United States District Court, W.D. Louisiana, Lafayette Division
TROY W. CHIASSON
HARBOR FREIGHT TOOLS, USA, INC.
REPORT AND RECOMMENDATION
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
the Court, on referral from the district judge, is a Motion
to Dismiss Pursuant to Rule 12(b)(6) [Doc. 5] filed by
defendant Harbor Freight Tools, USA, Inc.
(“defendant”). Plaintiff Troy W. Chiasson opposes
the motion [Doc. 7], and defendant has filed a Reply brief
[Doc. 11]. For the reasons that follow, the undersigned
recommends that the motion be DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
action was removed to this Court on October 18, 2017, from
the Twenty-Seventh Judicial District Court, St. Landry
Parish, Louisiana under the Court's diversity
jurisdiction. According to the plaintiff's petition, the
plaintiff purchased a Chicago Electric Power Tools Brand 18
Volt Cordless Heavy Duty Reciprocating Saw and a Chicago
Electric Power Tools Brand 8 Volt NiCad Battery
(collectively, the “products”) from the
defendant's store located in Lafayette, Louisiana on July
22, 2016. Plaintiff alleges that on September 9, 2016, he was
using the saw when the battery malfunctioned and exploded,
destroying the saw and battery, and causing the plaintiff to
fall, which caused personal injuries. The plaintiff alleges
the defendant negligently and carelessly designed,
manufactured, constructed, assembled, inspected, and sold the
saw and battery, and that the products were defective in
instant motion to dismiss, the defendant argues (1) the
plaintiff's claims are time-barred, and (2) the plaintiff
fails to state a claim against it, because it is a
non-manufacturing seller and therefore cannot be liable under
the Louisiana Products Liability Act.
survive a Rule 12(b)(6) motion to dismiss, the plaintiffs
must plead enough facts “to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A
claim is facially plausible when the plaintiff pleads facts
that allow the court to “draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Iqbal, 129 S.Ct. at 1949. A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand
v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th
Cir.2009); Baker v. Putnal, 75 F.3d 190, 196 (5th
Cir.1996). But the Court is not bound to accept as true legal
conclusions couched as factual allegations. Iqbal,
129 S.Ct. at 1949-50.
legally sufficient complaint must establish more than a
“sheer possibility” that plaintiffs' claim is
true. Id. It need not contain detailed factual
allegations, but it must go beyond labels, legal conclusions,
or formulaic recitations of the elements of a cause of
action. Twombly, 550 U.S. at 555. In other words,
the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal
evidence of each element of the plaintiffs' claim.
Lormand, 565 F.3d at 255-57. If there are
insufficient factual allegations to raise a right to relief
above the speculative level, Twombly, 550 U.S. at
555, or if it is apparent from the face of the complaint that
there is an insuperable bar to relief, Jones v.
Bock, 549 U.S. 199, 215 (2007); Carbe v.
Lappin, 492 F.3d 325, 328 & n. 9 (5th Cir.2007), the
claim must be dismissed.
jurisdiction in this matter is premised upon 28 U.S.C. §
1332 (diversity of citizenship), Louisiana law governs the
substantive issues of law. Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938). As such, the Court is duty
bound to apply Louisiana law. The defendant argues that under
Louisiana law, the plaintiff's claims are subject to
dismissal on two grounds: (1) the claims are prescribed; and
(2) the plaintiff fails to state a claim against a
non-manufacturing seller. Additionally, although the
plaintiff does not cite to the Louisiana Products Liability
Act in his petition, all parties agree the claims alleged in
the instant case arise under, and are governed by, the LPLA.
defendant argues the plaintiff's claims are prescribed
under Article 3492 of the Louisiana Civil Code, which
provides that delictual actions are subject to a liberative
prescription of one year, which commences to run from the
date the injury or damage is sustained. The defendant argues
the accident in question occurred on September 9, 2016, and
therefore the plaintiff's claims prescribed if he did not
files suit on or before September 9, 2017. Because the
plaintiff filed his lawsuit on September 14, 2017, the
defendant argues the plaintiff's claims are prescribed.
response, the plaintiff agrees that the applicable
prescriptive period in this case expired on September 9,
2017, but that because September 9, 2017 fell on a Saturday,
the prescriptive period actually did not expire until the end
of Monday, September 11, 2017, the next business day of the
Court. The plaintiff then argues that pursuant to La. Rev.
Stat. §13:850(A), timely facsimile transmission of a
petition interrupts prescription, and pursuant to the
statute, filing of a ...