HARTWELL v. EZRICARE, LLC

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DEBORAH HARTWELL,

Plaintiff,

Civil Action No. 23-01647 (GC) (RLS)

v.

MEMORANDUM OPINION

EZRICARE, LLC, et al.,

Defendants.

CASTNER, District Judge

This matter comes before the Court upon Defendants EzriCare, LLC’s, EzriRx, LLC’s, and

Amazon.com, Inc.’s motions to dismiss Plaintiff Deborah Hartwell’s complaint. (ECF Nos. 39,

42, 43, 44.) Hartwell opposed, and Moving Defendants replied. (ECF Nos. 45 to 50.) The Court

has carefully considered the parties’ submissions and decides the motion without oral argument

pursuant to Federal Rule of Civil Procedure (Rule) 78(b) and Local Civil Rule 78.1(b). For the

reasons set forth below, and other good cause shown, Amazon’s motion is GRANTED, EzriRx’s

motion is DENIED, and EzriCare’s motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Hartwell, an Ohio citizen, claims that her eye became infected with pseudomonas

aeruginosa bacteria after using EzriCare artificial tears that she purchased from EzriCare on

Amazon.com and used in Ohio. (ECF No. 39 ¶¶ 2-3, 11, 18.)1

Hartwell sues EzriCare, the New Jersey-based company that sold her the product; EzriRx,

another New Jersey-based company, which allegedly participated in the supply chain; Global

Pharma Healthcare Private Ltd., the Indian-based corporation that designed, manufactured, and

packaged the product (ECF No. 43-1 at 82); and Amazon, the online platform where Hartwell

purchased the product.3 (ECF No. 39 ¶ 6.)

In a 14-count complaint, Hartwell asserts claims for strict liability for failure to warn

against all Defendants (Count One); strict liability for design or manufacturing defect against

EzriCare, EzriRx, and Global Pharma (Count Two); negligence or gross negligence against all

Defendants (Count Three); products liability negligence for failure to warn against all Defendants

(Count Four); products liability negligence for design or manufacturing defect against EzriCare,

EzriRx, and Global Pharma (Count Five); negligent misrepresentation or omission against all

Defendants (Count Six); fraud against all Defendants (Count Seven); fraudulent concealment

against all Defendants (Count Eight); breach of express warranty against all Defendants (Count

Nine); breach of implied warranty (Count Ten); negligent failure to timely recall against all

Defendants (Count Eleven); violations of New Jersey’s Consumer Fraud Act (NJCFA), N.J. Stat.

1 The parties appear to agree that the Amended Complaint’s reference to Minnesota is a typo

and that Hartwell in fact purchased the product in Ohio. (ECF No. 42-1 at 7 n.1; Compare ECF

No. 39 ¶ 2, with ECF No. 1 ¶ 2.)

2 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

3 The Court has diversity-based subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1).

Ann. § 56:8-2, against EzriCare and EzriRx (Count Twelve); punitive damages against all

Defendants (Count Thirteen); and violations of the New Jersey Products Liability Act (NJPLA),

N.J. Stat. Ann. § 2A:58C-1, against all Defendants (Count Fourteen). (ECF No. 39.)

Amazon, EzriCare, and EzriRx each moved to dismiss. Amazon argues that it is not subject

to personal jurisdiction in New Jersey. (ECF No. 42.) EzriRx argues that Hartwell lacks sufficient

standing against EzriRx and, even so, Hartwell fails to state a claim against EzriRx. (ECF No.

44.) And EzriCare argues that (1) Hartwell’s complaint is insufficient on its face, (2) Hartwell’s

product liability claims are subsumed by the New Jersey Product Liability Act (NJPLA), (3)

Hartwell fails to sufficiently plead a claim for breach of express warranty, and (4) Hartwell fails

to sufficiently plead a claim under the NJPLA. (ECF No. 43.)4

II. LEGAL STANDARDS

A. Rule 12(b)(1)—Lack of Subject-Matter Jurisdiction

Under Rule 12(b)(1), a court must grant a motion to dismiss if it lacks subject matter

jurisdiction to hear a claim. See Fed. R. Civ. P. 12(b)(1). A motion to dismiss for want of standing

is properly brought under Rule 12(b)(1), because “standing is a jurisdictional matter.” Ballentine

v. United States, 486 F.3d 806, 810 (3d Cir. 2007). On a motion to dismiss for lack of standing,

plaintiff “bears the burden of establishing the elements of standing, and each element must be

supported in the same way as any other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the successive stages of the litigation.”

Id. (citations and internal quotation marks omitted); see also Transunion LLC v. Ramirez, 141 S.

Ct. 2190, 2207-08 (2021) (confirming that “plaintiffs must demonstrate standing for each claim

4 EzriRx joins in EzriCare’s motion to dismiss. (ECF No. 44-1 at 5 n.1.)

that they press and for each form of relief they seek . . . with the manner and degree of evidence

required at the successive stages of the litigation”).

In evaluating a Rule 12(b)(1) motion to dismiss, courts must first determine whether the

motion “presents a ‘facial’ attack or a ‘factual’ attack on the claim at issue, because that distinction

determines how the pleading must be reviewed.” Const. Party of Pa. v. Aichele, 757 F.3d 347,

357 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron/Temodar Consumer Class Action,

678 F.3d 235, 243 (3d Cir. 2012)). “A facial 12(b)(1) challenge, which attacks the complaint on

its face without contesting its alleged facts, is like a 12(b)(6) motion in requiring the court to

‘consider the allegations of the complaint as true.’” Hartig Drug Co. Inc. v. Senju Pharm. Co.,

836 F.3d 261, 268 (3d Cir. 2016) (citation omitted).

A factual challenge, on the other hand, “attacks allegations underlying the assertion of

jurisdiction in the complaint, and it allows the defendant to present competing facts.” Id.; see

Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (noting that a motion “supported by a

sworn statement of facts . . . must be construed as a factual, rather than a facial attack” (quoting

Int’l Ass’n of Machinists & Aerospace Workers v. Nw. Airlines, Inc., 673 F.2d 700, 711 (3d Cir.

1982))). The party invoking the federal court’s jurisdiction has “the burden of proof that

jurisdiction does in fact exist.” Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)

(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). The “trial

court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the

case” and “the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Id.

(quoting Mortensen, 549 F.2d at 891). “Therefore, a 12(b)(1) factual challenge strips the plaintiff

of the protections and factual deference provided under 12(b)(6) review.” Hartig Drug Co., 836

F.3d at 268.

Regardless of the type of challenge, the plaintiff bears the “burden of proving that the court

has subject matter jurisdiction.” Cottrell v. Heritages Dairy Stores, Inc., Civ. No. 09-1743, 2010

WL 3908567, at *2 (D.N.J. Sep. 30, 2010) (citing Mortensen, 549 F.2d at 891).

B. Rule 12(b)(2)—Lack of Personal Jurisdiction

For purposes of a motion to dismiss pursuant to Rule 12(b)(2), “the plaintiff must sustain

its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent

evidence . . . , not mere allegations.” Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir. 1990) (citation

omitted); see Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009) (describing

plaintiff’s burden to prove that jurisdiction exists). When the district court does not hold an

evidentiary hearing, “the plaintiff need only establish a prima facie case of personal jurisdiction

and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its

favor.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004) (citation omitted). If the

plaintiff meets this burden, “the burden shifts to the defendant to establish the presence of other

considerations that would render the exercise of personal jurisdiction unreasonable.”

Brainbuilders LLC v. EmblemHealth, Inc., Civ. No. 20-12703, 2021 WL 2025004, at *3 (D.N.J.

May 21, 2021) (quoting Display Works, LLC v. Bartley, 182 F. Supp. 3d 166, 172 (D.N.J. 2016)).5

C. Rule 12(b)(6)—Failure to State a Claim

On a motion to dismiss for failure to state a claim, courts “accept the factual allegations in

the complaint as true, draw all reasonable inferences in favor of the plaintiff, and assess whether

the complaint and the exhibits attached to it ‘contain enough facts to state a claim to relief that is

plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131, 140 (3d Cir. 2023) (quoting

5 To these ends, Amazon submits a declaration of Andy Sachs (“Sachs Decl.”), senior

manager of risk and policy at Amazon, at ECF No. 42-2.

Watters v. Bd. of Sch. Directors of City of Scranton, 975 F.3d 406, 412 (3d Cir. 2020)). “A claim

is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.’” Clark v. Coupe, 55

F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372

(3d Cir. 2019)). When assessing the factual allegations in a complaint, courts “disregard legal

conclusions and recitals of the elements of a cause of action that are supported only by mere

conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood Lab’ys LLC v. Thanoo, 999 F.3d

892, 903 (3d Cir. 2021)). The defendant bringing a Rule 12(b)(6) motion bears the burden of

“showing that a complaint fails to state a claim.” In re Plavix Mktg., Sales Pracs. & Prod. Liab.

Litig. (No. II), 974 F.3d 228, 231 (3d Cir. 2020) (citing Davis, 824 F.3d at 349).

III. DISCUSSION

A. Amazon’s Motion

Amazon moves to dismiss for lack of personal jurisdiction under Rule 12(b)(2). The

United States Constitution provides two ways to establish personal jurisdiction: general (i.e., “all-

purpose”) and specific (i.e., “case-linked”). Bristol-Myers Squibb Co. v. Superior Ct. of

California, San Francisco Cnty., 582 U.S. 255, 262 (2017); Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 919 (2011). Hartwell invokes only specific personal jurisdiction over

Amazon.

For specific personal jurisdiction, three elements must be met: first, the defendant

“purposefully directed its activities at the forum”; second, the litigation “arise[s] out of or relate[s]

to at least one of those activities”; and third, the exercise of jurisdiction “comports with fair play

and substantial justice.” O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007);

Hepp v. Facebook, 14 F.4th 204, 207 (3d Cir. 2021); D’Jamoos ex rel. Est. of Weingeroff v. Pilatus

Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009). “The defendant need not be physically located in

the state while committing the alleged acts.” Al-Ghena Int’l Corp. v. Radwan, 957 F. Supp. 2d

511, 528 (D.N.J. 2013) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)). “Nor

is specific jurisdiction defeated merely because the bulk of harm occurred outside the forum.” Id.

(citing Keeton v. Hustler Mag., Inc., 465 U.S. 770, 780 (1984)).

Hartwell’s premise for personal jurisdiction is that “Amazon entered into agreements to

purchase EzriCare Artificial Tears from New Jersey[-]based EzriCare and/or EzriRX and

purchased the Product from EzriCare and/or EzriRX, for resale to consumers.” (ECF No. 39 ¶ 6.)

Amazon argues that Hartwell’s premise is demonstrably untrue. (ECF No. 42-1 at 12-13.)

“Amazon did not purchase the artificial tears from EzriCare and then resell them,” nor did Amazon

“acquire or transfer title to the artificial tears sold by EzriCare to Ms. Hartwell,” according to Andy

Sachs, a senior manager of risk and policy at Amazon, who claims to have “extensive personal

knowledge of how Amazon’s store works, the relationship between Amazon and third-party

sellers, and the relative responsibilities of Amazon and third-party sellers for transactions in

Amazon’s store.” (Sachs Decl. ¶¶ 1-2, 13.) Sachs states that the transaction records for Hartwell’s

purchases of the product show that EzriCare “s[old] the artificial tears on Amazon.com, sourced

the artificial tears, held title to the artificial tears, and sold them directly to [Hartwell].” (ECF No.

42-1 at 13 (summarizing Sachs Decl. ¶¶ 6, 12, Ex. A).) The transaction records also show that to

fulfill the orders, EzriCare used Amazon’s “optional Fulfillment By Amazon (FBA) logistics

service,” where “Amazon simply provides storage and logistics services.” (Sachs Decl. ¶¶ 6, 16-

17.) Hartwell’s EzriCare purchases, according to the records, shipped from Amazon’s fulfillment

centers in Ohio and Michigan. (Id. ¶ 18.)

Hartwell does not contest Sachs’s declarations.6 In fact, Hartwell asserts that Sachs’s

declaration shows that Amazon directed activities at New Jersey in three ways.

First, EzriCare was presumably in New Jersey when it entered the Amazon Services

Business Solutions Agreement (BSA), which governs EzriCare’s “access to and use of [Amazon’s]

services,” including selling on Amazon and fulfillment by Amazon. (ECF No. 45 at 8, 11-12;

Sachs Decl. ¶¶ 9, 16, 18; Sachs Decl. Ex. B at 1, 10, ECF No. 42-2 at 13, 22 (all-capitalizations

omitted).) But even so, “[t]he mere existence of a contract is insufficient to establish minimum

contacts.” Budget Blinds, Inc. v. White, 536 F.3d 244, 261 (3d Cir. 2008) (citing Rudzewicz, 471

U.S. at 478); see Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582

U.S. 255, 268 (2017) (“The bare fact that [a non-resident defendant] contracted with a [resident]

distributor is not enough to establish personal jurisdiction in the State.”). Whether a contract

establishes personal jurisdiction depends on the parties’ “prior negotiations and contemplated

future consequences, along with the terms of the contract and the parties’ actual course of dealing.”

Budget Blinds, 536 F.3d at 261 (quoting Rudzewicz, 471 U.S. at 479).

Amazon submits that it did not negotiate with EzriCare or contemplate the future

consequences of EzriCare’s use of Amazon’s services. Sachs describes the BSA as an “electronic,

click-through agreement” that third-party sellers must accept as a step in the seller account set-up

process. (Sachs Decl. ¶ 9.)7 Hartwell neither disputes Sachs’s description nor alleges anything to

6 Because Hartwell does not dispute the veracity of Amazon’s evidence, but only its

significance, the Court need not hold an evidentiary hearing on the issue if the evidence is viewed

in a light most favorable to Hartwell. See Danziger & De Llano, LLP v. Morgan Verkamp LLC,

948 F.3d 124, 129 (3d Cir. 2020) (requiring court to take the plaintiff’s factual allegations as true

and resolve all doubts in plaintiff’s favor if it does not hold evidentiary hearing on personal

jurisdiction).

7 Sachs submits that “EzriCare assented to the BSA when it registered as a seller on March

15, 2021.” (Sachs Decl. ¶ 9.)

the contrary. The Court therefore finds that EzriCare’s assent to the BSA when setting up a seller

account does not favor personal jurisdiction over Amazon. See Mellon Bank (E.) PSFS, Nat. Ass’n

v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (“When a defendant raises the defense of the court's

lack of personal jurisdiction, the burden falls upon the plaintiff to come forward with sufficient

facts to establish that jurisdiction is proper.” (citation omitted)).

Second, EzriCare’s payment for Amazon’s services, as well as EzriCare’s shipments of

inventory to Amazon’s Ohio and Michigan fulfillment centers, came from New Jersey. (ECF No.

45 at 11-12.) But EzriCare’s unilateral payments and shipments to Amazon cannot alone establish

personal jurisdiction over Amazon. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408, 417 (1984) (“[U]nilateral activity of another party or a third person is not an appropriate

consideration when determining whether a defendant has sufficient contacts with a forum State to

justify an assertion of jurisdiction.”); see also Baanyan Software Servs., Inc. v. Kuncha, 81 A.3d

672, 679 (N.J. Super. Ct. App. Div. 2013) (“[T]he fact that defendant received payment from

Baanyan, and submitted timesheets to Baanyan, does not support a finding of personal jurisdiction

as this was all done electronically and did not require any contact with New Jersey.” (citing Mellon

Bank (E.) PSFS, N.A. v. DiVeronica Bros., 983 F.2d 551, 555 (3d Cir. 1993))); G&C Fab-Con,

LLC v. M&S Civ. Consultants, Inc., Civ. No. 20-08425, 2021 WL 268177, at *5 (D.N.J. Jan. 27,

2021) (“[E]ven if the record clearly indicated that Plaintiff was processing pay applications or

payments from Defendant, this is only one factor to consider among the totality of the

circumstances.”). As a result, this basis does not favor personal jurisdiction.

Finally, under the BSA, EzriCare granted Amazon “a royalty-free, non-exclusive,

worldwide right and license for the duration of [the] original and derivative intellectual property

rights to use any and all of [EzriCare’s] Materials for the Services or other Amazon product or

service, and to sublicense the foregoing rights to [its] affiliates and operators of Amazon

Associated Properties . . . .” (ECF No. 45 at 12-13 (quoting Sachs Decl. Ex. B at 2).) The Court,

however, agrees with Amazon that the BSA provision “reflects only EzriCare’s unilateral choice

to assent to the BSA to sell its products on Amazon.com, not any deliberate targeting of New

Jersey by Amazon.” (ECF No. 50 at 8.) See D’Jamoos, 566 F.3d at 104 (noting that although

“efforts to exploit a national market necessarily included Pennsylvania as a target, . . . those efforts

simply do not constitute the type of deliberate contacts within Pennsylvania that could amount to

purposeful availment of the privilege of conducting activities in that state”).

Hartwell asks for jurisdictional discovery so that she can investigate (1) the office location

of “Amazon employees who brokered and contracted with New Jersey-based EzriCare,” (2)

whether Amazon possessed and stored EzriCare product in New Jersey, and (3) “whether any New

Jersey-based third parties were involved in the transfer or storage of the EzriCare” product from

EzriCare to Amazon. (ECF No. 45 at 11-12, 15.)

To get jurisdictional discovery, Hartwell must “present[] factual allegations that suggest

‘with reasonable particularity’ the possible existence of the requisite ‘contacts between [the party]

and the forum state.’” Aldossari on Behalf of Aldossari v. Ripp, 49 F.4th 236, 259 (3d Cir. 2022)

(quoting Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir.

2010)) (alterations in original). “[J]urisdictional discovery should be allowed unless the plaintiff’s

claim is ‘clearly frivolous.’” Massachusetts Sch. of L. at Andover, Inc. v. Am. Bar Ass’n, 107 F.3d

1026, 1042 (3d Cir. 1997) (citation omitted); see also Metcalfe, 566 F.3d at 336 (“[J]urisdictional

discovery particularly appropriate where the defendant is a corporation.”). But a plaintiff’s “bare

allegations” will not justify jurisdictional discovery. Ripp, 49 F.4th at 259 (quoting Eurofins

Pharma, 623 F.3d at 157).

To recap, Hartwell’s premise for tying Amazon to New Jersey is that Amazon allowed a

New Jersey-based company to sell products on its online platform, received payments from that

company, and provided fulfillment services for that company from its Michigan and Ohio

fulfillment centers. The Court is not satisfied that Hartwell’s allegations concerning Amazon’s

relevant contacts with New Jersey are sufficiently particular to justify jurisdictional discovery.

Therefore, the Court dismisses the complaint against Amazon without prejudice.

B. EzriRx’s Motion

EzriRx argues that the complaint does not allege facts establishing standing against it.

(ECF No. 44-1.) Article III standing requires “(1) an injury-in-fact, (2) a sufficient causal

connection between the injury and the conduct complained of, and (3) a likelihood that the injury

will be redressed by a favorable decision.” Finkelman v. Nat’l Football League, 810 F.3d 187,

193 (3d Cir. 2016). EzriRx challenges only the causal-connection element.

EzriRx argues that Hartwell has not and cannot plead a causal connection between her

injury and EzriRx, because EzriRx operates a business-to-business sales portal—it does not sell

products to consumers. (ECF No. 44-1 at 8-9.) In support, EzriRx submits the affidavit of Ezriel

Green, the founder and chief executive officer of EzriRx. (Green EzriRx Aff. ¶ 3, ECF No. 44-

2.)8 Green states that “EzriRx is an online marketplace platform that assists pharmacies in

purchasing prescription medications, over-the-counter drugs, and pet medication,” and that

“EzriRx does not sell directly to consumers.” (Green EzriRx Aff. ¶¶ 7-8.)

8 On a factual attack on subject-matter jurisdiction, such as EzriRx’s, “the court may

consider evidence ‘outside the pleadings,’ including ‘affidavits, depositions, and testimony to

resolve factual issues bearing on jurisdiction.’” Fort v. United States, Civ. No. 22-583, --- F. Supp.

3d ----, 2024 WL 228935, at *6 (D.N.J. Jan. 22, 2024) (quoting Constitution Party of Pa. v.

Aichele, 757 F.3d 347, 358 (3d Cir. 2014); then Gotha v. United States, 115 F.3d 176, 179 (3d Cir.

1997)).

Hartwell contests that EzriRx is simply an online marketplace. (ECF No. 47 at 10.) She

notes that Green’s affidavit does not “address EzriRx’s involvement in the development,

manufacture, importation, marketing, labelling, and distribution (including to Walmart)[9] of the

EzriCare Product.” (Id. at 10, 14.) She also asserts that EzriRx and EzriCare are “essentially a

single entity with respect to the EzriCare Product,” given that the two entities share a CEO, phone

numbers, a website, and counsel in this litigation; both “were responsible for bringing the EzriCare

Product to market”; and “EzriRx is the registered and licensed owner of the trademark ‘EzriCare.’”

(Id. at 15; ECF No. 39 ¶¶ 19-21.) “Thus, for purposes of liability in this case,” Hartwell contends,

“EzriCare LLC and EzriRx LLC may properly be considered as one.” (ECF No. 47 at 16.)

The Court disagrees with Hartwell’s alter-ego theory of liability. Entities’ sharing

leadership, contact information, and counsel does not alone justify disregarding their corporate

separateness. See Mikhail v. Amarin Corp., plc, Civ. No. 23-01856, 2024 WL 863427, at *6-8

(D.N.J. Feb. 29, 2024) (discussing the standard for disregarding corporate separateness). The

Court cannot disregard the EzriRx’s and EzriCare’s separateness on these grounds.

On the other hand, the Court finds that the complaint includes enough allegations from

which the Court could infer a plausible causal connection between Hartwell’s injury and EzriRx’s

conduct. As to EzriRx’s involvement, the complaint alleges that EzriRx “markets, advertises,

labels, distributes, and sells” EzriCare’s artificial tears; “‘EzriCare’ is a trademark registered and

licensed to” EzriRx; and “EzriCare and EzriRx are interrelated entities which share leadership, a

phone number, and a website.” (ECF No. 39 ¶¶ 19-20 (cleaned up).) Those allegations explain

EzriRx’s connection with EzriCare and the product. They imply the way in which EzriRx may be

9 Hartwell, who alleges that she purchased the artificial tears on Amazon.com, does not

elaborate on why EzriRx’s alleged distribution to Walmart is relevant.

involved in the design, labeling, advertising, or distribution of a product that made its way to

Hartwell. The Court too observes that Green’s affidavit does not address this issue. So although

Hartwell, faced with a factual challenge on subject-matter jurisdiction, does not enjoy Rule

12(b)(6) deference, the Court finds that her pleadings clear the standing hurdle. In the same light,

EzriRx’s Rule 12(b)(6) challenge asserting that the complaint does not provide “fair notice of the

claim and the grounds upon which it rests” is also rejected. (ECF No. 44-1 at 10.)

EzriRx’s motion to dismiss is therefore denied.

C. EzriCare’s Motion

1. NJPLA Subsumption

EzriCare argues that the NJPLA subsumes Hartwell’s common-law products-liability

claims.10 (ECF No. 43-1.)

10 Hartwell contends that the substantive law of New Jersey may not apply here, noting that

the law of Ohio (where Hartwell lives) may govern, but it is too early to tell. (ECF No. 46 at 17.)

Although “it can be inappropriate or impossible for a court to conduct [a choice of law] analysis

at the motion to dismiss stage when little or no discovery has taken place[,] . . . [s]ome choice of

law issues may not require a full factual record and may be amenable to resolution on a motion to

dismiss.” Rapid Models & Prototypes, Inc. v. Innovated Sols., 71 F. Supp. 3d 492, 499 (D.N.J.

2014) (quoting Snyder v. Farnam Companies, Inc., 792 F. Supp. 2d 712, 718 (D.N.J. 2011)) (most

alterations in Rapid Models). Here, EzriCare notes that the Ohio Product Liability Act abrogates

common-law claims for product liability, strict liability, and negligence, just as the NPLA

subsumes such claims, as discussed below. (ECF No. 43 at 16 n.12.) See Simpson v. Johnson &

Johnson, 2020 WL 5629092, at *4 (N.D. Ohio Sept. 21, 2020) (“Courts have consistently held that

a common law claim for negligent design, manufacture, inspection and failure to warn are

abrogated by Ohio Rev. Code § 2307.71(B).”); Nationwide Agribusiness Ins. Co. v. CNH Am.

LLC, 2014 WL 2520502, at *11 (N.D. Ohio June 4, 2014) (“[C]ourts have held that the OPLA

abrogates breach of warranty and strict product liability claims.”); Mitchell v. Proctor & Gamble,

2010 WL 728222, at *3 (S.D. Ohio Mar. 1, 2010) (“The OPLA has been held to abrogate claims

for strict products liability, negligent failure to warn, breach of express warranty, and breach of

implied warranty.”). Because no one asserts that an actual conflict between the law of New Jersey

and Ohio exists, the Court need not conduct a choice-of-law analysis at this juncture. Yagudayev

v. BMW of N. Am., LLC, Civ. No. 20-897, 2020 WL 6689799, at *6 (D.N.J. Nov. 13, 2020). The

Court, sitting in diversity, will “apply the substantive laws of its forum state.” Stephens v. Clash,

796 F.3d 281, 289 (3d Cir. 2015) (citation omitted).

Both state and federal courts have recognized that the NJPLA “controls any ‘product

liability action,’ which is defined as ‘any claim or action brought by a claimant for harm caused

by a product, irrespective of the theory underlying the claim, except actions for harm caused by

breach of an express warranty.’ The definition of ‘harm’ under the [NJ]PLA includes ‘personal

physical illness, injury or death.’ Thus, through the enactment of the [NJ]PLA, common law

claims of negligence, strict liability, or breach of an implied warranty that pertain to injury from a

product are no longer viable as separate claims. These claims are subsumed by the [NJ]PLA.”

Elezovic V. Motor Coach Indus., Inc., Civ. No. 22-110, 2022 WL 3316018, at *2 (D.N.J. Aug. 11,

2022) (emphasis in original) (first quoting N.J. Stat. Ann. § 2A:58C-1b(3); and then quoting N.J.

Stat. Ann. § 2A:58C-1b(2)); see also Hindermyer v. B. Braun Med Inc., 419 F. Supp. 3d 809, 817

(D.N.J. 2019) (“[T]he NJPLA generally subsumes common law product liability claims, thus

establishing itself as the sole basis of relief under New Jersey law available to consumers injured

by a defective product.” (quoting Repola v. Morbark Indus., Inc., 934 F.2d 483, 492 (3d Cir.

1991))); Sun Chem. Corp. v. Fike Corp, 235 A.3d 145, 156 (N.J. 2020) (“[A]side from breach of

express warranty claims, claims that sound in the type of products liability actions defined in the

PLA must be brought under the [NJ]PLA.”); Nikirk v. ConducTV Brands, 2021 WL 391621, at *4

(N.J. Super. Ct. App. Div. Feb. 4, 2021) (“[N]egligence and other common law claims, other than

for breach of express warranties, are subsumed within the NJPLA.”).

But a plaintiff may maintain a separate claim “when the ‘essential nature’ of the claim is

not that of a [NJ]PLA claim.” Hindermyer, 419 F. Supp. 3d at 818 (quoting Volin v. Gen. Elec.

Co., 189 F. Supp. 3d 411, 418 (D.N.J. 2016)). For instance, “[a] negligence claim predicating

liability on a breach of duty arising independent of the manufacturer’s duty to provide a non-

defective product would not be considered a product liability action even if the harm was caused

by the product.” Worrell v. Elliott & Frantz, 799 F. Supp. 2d 343, 351 (D.N.J. 2011); see

Hindermyer, 419 F. Supp. 3d at 823 (“To avoid NJPLA subsumption, a claimant must assert a

negligence claim that arises from the independent conduct of a defendant, which is unrelated to

the inherent defect in the product, itself.” (citation omitted)); see, e.g., Universal Underwriters Ins.

Grp. v. Pub. Serv. Elec. & Gas Co., 103 F. Supp. 2d 744, 748 (D.N.J. 2000) (finding that the

plaintiff’s negligence claim did not fall under the NJPLA, where “the claim asserted by the Plaintiff

is not related to a defect in the product (i.e. the electricity), but rather to the maintenance and

oversight of PSE & G’s emergency response service”).

A claim is subsumed by the NJPLA if “(1) it is brought by a claimant for harm caused by

a product, regardless of the theory underlying the claim; and (2) the harm suffered is of a type

listed in the definitional section.” Barrett v. Tri-Coast Pharmacy, Inc., 518 F. Supp. 3d 810, 824

(D.N.J. 2021) (citing Hindermyer, 419 F. Supp. 3d at 818). The Court must look at the “essence

of the claims and decide whether the plaintiff is disguising what would traditionally be considered

a products liability claim as an alternative cause of action.’” Id. at 824 (citation omitted).

Hartwell’s common-law claims for strict liability, negligence, breach of implied warranty,

and fraud or other misrepresentations, as well as her NJCFA claim, are based on the same

allegations of harm underlying her NJPLA claim—that she sustained physical injuries from her

use of contaminated eyedrops. (Compare ECF No. 39 ¶¶ 41, 51, 78, 94, 105, 119, 129, 139, 152,

166, 185 (all generally alleging that “[a]s a proximate result of all Defendants’ design,

manufacture, packaging, labeling, marketing, sale, and/or distribution of EzriCare Artificial Tears,

Plaintiff was injured catastrophically and was caused severe pain, suffering, disability, impairment,

loss of enjoyment of life, loss of care, comfort, and economic damages”), with id. ¶ 199 (NJPLA

claim) (“As a result of Defendants’ violations of the New Jersey [P]roducts Liability Act, Plaintiff

suffered permanent damage to her eyes and vision.”).) The essence of her claims is “what would

traditionally be a products liability claim.” Barrett, 518 F. Supp. 3d at 824.

In her opposition papers, Hartwell describes a new theory of negligence—that if EzriCare

“sold a product with its name without ever vetting that product in any way, this fact would

undoubtedly constitute negligence, especially with the product being one use in the human eye.”

(ECF No. 46 at 18.) It is unclear whether that theory involves allegations of harm different from

the harm underlying Hartwell’s NJPLA claim. Regardless, Hartwell’s new theory of negligence

described for the first time in her opposition papers cannot help to defeat a motion to dismiss. See

Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is

axiomatic that the complaint may not be amended by the briefs in opposition to a motion to

dismiss.”).

Thus, Counts One through Eight and Ten through Fourteen are subsumed by Hartwell’s

NJPLA claim under Count Fourteen.

2. Express Warranty Claim

Count Nine asserts a claim for breach of express warranty. To state a claim for breach of

express warranty under New Jersey law, a plaintiff must allege that (1) “Defendant made an

affirmation, promise or description about the product;” (2) “this affirmation, promise or

description became part of the basis of the bargain for the product;” and (3) “the product ultimately

did not conform to the affirmation, promise or description.” Hindermyer, 419 F. Supp. 3d at 829-

30 (quoting Snyder, 792 F. Supp. 2d at 721. The New Jersey U.C.C. defines an “express warranty”

as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer

which relates to the goods and becomes part of the basis of the

bargain creates an express warranty that the goods shall conform to

the affirmation or promise.

(b) Any description of the goods which is made part of the basis of

the bargain creates an express warranty that the goods shall conform

to the description.

[N.J. Stat. Ann. § 12A:2-313(1).]

Hartwell argues that “the EzriCare Product was presumed to be uncontaminated by the

language included on the label.” (ECF No. 46 at 19.) The complaint includes a copy of the

product’s label, but it does not specify which part of the label constitutes the express warranty

alleged. (ECF No. 39 ¶ 7.) The complaint also alleges that Hartwell “read and relied on these

express warranties provided by Defendants in the labeling, packaging, and advertisements.” (Id.

¶ 135.)

In her opposition papers, Hartwell implies that the label’s description of the product’s

“Uses” as “a protectant against further irritation . . . of the eye” and “for temporary relief of

discomfort due to minor irritations of the eye” was the express warranty alleged. (ECF No. 46 at

15.) But again, “[i]t is axiomatic that the complaint may not be amended by the briefs in opposition

to a motion to dismiss.” Zimmerman, 836 F.2d at 181. Besides, courts in this Circuit—and in

Ohio, for that matter—have refused to find that user instructions, or even labels representing that

a product is “safe and effective,” are express warranties. See In re Avandia Mktg. Sales Pracs. &

Prod. Liab. Litig., 588 F. App’x 171, 176-78 (3d Cir. 2014) (noting approvingly that an Ohio court

“refused to find the words ‘safe and effective’ to create an express warranty in the absence of

representations that a drug was free from all harmful side effects or was absolutely harmless”);

Volin, 189 F. Supp. 3d at 421 (rejecting that instructions in the owner’s manual constituted an

express warranty that the product would be “free from defects in material and workmanship and

fit for the ordinary purpose” of the product). Also relevant is that the EzraCare product label

qualifies itself, warning users to “[s]top use and ask a doctor if you experience” “eye pain,”

“changes in vision,” or “continued redness or irritation of the eye or if the condition worsens or

persists for more than 72 hours.” (ECF No. 39 ¶ 7.) See In re Avandia, 588 F. App’x at 178

(“Because GSK disclosed Avandia’s contraindications, risk factors, and potential side effects and

D’Apuzzo does not allege GSK made unqualified guarantees of safety or effectiveness, D’Apuzzo

has failed as a matter of New Jersey law to state an express warranty claim.”).

Thus, the Court finds that Hartwell does not state a claim for breach of express warranty.

3. NJPLA Claim

Count Fourteen asserts NJPLA violations for the defective design and manufacturing of

EzriCare artificial tears. (ECF No. 39 ¶ 198.)

To prove a defect, a plaintiff must show that “(1) the product was defective; (2) the defect

existed when the product left the hands of the defendant; (3) the defect proximately caused injuries

to the plaintiff; and (4) the injured plaintiff was a reasonably foreseeable user.” Hindermyer, 419

F. Supp. 3d at 823 (citing Myrlak v. Port Auth. of New York & New Jersey, 723 A.2d 45, 52 (N.J.

1999)).

a. Design Defect

To establish a prima facie case of design defect, the plaintiff must prove the availability of

a “technologically feasible and practical alternative design that would have reduced or prevented

the plaintiff’s harm without substantially impairing the reasonably anticipated or intended function

of the product.” Hindermyer, 419 F. Supp. 3d at 823-24 (citation omitted). No per se rule requires

a plaintiff to, “under all circumstances, provide a reasonable alternative design” at the pleadings

stage. Id. at 824. But to state a claim for design defect under the NJPLA, the plaintiff must “plead

either that the product’s risk [of harm] outweighs its [utility].” Id. (quoting Mendez v. Shah, 28 F.

Supp. 3d 282, 298 (D.N.J. 2014) (alterations in Hindermyer).

EzriCare argues that Hartwell merely recites the elements of a design-defect claim. The

Court disagrees. Hartwell attributes the contamination to the “lack of appropriate microbial

testing, formulation issues[,] . . . and lack of proper controls concerning tamper-evident

packaging.” (ECF No. 39 ¶¶ 1, 5.) For an alternative design, she alleges that EzriCare should

have formulated the product with preservatives, which “prevent the growth of bacteria in the

product,” or “new therapies—known as ‘phage’ therapies— . . . to treat antibiotic-resistant

bacteria, like the Pseudomonas Aeruginosa[,] . . . by deploying viruses that aim to attack bacteria,

fending off infections that traditional antibiotic drugs fail to stamp out.” (Id. ¶¶ 4, 11, 50.) And

as to the risk-utility element, Hartwell alleges that “EzriCare Artificial Tears is an inessential over-

the-counter product that does not treat or cure any serious disease.” (Id. ¶ 50.) Thinner allegations

than these have survived motions to dismiss. See, e.g., Barrett, 518 F. Supp. 3d at 826 (denying a

motion to dismiss a defective-design claim alleging that a pharmaceutical “was developed, mixed

and/or created in an insanitary and unsafe environment that contained or promoted the

development of harmful organisms such as bacteria, which was . . . unreasonably dangerous”).

Thus, Hartwell’s claim for design defect under the NJPLA may proceed.

b. Manufacturing Defect

A manufacturing defect exists if a product “deviated from the design specification,

formulae, or performance standards of the manufacturer or from otherwise identical units

manufactured to the same manufacturing specifications or formulae.” N.J. Stat. Ann. § 2A:58C-

2(a). “To determine whether a product contains a manufacturing defect, the ‘product may be

measured against the same product as manufactured according to the manufacturer’s standards.’”

Hindermyer, 419 F. Supp. 3d at 824 (quoting Mendez, 28 F. Supp. 3d at 298). “If the particular

product used by the plaintiff fails to conform to those standards or other units of the same kind, it

is a manufacturing defect.” Id. (quoting Mendez, 28 F. Supp. 3d at 298).

New Jersey products-liability law does not require the injured plaintiff “to prove a specific

manufacturer’s defect.” Id. (quoting Mendez, 28 F. Supp. 3d at 297). “[B]ecause the evidence of

a flaw in the manufacturing process is uniquely within the knowledge and control of the

manufacturer, ‘[p]roof that a product is not fit for its intended purposes requires only proof . . . that

something was wrong with the product.’” Id. (quoting Myrlak, 723 A.2d at 52) (some quotation

marks omitted); see Cole v. NIBCO, Inc., Civ. No. 13-7871, 2016 WL 10536025, at *16 (D.N.J.

Feb. 26, 2016) (“[A] plaintiff may demonstrate that a manufacturing defect exists with evidence

that in a general sense and as understood by a layman . . . ‘something was wrong’ with the product.”

(quoting Scanlon v. Gen. Motors Corp., Chevrolet Motor Div., 326 A.2d 673, 677 (N.J. 1974)).

That said, the “mere occurrence of an accident and the mere fact that someone was injured are not

sufficient to demonstrate the existence of a defect.” Hindermyer, 419 F. Supp. 3d at 824 (quoting

Myrlak, 723 A.2d at 52).

Based on these pleading standards, all favorable inferences, and a liberal reading of her

pleadings, Hartwell’s manufacturing-defect allegations are enough to survive a motion to dismiss.

She alleges that the manufacturer failed to perform “appropriate microbial testing” and lacked

“proper controls concerning tamper-evidence packaging.” (ECF No. 39 ¶ 21.) She also alleges

that the EzriCare product “deviated from the design specifications, formulae, or performance

standards of the manufacturer,” such that the product had been contaminated by the time she used

it. (Id. ¶ 196.) As a result, the allegations create a plausible inference that the product “fail[ed] to

conform to standards or other units of the same kind.” C.f. Hindermyer, 419 F. Supp. 3d at 824

Thus, Hartwell’s manufacturing-defect claim under the NJPLA may proceed.

4. NJPLA’s Immunity Provision

Although product sellers are subject to liability under the NJPLA, the Act includes an

immunity provision “to rescue persons it categorized as ‘product sellers’ from strict liability in

certain circumstances.” Allstate New Jersey Ins. Co. v. Amazon.com, Inc., Civ. No. 17-2738, 2018

WL 3546197, at *6 (D.N.J. July 24, 2018) (quoting Thomas v. Ford Motor Co., 70 F. Supp. 2d

521, 530 (D.N.J. 1999)). Thus, “by filing an affidavit correctly identifying the manufacturer of

the product,” a defendant seller can escape liability under the Act. Id.; N.J. Stat. Ann. § 2A:58C-

9(b). Even when a product seller submits the affidavit certifying the correct identity of the

manufacturer, a product seller may still be liable if the seller “exercised some significant control

over the design, manufacture, packaging or labeling of the product relative to the alleged defect in

the product which caused the injury, death or damage [; or]...if [t]he manufacturer has no known

agents, facility, or other presence within the United States[;] or [t]he manufacturer has no

attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable

from the assets of the bankruptcy estate.” Claypotch v. Heller, Inc., 823 A.2d 844, 852 (N.J. Super.

Ct. App. Div. 2003) (quoting N.J. Stat. Ann. § 2A:58C-9(c)(2), (3), (d)(1)). A product seller also

may be subject to liability “if it ‘knew or should have known of the defect in the product which

caused the injury, death or damage or the plaintiff can affirmatively demonstrate that the product

seller was in possession of facts from which a reasonable person would conclude that the product

seller had or should have had knowledge of the alleged defect in the product which caused the

injury, death or damage; or . . . created the defect in the product which caused the injury, death or

damage.’” Id. (citing § 2A:58C-9(d)(2), (3)). Therefore, “a product seller is relieved from liability

only if it is ‘truly innocent of responsibility for the alleged product and the injured party must

retain a viable claim against the manufacturer.’” Bashir v. Home Depot, Civ. No. 08-04745, 2011

WL 3625707, at *3 (D.N.J. Aug. 16, 2011) (quoting Claypotch, 823 A.2d at 852) (emphasis

added).

EzriCare claims to fall within the NJPLA provision of immunity because it submits an

affidavit of Ezriel Green, who is also EzriCare’s cofounder, stating that “EzriCare’s Artificial

Tears were manufactured and packaged by Global Pharma Healthcare Private Limited, whose

manufacturing facility is located in Tamil Nadu, India.” (Green EzriCare Aff. 9 4, ECF No. 43-

2.) Hartwell counters that the parties must engage in discovery to clarify EzriCare’s role in

bringing this product to market. (ECF No. 46 at 27.) The Court agrees—the present record does

not establish that EzriCare is “truly innocent of responsibility for the alleged product” as a matter

of law.

Thus, the Court rejects EzriCare’s claim of immunity at this juncture.

IV. CONCLUSION

For the reasons set forth above, and other good cause shown, Amazon’s motion is

GRANTED, EzriRx’s motion is DENIED, and EzriCare’s motion is GRANTED in part and

DENIED in part. All of Hartwell’s claims except those asserted against EzriCare and EzriRx

under the NJPLA are dismissed without prejudice. An appropriate Order follows.

Dated: May 31, 2024

ITED STATES DISTRICT JUDGE

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