Tyre v. Excel Industries, Inc.

——TS_ DISTRICT COURT

NORTHERN ED

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION FER 4 A 29e0

KAYLA TYRE, INDIVIDUALLY § CLERK, U‘S. DISTRICT COURT

AND AS NEXT FRIEND OF 8 BY $n

AUSTIN RYAN TYRE, § o_o

§

Plaintiff, §

vs. : NO. 4:19-CV-951-A

EACHL INDUSTRIES, INC., ET AL., :

Defendants. :

MEMORANDUM OPINION AND ORDER

Came on for consideration the motions of defendants, Excel

Industries, Inc. ("Excel"), Hustler Turf Equipment, Inc.

("Hustler"), and Lowe's Home Centers, LLC, which says it was

improperly named as Lowe's Companies, Inc. ("Lowe's") to

dismiss. The court, having considered the motions, the response

of plaintiff, Kayla Tyre, individually and as next friend of

Austin Ryan Tyre ("Austin"), the reply, the record, and

applicable authorities, finds that two of the motions should be

granted and the third denied at this time.

I.

Background

On October 9, 2019, plaintiff filed her original petition

in the District Court of Parker County, Texas, 437? Judicial

District. Doc.+ 1, Ex. E. On November 12, 2019, Excel and Hustler

filed their notice of removal, bringing the action before this

court. Doc. 1. Defendants each filed motions to dismiss

plaintiff's original petition. Docs. 8-16. Plaintiff did not

seek remand of the action. By order signed December 16, 2019,

the court dismissed plaintiff's claims against defendant Bill

Kelt, who had been improperly joined. Doc, 30. The order

required plaintiff to file an amended complaint bearing in mind

the pleading requirements of the Federal Rules of Civil

Procedure, Local Civil Rules of this court, and the

undersigned's judge-specific requirements. Id. Plaintiff failed

to timely comply with the order to replead and, by order signed

January 7, 2020, the court ordered plaintiff to show cause why

her claims should not be dismissed. Doc. 32. Plaintiff filed her

amended complaint and the court determined that no further

action would be taken at that time with regard to her violation

of the order to replead. Doc. 35.

As defendants note, plaintiff's amended complaint, Doc. 33,

is virtually identical to her original petition,’ This is a

products liability action wherein plaintiff alleges that Austin

was injured on May 5, 2019, by a Hustler Raptor 52" ZTR mower

("the mower") manufactured and sold by Excel and Hustler and

"Doc, _ "reference is to the number of the item on the docket inthis action

? Lowe's contends that plaintiff failed to amend to include the proper defendant. See Doc. 1, Ex. J (agreement of

plaintiff to name Lowe's Home Centers, LLC, rather than Lowe's Companies, Inc., as the proper defendant),

subsequently sold by Lowe's that was being driven by his

grandfather.’ Specifically,

Austin walked up to the mower as his grandfather's

back was facing towards Austin. As his grandfather

turned the [] mower, the mower began to move towards

Austin before his grandfather was able to even see

that Austin was in its path. Suddenly and

unexpectedly, the [] mower blade came into contact

with Austin's leg, struck his leg causing extensive

damage tothe leg to where a portion of his leg had to

be amputated. .

Id. | 9.

Plaintiff's amended pleading is so poorly worded that the

court has difficulty discerning what causes of action are

intended to be asserted.’ The "Facts" section contains only five

paragraphs, including paragraph 9, quoted above. Doc. 33, {4 9-

13. Three of the paragraphs are based on information and belief

and make the illogical allegation that the mower was

manufactured and sold by both Excel and Hustler, then

subsequently sold by Lowe's. Id. 4 10-12.

The alleged strict liability of each defendant is set forth

in a series of paragraphs that are identical except for the name

of the defendant and, in the case of Lowe's, omitting the

allegation that it manufactured the mower. Id: J 14-17 (Excel),

{{ 28-31 (Hustler), and 4 42-45 (Lowe's). The first paragraph

of each section is worded so as to allege that while engaged in

3 Plaintiff alleges that the mower was "designed for commercial use in the maintenance of lawns." Doc. 33, { 13.

‘ The complaint contains so few facts that if raises more questions than it answers. For example, there is no

allegation that Kayla Tyre is the mother of Austin.

the manufacture and sale of the mower, the defendant

manufactured and sold the mower, id. Ff 14 & 28, or, in the case

of Lowe's, that while engaged in the sale of the mower, Lowe's

sold the mower. Id. § 42. Further, plaintiff alleges that each.

defendant intended and expected that the mower "so introduced

and passed on in the course of trade would ultimately reach a

consumer or user in the condition in which it was originally

sold." Id.

Plaintiff next alleges that the mower failed in its design

to:

A, Prevent it's [sic] operator to blindly drive

the ZTR mower forward while facing away from the

direction the mower is moving;

B. Prevent the mower from being able to

completely run over and sever the leg of a

child/person;

C. Allow the blade of the mower to drop at the

contact of flesh so as to only cause bruising and

slight laceration instead of amputation of any body

part that comes in contact with the blade while it is

in operation;

D. Prevent the mower blade from being exposed to

come into contact with persons who may be adjacent to

the mower; and

E, Prevent the mower from moving at such a high

rate of speed when the operator is making a 180 degree

turn so as to allow the operator to make such quick

movement in operation of the mower blindly.

Doc. 33, §§ 15, 29, 43. Plaintiff alleges that there is strict

liability for these defects in design. Id. | 17, 31, 45. She

then goes on to allege that the exact same design defects

constitute negligence on the part of Excel and Hustler.® id.

18, 32.

The remaining claims are equally poorly alleged so as to

amount to no claims at all. Many of the allegations are wholly

conclusory, such as the allegations in paragraph 46.

Ir.

Grounds of the Motions

Lowe's argues that plaintiff has failed to name the proper

entity as a defendant and that it is statutorily immune from

product liability claims as a non-manufacturing seller in any

event. Doc, 43,

Excel and Hustler argue that plaintiff has failed to plead

sufficient facts to state any plausible products liability claim

or warranty claim; that she has failed to plead sufficient facts

to rely on the doctrine of res ipsa loquitur; and that she has

failed to plead facts to support any claim for exemplary

damages. Doc. 40.

All defendants have also filed a motion to dismiss the

claims of plaintiff, individually, on the ground that she failed

to plead any factual circumstances that would allow recovery of

the damages she seeks. Doc. 37.

3 The allegations A-E are utterly nonsensical. (For example, implicit in the concept of moving forward is that one is

facing in the direction he is moving. And, how a mower is supposed to know whether its blade has touched flesh as

opposed to any other substance is never explained.) In addition, plaintiff aileges that it was negligent to failure to

properly warn about the condition of the mower "and its equipment and/or parts." Doc, 33, ff 18, 32. The condition

is never described, Nor is there any allegation anywhere in the pleading that equipment or parts were defective.

IIl.

Applicable Pleading Standards

Rule 8(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.

It requires that a complaint contain "a short and plain

statement of the claim showing that the pleader is entitled to

relief," Fed. R. Civ. P. 8{a}(2), "in order to give the

defendant fair notice of what the claim is and the grounds upon

which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotation marks and ellipsis omitted). Although

a complaint need not contain detailed factual allegations, the

"showing" contemplated by Rule 8 requires the plaintiff to do

more than simply ailege legal conclusions or recite the elements

of a cause of action.® Twombly, 550 U.S. at 555 & n.3. Thus,

which a court must accept all of the factual allegations in the

complaint as true, it need not credit bare legal conclusions

that are unsupported by any factual underpinnings. See Ashcroft

v. Igbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can

provide the framework of a complaint, they must be supported by

factual allegations.").

Moreover, to survive a motion to dismiss for failure to

Twombly holds that the old test of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that a complaint cannot be

dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim that would entitle him to relief, no longer applies, 550 U.S, at 562-63, Despite purporting to

recognize her obligations under Twombly and Iqbal, plaintiff recites the Conley test as being the standard by which

her pleading should be judged. Doc. 46 at 3.

‘

state a claim, the facts pleaded must allow the court to infer

that the plaintiff's right to relief is plausible. Igbal, 556

U.S. at 678. To allege a plausible right to relief, the facts

pleaded must suggest Liability; allegations that are merely

consistent with unlawful conduct are insufficient. Id. In other

words, where Che facts pleaded do no more than permit the court

to infer the possibility of misconduct, the complaint has not

shown that the pleader is entitled to relief. Id. At 679.

"Determining whether a complaint states a plausible claims for

relief . . . [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense." Id.

As the Fifth Circuit has explained: "Where the complaint is

devoid of facts that would put the defendant on notice as to

what conduct supports the claims, the complaint fails to satisfy

the requirement of notice pleading." Anderson v. U.S. Dep't of

Housing & Urban Dev., 554 F.3d 525, 528 (5 Cir. 2008). In sum,

"a complaint must do more than name laws that may have been

violated by the defendant; it must also allege facts regarding

what conduct violated those laws. In other words, a complaint

must put the defendant on notice as to what conduct is being

called for defense in a court of law." Id, At 528-29. Further,

the complaint must specify the acts of the defendants

individually, not collectively, to meet the pleading standards

of Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699

(5 Cir. 1999); see also Searcy v. Knight (In re Am. Int'l

Refinery}, 402 B.R. 728, 738 (Bankr. W.D. La, 2008).

Rule 9(b) sets forth the heightened pleading standard

imposed for fraud claims: "In alleging fraud or mistake, a party

must state with particularity the circumstances constituting

fraud or mistake." The Fifth Circuit requires a party asserting

fraud to "specify the statements contended to be fraudulent,

identify the speaker, state when and where the statements were

made, and explain why the statements were fraudulent." Hermann

Holdings, Ltd. V. Lucent Techs., Inc,, 302 F.3d 552, 564-65 (5

Cir. 2002) (internal quotations and citations omitted).

Succinctly stated, Rule 9(b) requires a party to identify in its

pleading "the who, what, when, where, and how" of the events

constituting the purported fraud. Dorsey v. Portfolio Equities,

Inc., 540 F.3d 333, 339 (5 Cir. 2008). Rule 9{b) applies to all

cases where the gravamen of the claim is fraud even though the

theory supporting the claim is not technically termed fraud.

Frith v, Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 742

(S.D. Tex. 1998). Statutory claims based on allegations of

fraud, such as violations of the Texas Insurance Code, as well

as those for fraud, fraudulent inducement, fraudulent

concealment and negligent misrepresentation are subject to the

requirements of Rule 9{b}). Motten v. Chase Home Fin., 831 F.

Supp. 2d 988, 994 (S.D. Tex. 2011); Berry v. Indianapolis Life

Ins. Co., 608 F. Supp. 2d 785, 800 (N.D. Tex. 2009); Frith, 9 F.

Supp. 2d at 742.

In considering a motion to dismiss for failure to state a

claim, the court may consider documents attached to the motion

if they are referred to in the plaintiff's complaint and are

central to the plaintiff's claims. Scanlan v. Tex. A&M Univ.,

343 F.3d 533, 536 (5‘* Cir. 2003). The court may also refer to

matters of public record. Papasan v. Allain, 478 U.S. 265, 268

n.1 (1986); Davis v. Bayless, 70 F.3d 367, 372 n.3 (5™ Cir.

1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5 Cir. 1994).

This includes taking notice of pending judicial proceedings.

Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.i (5 Cir.

2003). And, it includes taking notice of governmental websites.

Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5™ Cir.

2005); Coleman v. Dretke, 409 F.3d 665, 667 Cir. 2005).

IV.

Analysis

A. Claims Against Lowe's .

Lowe's Companies, Inc., contends that it is not a proper

party to this action. Plaintiff apparently concedes this to be

the case as she agreed to substitute Lowe's Home Centers, LLC,

as a defendant. Doc. 1, Ex. □□ She never bothered to do so.

In any event, plaintiff alleges that the incorrectly named

Lowe's entity was not a manufacturer of the allegedly defective

product, but only the seller. Doc. 33, § 10. But, a seller who

did not manufacture a product is not liable for harm caused to

the claimant by that product unless the claimant proves:

{1} that the seller participated in the design of

the product;

(2) that the seller altered or modified the product

and the and the claimant's harm resuited from that

alteration or modification;

(3) that the seller installed the product, or had

the product installed, on another product and the

claimant's harm resulted from the product's

installation onto the assembled product;

(4) that:

{A) the seller exercised substantial control over

the content of a warning or instruction that

accompanied the product;

(B} the warning or instruction was inadequate;

and

(C) the claimant's harm resulted from the

inadequacy of the warning or instruction;

(5) that:

(A) the seller made an express factual

representation about an aspect of the product;

{(B) the representation was incorrect; ©

{C) the claimant relied on the representation in

obtaining or using the product; and

(D) if the aspect of the product had been as

represented, the claimant would not have been harmed

by the product or would not have suffered the same

degree of harm;

(6) that:

(A) the seller actually knew of a defect to the

product at the time the seller supplied the product;

and

(B) the claimant's harm resulted from the defect;

or

(7} that the manufacturer of the product is:

{A} insolvent; or

(B}) not subject to the jurisdiction of the court.

10

Tex. Civ. Prac. & Rem. Code § 82.003({a). Plaintiff has not

pleaded any facts to show that any of the exceptions exists.

Instead, she has merely regurgitated some of the statutory

language. See, e.g., Doc. 33, 446. She has made no attempt to

meet the pleading requirements of Fed. R. Civ. P. 9(b) as to the

alleged misrepresentations. Harbuck v. Ford Motor Co., No. 4:18-

CV-576-A, 2018 WL 4375079, at *2-3 (N.D. Tex. Sept. 13, 2018).

And, as the Supreme Court has stated, a formulaic recitation of

the elements of a cause of action will not suffice. Twombly, 550

U.S. at 555. The fact that plaintiff failed to respond to the

motion appears to be a recognition that she has no claims

against Lowe's.

B. Claims of Kayla Tyre, Individually

By separate motion, defendants urge that the individual

claims of plaintiff must be dismissed. As they point out,

plaintiff has failed to plead any cognizable physical injury for

which she, individually, would be entitled to damages since she

did not witness the accident the subject of this action. Roberts

v. Williamson, 111 S.W.3d 113, 118-19 (Tex. 2003); Boyles v.

Kerr, 855 S.W.2d 593, 598 (Tex, 1993}. Plaintiff apparently

recognizes that she has no individual claims, since she failed

to respond to this motion.

Cc. Claims Against Excel and Hustler

The elements of a design defect claim are: {1) the product

was defectively designed so as to render it unreasonably

dangerous; {2) a safer alternative design existed; and (3) the

defect was a producing cause of the injury. Timpte Indus., Inc.

v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). In turn, in

determining whether a design defect causes a product to be

unreasonably dangerous, Texas courts apply a risk-utility

analysis that requires consideration of:

(1) the utility of the product to the user and to the

public as a whole weighed against the gravity and

likelihood of injury from its use; (2) the

availability of a substitute product which would meet

the same need and not be unsafe or unreasonably

expensive; (3) the manufacturer's ability to eliminate

the unsafe character of the product without seriously

impairing its usefulness or significantly increasing

its costs; {4) the user's anticipated awareness of the

dangers inherent in the product and their avoidability

because of general public knowledge of the obvious

condition of the product, or of the existence of

suitable warnings or instructions; and (5) the

expectations of the ordinary consumer.

Id. And, a safer alternative design is one that in reasonable

probability would have prevented or significantly reduced the

risk of the claimant's injury without substantially impairing

the product's utility, and was economically and technologically

feasible at the time the product left the control of the

manufacturer by the application of existing or reasonably

achievable scientific knowledge. Tex. Civ. Prac. & Rem. Code §

82.005{b); Scott v. Dorel Juvenile Grp., Inc., 456 F. App'x 450,

454 (5° Cir, 2012). A plaintiff must plead facts to show that a

12

safer alternative design exists to state a plausible claim for

design defect. Barragan v. General Motors, LLC, No. 4:14-CV-93-

DAE, 2015 WL 5734842, at *5 (W.D. Tex. Sept. 30, 2015).

Here, plaintiff acknowledges her pleading obligations, Doc.

46 at 8-9, but fails to point out where she has actually pieaded

the necessary facts. Her pleading must allege sufficient facts

to support the plausibility of the proposed safer design.

Rodriguez v. Gilead Sciences, Inc., No. 2:14-CV-324, 2015 WL

236621, at *3-4 (S.D. Tex. Jan. 16, 2015). And, she must allege

facts to show economic and technical feasibility at the time of

manufacture. Barragan, 2016 WL 3519675, at *4.

In order to plead a manufacturing defect, plaintiff must

allege sufficient facts to show that the mower deviated in its

construction or quality from the specifications or planned

output in a manner that rendered it unreasonably dangerous.

Casey v. Toyota Motor Eng'g & Mfg. N. Am., Inc., 770 F.3d 322,

326 (5°* Cir. 2014). And, she must allege that the mower was

defective when it left the manufacturer and the defects were a

producing cause of her injuries. Cooper Tire & Rubber Co. v.

Mendez, 204 S.W.3d 797, 800 (Tex. 2006). Again, plaintiff fails

to identify the facts she pleaded that make this claim

plausible.

Excel and Hustler also address claims for breach of

warranty. Doc. 40 at 13-16. Plaintiff does not respond to any of

13

these arguments, apparently conceding that she has not pleaded

such claims.

Plaintiff acknowledges that to establish negligence ina

products liability case, she must show that the defendant failed

to use ordinary care in the design or production of the product.

Sipes v. Gen. Motors Corp., 946 S.W.2d 143, 159 (Tex. App.—

Texarkana 1997, writ denied). In this regard, the court has no

idea if plaintiff could state such a claim if she could file a

coherent pleading.

Excel and Hustler also address res ipsa loquitur, which

plaintiff acknowledges to be a rule of evidence and not of

substantive law. Doc. 46 at 11. {She inexplicably concludes with

the argument that she has pleaded sufficient facts to support

her cause of action for res ipsa loquitur. Id. at 12.) In any

event, the doctrine does not apply when any one of multiple

persons might have been responsible for the injury. Discount

Tire Co. of Tex., Inc. v. Cabanas, 553 S.W.3d 566, 571 (Tex.

App.-San Antonio 2018, pet. denied). Further, plaintiff has

pleaded that the mower was under the control of Austin's

grandfather, not a defendant. Hayles v. Gen. Motors Corp., 82 F.

Supp. 2d 650, 659 (S.D. Tex. 1999) (for res ipsa loguitur to

apply, the character of the accident must be such that it would

not ordinarily occur in the absence of negligence and the

instrumentality causing the injury must have been under the sole

Management and control of the defendant). The doctrine would not

apply here.

Finally, Excel and Hustler argue that plaintiff has failed

to plead any facts to support her claim for exemplary damages.

Although plaintiff has recited nothing but the definition of

gross negligence, Tex. Civ. Prac. & Rem. Code § 41.001(11), it

would be premature to dismiss her request for exemplary damages

at this time.

V.

Leave to Amend

At the conclusion of her response to the motions to

dismiss, plaintiff includes a request that, if the court decides

to grant the motions, she be allowed to amend her complaint.

Doc, 46 at 13. The court ordinarily would not grant the request.

Pursuant to the Local Civil Rules of this court, a document may

contain more than one pleading, motion, or other paper, but the

document must clearly identify the motion in its title. Local

Civil Rule LR 5.1{c¢c). Plaintiff's response does not give notice

that it includes a motion for leave to amend. Further, a motion

for leave to amend must be accompanied by the proposed amended

pleading. Local Civil Rule LR 15.1(a). Here, plaintiff has not

provided her proposed amended pleading. Rather, it does not

appear that she has any idea what would be required. She:

represents that she "attempted to comply in good faith" with the

court's earlier order that she file an amended complaint. Doc.

46 at 13. However, as defendants have pointed out, the amended

complaint is virtually identical to the state court petition.

Plaintiff made no attempt to comply with the Federal Rules of

Civil Procedure or to take into account any of the deficiencies

pointed out by defendants' prior motions to dismiss.

Although plaintiff has already had an opportunity to amend,

which she squandered, the court is concerned that Austin really

might have a viable claim against either Excel or Hustler if

represented by competent counsel.’ The court is not allowing

leave to assert claims against Lowe's, because plaintiff failed

to respond to its motion to dismiss and because it does not

appear that she could state a plausible claim against it. Nor is

the court allowing plaintiff to state claims on her own behalf,

as she failed to respond to that motion and it is apparent that

she did not witness the accident.

VI.

order :

The court ORDERS that the motion of Lowe's to dismiss be,

and is hereby, granted, and plaintiff's claims against Lowe's

be, and are hereby, dismissed.

? The court’s concern ‘bout the quality of plaintiffs representation is exemplified by counsel's having filed an

appendix in support of plaintiffs response to the motions to dismiss containing only the original petition and

amended complaint, which were already in the record.

16

The court further ORDERS that defendants' motion to dismiss

the claims of plaintiff, individually, be, and are hereby,

granted, and that plaintiff's individual claims be, and are

hereby, dismissed.

The court further ORDERS that the motion of defendants

Excel and Hustler to dismiss be, and is hereby, denied.

The court determines that there is no just reason for delay

in, and hereby directs, entry of final judgment as to the

dismissal of plaintiff's claims against Lowe's and as to the

dismissal of plaintiff's individual claims against all

defendants.

The court further ORDERS that by February 28, 2020, Austin,

through his next friend, Kayla Tyre, file an amended complaint

which will include only claims against Excel and/or Hustler. The

court expects a meaningful and coherent pleading to be filed.

The court is concerned that Kayla Tyre has failed to retain an

attorney to represent Austin who is capable of preparing a

coherent pleading that complies with the pleading requirements

of Fed. R. Civ. P. 8 as explained in Twombly and Iqbgal and with

the requirements of Fed. R. Civ. P. 9{b).

17

Failure to comply with this order in any respect may result

in the dismissal of plaintiff's claims against Excel and Hustler

without further notice.

SIGNED February 14, 2020.

/ oe

we

JGHN McBRYDE

nited States District Jfidge

18