McDonald v. LG Elecs. USA, Inc.

219 F.Supp.3d 533

Ryan MCDONALD, Plaintiff,

v.LG ELECTRONICS USA, INC., et al., Defendants.

Civil Action No. RDB–16–1093

United States District Court, D. Maryland.

Signed November 10, 2016

Shoshana Dinovitz, Law Offices of Shani Dinovitz LLC, Baltimore, MD, for Plaintiff.

Ambika Kumar Doran, James Condon Grant, Davis Wright Tremaine LLP, Seattle, WA, Brian A. Cafritz, Kalbaugh Pfund and Messersmith PC, Richmond, VA, Rachel Lynn Stewart, Kalbaugh Pfund & Messersmith PC, Fairfax, VA, for Defendants.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

Plaintiff Ryan McDonald ("plaintiff" or "McDonald") has filed a seven count complaint against defendants LG Electronics USA, Inc. ("LG")¹ and Amazon.com, Inc. ("Amazon") alleging, inter alia , products liability and negligence based on injuries he sustained when a battery manufactured by defendant LG allegedly exploded and caught fire in his pocket. (ECF No. 2.) This case was originally filed in the Circuit Court of Maryland for Baltimore City, but was subsequently removed by defendant Amazon on the basis of diversity of citizenship pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. (ECF No. 1.)

Now pending before this Court is Amazon's Motion to Dismiss ("Amazon's Motion") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 12, 13.) The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Amazon's Motion is GRANTED.

BACKGROUND

When reviewing a Motion to Dismiss, the Court accepts as true the facts alleged in the plaintiff's Complaint. See Aziz v. Alcolac, Inc. , 658 F.3d 388, 390 (4th Cir. 2011).

On November 5, 2014, Mr. McDonald ordered two LG rechargeable batteries through the Amazon website. (ECF No. 2 at ¶ 4.) The batteries were sold and shipped to plaintiff by Safetymind, a third-party seller on Amazon's website. (Id. at ¶¶ 3–4.) Safetymind has not been made party to this suit.

It appears that McDonald began using the rechargeable batteries, and at least one of which was on his person on the morning of December 31, 2015, when one of the batteries "violently and spontaneously explode[ed] in his pocket and set [ ] him on fire." (ECF No. 2 at ¶ 5.) Plaintiff sustained burns and was taken to Bay View Medical Center for treatment. (Id. at ¶ 6.)

Plaintiff's Complaint alleges a series of claims against defendants, including products liability (Counts I–IV, against LG), negligent failure to warn (Count V, against LG and Amazon), Negligence (Count VI, against LG and Amazon), and breach of implied warranty (Count VII, against LG and Amazon). (ECF No. 2.) Through this suit, plaintiff seeks to recover, inter alia , past and future medical expenses, pain and suffering damages, and lost wages. (Id. )

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff is required to plead "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of this requirement is to "to give the defendant fair notice of what the claim is and the grounds upon which it rests."

Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation and internal quotations omitted). Consequently, "a formulaic recitation of the elements of a cause of action will not do." Id. (citation omitted). Similarly, "an unadorned, the-defendant-unlawfully-harmed-me accusation" is insufficient. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Rather, to withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," meaning the court could draw "the reasonable inference that the defendant is liable for the conduct alleged." Id. (internal quotations and citation omitted).

ANALYSIS

Only three of the seven counts set forth in plaintiff's Complaint target Amazon: Count V seeks to hold Amazon liable under a theory of negligent failure to warn; Count VI alleges negligence; and Count VII is based on Amazon's alleged breach of implied warranty. (ECF No. 2 at 7–9.) As explained in detail below, the factual allegations in the Complaint fail to state a plausible claim for relief against Amazon.

I. Section 230 Immunity

Amazon argues that dismissal is mandated under Section 230 of the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1) (" Section 230"), which, Amazon asserts, "immunizes websites from claims that arise from information third parties provide and post when using websites." (ECF No. 13 at 7.) Amazon does not distinguish among the three claims, but asserts that all three counts against it are barred by Section 230. (Id. ) Plaintiff argues in opposition that Section 230 immunity does not apply because it is "content-based, in that it protects online service providers from actions against them based on content published by third parties." (ECF No. 19 at 3) (emphasis in original). While plaintiff recognizes that Section 230 would immunize Amazon from liability for "objectionable written content " which might give rise, for instance, to defamation claims, plaintiff asserts that " Section 230 does not state anything about protecting websites that sell, and profit from the sale of, defective products." (Id. at 3–4) (emphasis in original).

Section 230 provides, in pertinent part, that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). The United States Court of Appeals for the Fourth Circuit, in one of the leading cases interpreting the Communications Decency Act, has explained that Section 230 creates "federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Zeran v. Am. Online, Inc. , 129 F.3d 327, 330 (4th Cir. 1997). As this Court has previously noted, subsequent courts have interpreted Section 230 to offer immunity in a variety of settings. See Beyond Sys., Inc. v. Keynetics, Inc. , 422 F.Supp.2d 523, 536 (D. Md. 2006) (collecting cases).

Based on the statutory text, courts apply a three part test when assessing claims of immunity under Section 230. This test asks: "(1) whether Defendant is a provider of an interactive computer service; (2) if the postings at issue are information provided by another information content provider; and (3) whether Plaintiff's claims seek to treat Defendant as a publisher or speaker of third party content."

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 564 F.Supp.2d 544, 548 (E.D. Va. 2008), aff'd, 591 F.3d 250 (4th Cir. 2009).

In this case, there does not appear to be any dispute that Amazon is an "interactive computer service" under Section 230. See Compl., ECF No. 2 at ¶ 3. Nor is there any real dispute that the posting for sale was created on Amazon's website by a third party—Safetymind.² Id. Accordingly, the first two elements of the test for immunity are satisfied.

The thrust of plaintiff's argument targets the third element of the Nemet test for immunity under Section 230 —"whether Plaintiffs claims seek to treat Defendant as a publisher or speaker of third party content." 564 F.Supp.2d at 548. Plaintiff devotes several pages of his brief (ECF No. 19 at 5–7) distinguishing the authorities on which Amazon relies in support of its motion, and ultimately concludes that:

"the issue in this case is Amazon's sale of a defectively dangerous product, not the advertisement of the product. Contrary to Amazon's assertions, the issue in this case does not pivot on the on-line postings (i.e. descriptions or advertisements) regarding the battery. Rather, the issue pivots around the battery itself, Amazon's involvement in the sale of same, and Amazon's guarantee regarding its condition, regardless of how the battery was posted on Amazon's website. "

(ECF No. 19 at 7–8) (emphasis added).

Plaintiff's argument is well taken insofar as two of the counts against Amazon—negligence and breach of implied warranty—do not necessarily seek to hold Amazon liable as a "publisher or speaker," and are therefore not automatically barred under Section 230. See Nemet , 564 F.Supp.2d at 548. That is, to the extent that a plaintiff may prove that an interactive computer service played a direct role in tortious conduct—through its involvement in the sale or distribution of the defective product—Section 230 does not immunize defendants from all products liability claims.³ This rule is consistent with the Fourth Circuit's recognition that an interactive computer service loses its Section 230 immunity where the service also acts as an information content provider. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir. 2009). Moreover, as the Ninth Circuit has reasoned:

"The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant—perhaps the preeminent—means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability."

Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC , 521 F.3d 1157, 1189, n. 15 (9th Cir. 2008) (en banc ). Similarly, the Sixth Circuit has shown a reluctance to find that that Section 230's grant of immunity automatically bars all state law tort claims against interactive computer services. Doe v. SexSearch.com , 551 F.3d 412, 415 (6th Cir. 2008).⁴

In this case, plaintiff's negligence and breach of implied warranty claims (Counts VI and VII) do not seek to hold Amazon...