted folder on Ethan's computer labeled "my hopes and dreams.").)

B. Procedural Background

Plaintiffs filed their original complaint against Amazon and Loudwolf in California state court, and Amazon removed the case to the Northern District of California. (See generally NOR (Dkt. # 1-1).) The first amended complaint alleges the following claims against Loudwolf and Amazon: negligent and strict product liability claims (Am. Compl. ¶¶ 34-36, 232-43 (Count I)); common law negligence claims (id. ¶¶ 244-47 (Count II)); and a negligent infliction of emotional distress ("NIED") claim brought solely by Ms. Maynor (id. ¶¶ 248-51 (Count III)).

Amazon subsequently moved to dismiss or transfer the case, arguing that the California district court lacked personal jurisdiction over it and that Plaintiffs failed to state a claim under California, Ohio, or West Virginia law. (See MTD/MTT (Dkt. # 25) at 12-28.) The court concluded that it lacked personal jurisdiction over Amazon and transferred the case to the Western District of Washington. (2/17/23 Min. Entry (Dkt. # 34) at 1-2.) The court also granted Plaintiffs' request to dismiss Loudwolf from the case. (See id. at 2.) Thereafter, Amazon filed the instant motion to dismiss. (MTD.)

III. ANALYSIS

The court sets forth the relevant standard of review before turning to address choice-of-law issues and Amazon's motion to dismiss.

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when a complaint "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Under this standard, dismissal is appropriate if the complaint fails to state a cognizable legal theory, Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010), or fails to provide "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quot...