United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.
the Court are two motions by Reliance Worldwide Corporation:
(1) Rule 12(b)(6) motion to dismiss Liberty Mutual's
First amended complaint; and (2) Rule 12(b)(6) motion to
dismiss Bernhard MCC, LLC's cross-claim; RWC seeks
dismissal of some, but not all, of Liberty Mutual's
claims and BMCC's cross-claims. For the reasons that
follow, the motions are GRANTED.
litigation stems from a water intrusion that damaged the ACE
Hotel in New Orleans.
August 13, 2017, several ACE Hotel rooms and their contents
were allegedly damaged when a water pipe fitting
ruptured.Liberty Mutual Fire Insurance Company
issued a policy of property insurance in favor of the ACE
Hotel at 600 Carondelet Street. The policy obliges Liberty
Mutual to pay proceeds for any losses attributable to water
damage. Claiming that certain pipe fittings failed
causing the August 13 water intrusion, Liberty Mutual Fire
Insurance Company sued, in state court, Reliance Worldwide
Corporation (the pipe fitting manufacturer), Bernhard MCC,
LLC (the pipe fitting installer and servicer), as well as
their insurers, ABC Insurance Company, Inc. and The Travelers
Indemnity Company. Liberty Mutual, as subrogee of the ACE
Hotel, seeks to recover the proceeds in property damage it
paid plus court costs and expert fees.
Worldwide Corporation (RWC) removed the lawsuit to this
Court, invoking the Court's diversity jurisdiction.
Bernhard MCC, LLC (BMCC) answered the plaintiff's
complaint and filed a crossclaim against RWC, alleging that
RWC's plumbing fittings (called Sharkbite Push-fit
Connection Systems) were unreasonably dangerous in
construction or composition, unreasonably dangerous in
design, unreasonably dangerous in the failure to conform to
express warranties, and that RWC failed to warn (or
insufficiently warned) that the design would (and did) cause
damage; all theories of relief arising under the Louisiana
Products Liability Act. RWC moved to dismiss the
plaintiff's state court petition, and, in response, the
plaintiff moved to amend its state court petition. On
February 20, 2019, the Court granted RWC's motion to
dismiss, dismissing the plaintiff's claims without
prejudice, and the Court granted the plaintiff's motion
to amend its complaint. RWC now moves to dismiss for failure
to state a claim Liberty Mutual's construction or
composition defect theory of recovery; RWC also now moves to
dismiss for failure to state a claim BMCC's cross-claim
alleging as theories of LPLA recovery construction or
composition defect and breach of express warranty.
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. Such a motion
is rarely granted because it is viewed with disfavor. See
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1050 (5th Cir. 1982)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading
standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an
accusation." Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
considering a Rule 12(b)(6) motion, the Court
“accept[s] all well-pleaded facts as true and view[s]
all facts in the light most favorable to the
plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe
ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel.
Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But,
in deciding whether dismissal is warranted, the Court will
not accept conclusory allegations in the complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at
survive dismissal, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and footnote
omitted). “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.” Iqbal, 556 U.S.
at 678 (“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.”). This is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“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.” Id. at 678 (internal
quotations omitted) (citing Twombly, 550 U.S. at
557). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief'”, thus, “requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (alteration in original) (citation omitted).
LPLA provides “the exclusive remedy for products
liability suits” under Louisiana law. See Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th
Cir. 2012); see also La. R.S. § 9:2800.52 (the
LPLA provides “the exclusive theories of liability for
manufacturers for damage caused by their products.”).
To maintain a products liability action under the LPLA, a
claimant must establish four elements: the defendant is the
manufacturer of the product; the claimant's damage was
proximately caused by a characteristic of the product; this
characteristic made the product unreasonably dangerous; and
the claimant's damage arose from a reasonably anticipated
use of the product. Id. § 9:2800.54(A). The
characteristic that makes the product unreasonably dangerous
must exist at the time the product left control of the
manufacturer. Id. And, a product is unreasonably
dangerous “if and only if” it is so: 1) in
construction or composition; 2) in design; 3) because of an
inadequate warning; or 4) because it does not conform to an
express warranty. La. R.S. § 9:2800.54(B)(1-4). The LPLA
thus limits the plaintiff to these four theories of recovery.
Defective Construction or Composition
defective construction/composition provision of the LPLA
provides a remedy for harm caused by a product defect
"due to a mistake in the manufacturing process."
Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d
254, 263 (5th Cir. 2002)(citing La.R.S. § 2800.55).
Whether a product deviated from the manufacturer's
specifications or performance standards for the product or
from otherwise identical products manufactured by the same
manufacturer is an inquiry distinct from whether a
product's defect inheres in its design, such as where all
units of the same product model suffer from the same inherent
flaw. See Brocato v. DePuy Orotpaedics, Inc., No.
14-2607, 2015 WL 854150, at *3 (E.D. La. Feb. 25, 2015). If
pursuing a construction/composition defect theory, the
plaintiff must show that, at the time the product left the
manufacturer's control, it deviated materially from the
manufacturer's specifications or performance standards
for the product or from otherwise identical products
manufactured by the same manufacturer. La. R.S. §
9:2800.55. Or, in other words, the plaintiff must show that
the particular Sharkbite fitting(s) that failed at the ACE
Hotel either did not meet identified performance standards or
specifications, or that it deviated from the construction or
composition of identical Sharkbite fittings manufactured by
RWC (that some manufacturing defect resulted in anomalous
composition of the particular Sharkbite fitting used when
compared with other Sharkbite fittings manufactured by RWC).
By failing to identify the manufacturer's specifications
or performance standards for Sharkbite fittings, or failing
to indicate how the particular Sharkbite fitting(s) that
failed materially deviated from those standards, the
plaintiff (or cross-claimant) fails to state a cause of
action for defective construction or composition under the
the LPLA, a product's design is unreasonably dangerous if
the plaintiff demonstrates that, at the time the product left
the manufacturer's control, "[t]here existed an
alternative design for the product that was capable of
preventing the claimant's damage and that the danger of
the damage outweighed the burden on the manufacturer of
adopting the alternative design." Watson v. Bayer
Healthcare Pharmaceuticals, Inc., No. 13-212, 2013 WL
1558328, at *4 (E.D. La. April 11, 2013)(Feldman, J.)(quoting
La. R.S. § 9:2800.56)(citations omitted). The LPLA
"does not allow a fact finder to presume an ...