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Tassin v. Bob Barker Company, Inc.

United States District Court, M.D. Louisiana

January 31, 2019

ROBERT B. TASSIN, JR.
v.
BOB BARKER COMPANY, INC.

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion to Dismiss based upon Fed.R.Civ.P. 12(b)(2) and 12(b)(6) filed by defendants, Bob Barker Company, Inc., Robert Barker, and Nancy Barker (“Defendants”).[1] No. timely opposition to the Motion to Dismiss has been filed by pro se plaintiff, Robert B. Tassin, Jr. (“Plaintiff”), [2] and therefore, the Court considers the Motion to Dismiss to be unopposed.

         For the reasons set forth herein, the undersigned recommends granting the Motion to Dismiss Plaintiff's claims against the individual defendants, Robert Barker and Nancy Barker, pursuant to Fed.R.Civ.P. 12(b)(2). Additionally, the undersigned recommends granting the Motion to Dismiss all claims not arising under the Louisiana Products Liability Act, as well as granting the Motion to Dismiss the Louisiana Products Liability Act claims based on defective construction, composition, and design, pursuant to Fed.R.Civ.P. 12(b)(6). The undersigned further recommends denying the Motion to Dismiss as to the Louisiana Products Liability Act claims based on inadequate warning and breach of express warranty.

         I. Background

         On June 13, 2016 Plaintiff, a pro se prisoner confined at the Louisiana State Penitentiary in Angola, Louisiana, filed suit against Bob Barker Company, Inc., Robert Barker and Nancy Barker alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332.[3] The Complaint alleges that Robert Barker is the CEO of Bob Barker Company, Inc., and that Nancy Barker is a “Corporate Responsibility [sic]” of Bob Barker Company, Inc.[4] No. other allegations are made regarding Robert Barker or Nancy Barker individually.

         In his Complaint, Plaintiff alleges that on or about June 15, 2015, he sustained injuries in a slip and fall while wearing “EVA Clogs, ” which were allegedly manufactured, marketed, developed, distributed, promoted, tested, labeled, and sold by Bob Barker Company, Inc.[5] The “Clogs” were allegedly advertised as follows:

Versatile EVA sandals can be worn with strap behind heel - or flipped up to wear as clogs. Either way, they are styled for comfort, with defined out-sole ridges for surface-gripping traction and vented design to promote airflow in the toe box. Non-metal rivet connects heel strap to upper shoe. 100% medium-soft EVA (Ethyl vinyl Acetate) is non-marking and water-resistant. (emphasis supplied-and, find at: www.bobbarker.com).[6]

         Plaintiff alleges he was induced to buy the “Clogs” based upon the representations made in this advertisement and was specifically induced to buy based on the representation that the shoe had “surface-gripping traction” and was “water-resistant.”[7] Plaintiff further alleges that when he ordered the “Clogs, ” the order described them as “Crostyle Shower Shoes.”

         Plaintiff claims Defendants are liable unto him under theories of “strict liability, strict product liability, defective product design, defective product composition, failure to adequately warn, negligence, redhibition, fraudulent misrepresentation and concealment, and breach of implied and express warranties.”[8] More specifically, Plaintiff appears to allege the following: (1) Defendants failed to warn consumers that the “Clogs” were “dangerous when worn on wet surfaces and, on some dry surfaces;” (2) Defendants had actual knowledge that the product was dangerous at the time the advertisement was published; (3) the product is defective as designed; (4) Defendants fraudulently misrepresented the “Clogs” and concealed their dangerous nature; and (5) the “Clogs” contain a redhibitory defect.[9]

         As a result of the slip and fall, Plaintiff alleges he sustained injuries to his neck, back, and hips, and has other continuing issues such as “extreme” dizziness, “extreme” headaches, “severe memory loss” (which Plaintiff alleges has progressively gotten worse since the date of the incident), psychological damages, anxiety, agitation, nausea, sleep deprivation, disability, and fear of future mental and physical ailments.[10]

         II. Law and Analysis

         A. Plaintiff's Claims Against Robert Barker and Nancy Barker, Individually

         The plaintiff has the burden of presenting prima facie evidence of personal jurisdiction over a defendant who files a motion to dismiss for lack of in personam jurisdiction.[11] The fiduciary shield doctrine provides the general rule that “jurisdiction over an individual cannot be predicated upon jurisdiction over a corporation. . . .”[12] As explained by the Spademan court, the fiduciary shield doctrine does not apply, however, where it is determined that the corporate entity should be disregarded, usually under a theory that the company is the alter ego of the individual.[13] The following factors are considered in determining whether a company is the alter ego of the individual: (1) the corporation is undercapitalized, (2) without separate books, (3) its finances are not kept separate from individual finances, individual obligations are paid by the corporation, (4) the corporation is used to promote fraud or illegality, (5) corporate formalities are not followed or (6) the corporation is merely a sham.”[14]

         Here, Plaintiff has not made any allegations that Robert or Nancy Barker, personally, have any contacts with the state of Louisiana, nor has Plaintiff alleged facts that would support a claim for veil piercing to establish that Bob Barker Company, Inc.'s contacts should be attributed to Robert or Nancy Barker. Thus, Plaintiff has failed to meet his burden of providing prima facie evidence of personal jurisdiction over Robert or Nancy Barker. Accordingly, the undersigned recommends granting Defendants' Motion to Dismiss Plaintiff's claims against Robert Barker and Nancy Barker individually pursuant to Fed.R.Civ.P. 12(b)(2).

         B. Plaintiff's Claims Against Bob Barker Company, Inc.

         In Bell Atlantic Corp. v. Twombly, [15] and Ashcroft v. Iqbal, [16] the Supreme Court clarified the standard of pleading that a plaintiff must meet to survive a motion to dismiss pursuant to Rule 12(b)(6). Specifically, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[17] “To survive 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.'”[18] “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.”[19] It follows that, “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 ‘show[n]' - ‘that the pleader is entitled to relief.'”[20] “Where a Complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'”[21]

         On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the Complaint.”[22] Further, “[a] document filed pro se is ‘to be liberally construed' ... and ‘a pro se Complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'”[23]Notwithstanding, the court need not accept “a legal conclusion couched as a factual allegation, ”[24]or “naked assertions [of unlawful conduct] devoid of further factual enhancement.”[25] Moreover, the federal pleading rules simply require a “short and plain statement of the claim showing that the pleader is entitled to relief.”[26] The task of the Court is not to decide if the plaintiff will eventually be successful, but to determine if a “legally cognizable claim” has been asserted.[27]

         Here, all of plaintiff's theories of recovery revolve around a manufactured product, which he alleges was unreasonably dangerous. The Louisiana Products Liability Act (“LPLA”) contained within Louisiana Revised Statutes 9:2800.51, et seq., establishes the exclusive theories of liability for manufacturers[28] for damage caused by their products.[29] Any other theory of liability is precluded.[30] “[F]or causes of action arising after the effective date of the LPLA, negligence, strict liability, and breach of express warranty are not available as theories of recovery against a manufacturer, independent from the LPLA.”[31] Thus, all claims made by Plaintiff based on any legal theory not arising from the LPLA are barred and subject to dismissal.[32] Accordingly, Plaintiff's claims based upon strict liability, negligence, redhibition, fraudulent misrepresentation and concealment, and breach of implied warranty should be dismissed with prejudice.[33]

         As explained by the Fifth Circuit, to maintain a successful products liability action under the LPLA, a plaintiff must establish the following four elements: (1) that the defendant is a manufacturer of the product; (2) that the claimant's damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product “unreasonably dangerous;” and (4) that the claimant's damage arose from a reasonably anticipated use of the product.[34] A plaintiff may establish that a product was “unreasonably dangerous” under one of four theories:

(1) the product's construction or composition is defective; (2) the product's design is defective; (3) the product's warnings are inadequate, or (4) by showing a breach of express warranty.[35]

         To establish a construction or composition defect, a plaintiff must show that “at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.”[36] To establish a design defect, a plaintiff must show that “‘at the time the product left the manufacturer's control, there existed an alternative design for the product that was capable of preventing the claimant's damage' and that the danger ...


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