United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
Ryan McDonald ("plaintiff or "McDonald") has
filed a seven count complaint against defendants LG
Electronics USA, Inc. ("LG") and
Ama20n.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 citi2enship pursuant to 28 U.S.C. §§
1332, 1441, and 1446. (ECF No. 1.)
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
reviewing a Motion to Dismiss, the Court accepts as true the
facts alleged in the plaintiffs Complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).
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.
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.)
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.)
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 At/antic Corp. v.
Twombly, 550 U.S. 544, 555 (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 (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).
three of the seven counts set forth in plaintiffs 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.
Section 230 Immunity
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, "immuni2es 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).
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 Sjs., Inc. v. Kejnetics,
Inc., 422 F.Supp.2d 523, 536 (D. Md. 2006) (collecting
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 Plaintiffs 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), affd, 591 F.3d 250 (4th Cir. 2009).
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. Id. Accordingly, the first two
elements of the test for immunity are satisfied.
thrust of plaintiffs 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
"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