Boggess v. Positec Tool Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

TERESA L. BOGGESS,

Plaintiff,

v. Civil Action No. 2:23-cv-00651

POSITEC TOOL CORPORATION, t/a,

a/k/a, d/b/a POSITEC USA, INC.,

and WAL-MART STORES, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendant Wal-Mart Stores, Inc.’s

(“Walmart”), Motion to Dismiss Plaintiff’s Complaint, ECF No. 4;

ECF No. 5 (memorandum in support), which is ORDERED dismissed

inasmuch as plaintiff thereafter has filed an amended complaint,

see ECF No. 17. Pending now is Walmart’s Renewed Motion to

Dismiss Plaintiff’s Amended Complaint, ECF No. 18; ECF No. 19

(memorandum in support) (hereinafter “Renewed Mot.”). Plaintiff

timely filed a response to the Renewed Motion, ECF No. 25 (“Pl.

Resp.”), and Walmart replied, ECF No. 27 (“Walmart Reply”). The

motion is fully briefed.

I. Background

The following allegations are drawn from the

plaintiff’s Amended Complaint, ECF No. 17 (“Am. Compl.”), and

are regarded as true for the purposes of the Renewed Motion to

Dismiss.

Plaintiff Teresa L. Boggess (“plaintiff” or “Boggess”)

resides in Mingo County, West Virginia. Am. Compl. ¶ 1.

Defendant Positec Tool Corporation d/b/a Positec USA, Inc.

(“Positec”) was and is a corporation registered in and with its

principal place of business in North Carolina. Id. ¶ 2.

Positec “systematically conducts business in” West Virginia and

“sells, distributes, and/or places hedge trimmers into the

stream of commerce” in West Virginia. Id. ¶ 3. Defendant Wal-

Mart Stores, Inc. (“Walmart”) is a Delaware corporation with its

principal place of business in Arkansas and which “sells,

distributes, and/or places hedge trimmers into the stream of

commerce” in West Virginia. Id. ¶ 4.

At some point prior to October 3, 2021, plaintiff

purchased a Hyper Tough HT10-401-002-02 20 3.7 Amp Electric

Hedge Trimmer (hereinafter, the “hedge trimmer”) from a Walmart

store in Logan, West Virginia. Id. ¶ 8. The Hyper Tough hedge

trimmer is ”designed, manufactured, assembled, sold, and/or

distributed” by Positec, allegedly “under the substantial

control of” Walmart. Id. ¶ 9. Plaintiff alleges that Positec

advertises on its website that “when client corporations such as

[Walmart], ‘choose Positec as [their] private brand supplier,’

those clients are able ‘to tailor a complete line of power tools

and outdoor equipment that meet the specific needs of their

customers.’” Id. ¶ 15 (quoting the Positec website without

citation).

According to plaintiff, the “Hyper Tough” brand is a

private brand of products “that is exclusively sold, marketed,

and distributed to consumers by” Walmart. Id. ¶ 10. Indeed,

plaintiff alleges that the “Hyper Tough” brand name is a

“trademark owned by Walmart Apollo, LLC,” which is a “wholly

owned subsidiary of” Walmart. Id. ¶ 11. Walmart allegedly

commissions and “exercises and maintains substantial control

over” the ”design, manufacture, and assembly” of its

“proprietary Hyper Tough range of products” through various

manufacturers, including Positec. Id. ¶ 12, 13. Plaintiff

alleges that Walmart exercises such control “in order to create

a line of tools that will meet certain cost, functionality, and

quality standards that [Walmart] deems to be attractive to its

consumers, profitable for [Walmart], and suitable to represent

[Walmart’s] exclusive Hyper Tough brand name in the

marketplace.” Id ¶ 14.

Walmart “extensively markets its Hyper Tough” line of

tools to its customers as “trustworthy,” using the slogan “Hyper

Tough tools[:] Find everything you need from a brand you trust.”

Id. ¶ 17. Specifically, the hedge trimmer model at issue in

this matter “is exclusively sold, marketed, and distributed by”

Walmart, which “commissioned, directed, and substantially

controlled” the hedge trimmer’s “design, manufacture, and

assembly.” Id. ¶ 18. The hedge trimmer was marketed by

defendants Walmart and Positec “as safe for the non-professional

home use, stating, inter alia, that it has a ‘Dual safety

trigger design so this trimmer only activates when you mean for

it to.’” Id. ¶ 27 (source of marketing language unspecified).

Hyper Tough tools, including the hedge trimmer, “are

marketed under the trademarked Hyper Tough brand, and do not

clearly disclose that there is any company involved in their

design, manufacture, or assembly other than Hyper Tough.” Id. ¶

16. There was “no apparent disclosure . . . that Positec

participated in the manufacture of the hedge trimmer.” Id. ¶

18. The court notes that, as acknowledged by plaintiff earlier

in her complaint, Hyper Tough is a trademark allegedly owned by

a Walmart subsidiary and is not a company. See id. ¶ 11.

On October 3, 2021, plaintiff was “properly operating

the hedge trimmer with all due care and attention” while

trimming small shrubs on her residential property. Id. ¶ 19.

After a “thin shrub branch” lodged in the hedge trimmer, its

blades “ceased moving.” Id. ¶ 20. Plaintiff then “released the

hedge trimmer’s operating button, properly turning” it off, and

set it down. Id. Plaintiff alleges she “[did] everything to

safely power off and disengage the hedge trimmer in accordance

with the instructions,” and, with the “hedge trimmer off, motor

silent, and the blades motionless,” plaintiff proceeded to

“manually remove the shrub branch lodged within the blades.”

Id. ¶ 21. When plaintiff removed the shrub branch, “the hedge

trimmer suddenly and unexpectedly reengaged with the blades

moving.” Id.

As a result, plaintiff “suffered severe cuts and

lacerations to her nerves and tendons in three of her fingers on

her left hand, requiring emergency care, subsequent surgeries,

and extensive physical therapy.” Id. ¶ 22. Plaintiff alleges

she suffered various economic and noneconomic damages. Id. ¶

23.

On February 18, 2022 – after plaintiff was injured and

Walmart “was notified of her injury” – an agent of “Wal-mart,

Positec, [and/or] their insurance carrier(s) . . . came to Ms.

Boggess’ home and took possession of the hedge trimmer.” Id. ¶

39. Plaintiff had not yet retained counsel or “ha[d] a

qualified independent expert inspect, test, and document the

condition of the hedge trimmer.” Id.

On September 28, 2023, plaintiff filed her original

complaint. ECF No. 1. Defendant Walmart timely filed its

original motion to dismiss, arguing that West Virginia’s

Innocent Seller Statute, W. Va. Code § 55-7-31, barred

plaintiff’s suit against it. ECF No 4, 5. After that motion

was fully briefed, plaintiff filed a motion for leave to amend

her complaint, ECF No. 11, which was unopposed. The court

granted plaintiff’s motion for leave to amend and ordered her

Amended Complaint be contemporaneously entered, ECF No. 16

(order), ECF No. 17 (Amended Complaint). As in her original

complaint, plaintiff’s Amended Complaint alleges four counts:

Count I, “Strict Products Liability as to All Defendants”; Count

II, “Strict Liability – Failure to Warn as to All Defendants”;

Count III – “Negligence as to All Defendants”; and Count IV –

“Breach of Implied Warranties of Merchantability and Fitness for

a Particular Purpose as to All Defendants.” Am. Compl. ¶ 40-73.

Defendant Walmart timely filed its Renewed Motion to

Dismiss Plaintiff’s Amended Complaint, again only contending

that plaintiff’s suit against Walmart is barred by West

Virginia’s Innocent Seller Statute, W. Va. Code § 55-7-31, and

must thus be dismissed under Rule 12(b)(6). In the Renewed

Motion, Walmart alternatively “requests” that if the court

denies the motion, the court “permit only limited discovery as

to Walmart with respect to the narrow exception(s) to the

Innocent Seller Statute.” Renewed Mot. 10.

II. Applicable Law

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

requires a pleading to contain “a short and plain statement of

the claim showing . . . entitle[ment] to relief.” Fed. R. Civ.

P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007). A party

may test the sufficiency of a pleading by moving under Rule

12(b)(6) to dismiss it for “failure to state a claim upon which

relief can be granted.” See Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555-58 (2006).

In order to defeat a 12(b)(6) motion, a complaint must

contain “enough facts to state a claim that is plausible on its

face.” Twombly, 550 U.S. at 570. The court, at this early

stage, “must accept as true all of the factual allegations

contained in the complaint.” Erickson, 551 U.S. at 94 (citing

Twombly, 550 U.S. at 555-56). Further, all reasonable

inferences are drawn in favor of the plaintiff. E. I. du Pont

de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir.

2011) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250 (4th Cir. 2009)). “Although for the purposes

of a motion to dismiss we must take all of the factual

allegations in the complaint as true, we are not bound to accept

as true a legal conclusion couched as a factual allegation.”

Iqbal, 556 U.S. at 678.

III. Discussion

Walmart’s sole argument in their Renewed Motion is

that plaintiff has failed “to state a claim upon which relief

can be granted because [West Virginia’s] Innocent Seller Statute

prohibits the product liability claims asserted against Walmart

in this case.” Renewed Mot. 5. Specifically, Walmart contends

that the Amended Complaint fails to establish that Walmart can

be held liable under two potentially relevant exceptions to the

Innocent Seller Statute, W. Va. Code §§ 55-7-31(b)(2), (9), and

that the Amended Complaint must thus be dismissed. Plaintiff

does not dispute that the Innocent Seller Statute applies in

this matter. See generally Pl. Resp.

a. Innocent Seller Statute

In 2017, West Virginia enacted an “Innocent Seller”

statute, which its sponsors intended to “limit[] product

liability action against seller (sic) other than the

manufacturer of the product except in certain circumstances.”

West Virginia House Journal, 2017 Reg. Sess. 3/8/2017. The

Innocent Seller statute establishes that “[n]o product liability

action shall be maintained against a seller unless” one or more

of thirteen exceptions applies. W. Va. Code § 55-7-31(b); see

Canterbury v. FCA US LLC, 2:21-cv-00017, 2021 WL 1032307, *2

(S.D.W. Va. Mar. 17, 2021).

The statute defines a “product liability action” as:

[A]ny civil action brought against a

manufacturer or seller of a product, based in

whole or in part on the doctrine of strict

liability in tort, for or on account of

personal injury, death or property damage

caused by or resulting from:

(A) The manufacture, construction, design,

formula, installation, preparation,

assembly, testing, packaging, labeling,

marketing or sale of a product;

(B) The failure to warn or protect against

a danger or hazard in the use, misuse

or unintended use of a product; or

(C) The failure to provide proper

instructions for the use of a product.

§ 55-7-31(a)(4). The statute defines “seller” as “a wholesaler,

distributor, retailer, or other individual or entity, other than

a manufacturer, that is regularly engaged in the selling of a

product whether the sale is for resale by the purchaser or is

for use or consumption by the ultimate consumer.” § 55-7-

31(a)(5). The Amended Complaint, “clearly implicates the

Innocent Seller [S]tatute” because plaintiff has brought two

claims of strict product liability, Am. Compl. ¶ 40-54, against

Walmart, an undisputed seller under the statute. Canterbury,

2021 WL, *2.

The statute “prohibits a cause of action against a

seller of a product except in thirteen narrow circumstances.”

Id.; see § 55-7-31(b). Of these, Walmart contends that only the

following two exceptions apply in this matter:

(b) No product liability action shall be

maintained against a seller, unless:

* * *

(2) The seller exercised substantial

control over the aspect of the

manufacture, construction, design,

formula, installation, preparation,

assembly, testing, labeling, warnings or

instructions of the product that was a

proximate cause of the harm for which

recovery is sought;

* * *

(9) The seller repackages the product or

has placed his or her own brand name or

label on the product: Provided, That this

does not include a seller, who is not

otherwise a manufacturer, who:

(1) Did not exercise substantial

control as described in subdivision

(2) of this subsection; and

(2) Discloses the identity of the

actual manufacturer of the product.

§ 55-7-31(b). Though plaintiff implies that other exceptions

may apply, plaintiff does not affirmatively argue how any do.

See Pl. Resp. 6 (“At this early stage in the litigation . . . at

least two of these statutorily enumerated situations clearly

appear to apply in this action, and have been pleaded in the

Amended Complaint.”). Accordingly, the court only addresses

whether plaintiff has stated a claim under § 55-7-31(b)(2) or

(9).

Inasmuch as § 55-7-31(b)(9) implicates § 55-7-

31(b)(2), in order for plaintiff to state a claim under both,

plaintiff must plead that Walmart exercised “substantial

control” as described in § 55-7-31(b)(2). See § 55-7-31(b)(2),

(9). Further, to state a claim under § 55-7-31(b)(9), plaintiff

must additionally plead that Walmart “repackages the product or

has placed [its] own brand name or label” thereon and that

Walmart did not “[d]isclose the identity of the actual

manufacturer of the product.” Id. at (9).

b. Substantial Control - § 55-7-31(b)(2)

Both exceptions at issue in this motion apply only if

“[t]he seller exercised substantial control over the aspect of

the manufacture, construction, design, formula, installation,

preparation, assembly, testing, labeling, warnings or

instructions of the product that was a proximate cause of the

harm for which recovery is sought.”

In its Renewed Motion, Walmart contends that the

Amended Complaint alleges only “in a conclusory fashion” that

Walmart exercised “substantial control over the manufacture and

design of the product at issue,” and that the Amended Complaint

failed entirely to allege that “Walmart exercised substantial

control over the aspect of the manufacture or design of the

Hedge Trimmer that was a proximate cause of Plaintiff’s harm.”

Renewed Mot. 7 (emphasis in original). Walmart acknowledged

that the Amended Complaint alleges that Walmart establishes

certain quality standards for the hedge trimmer, uses the Hyper

Tough brand, and owns the trademark rights of the Hyper Tough

brand. Id. Nonetheless, because the dual safety trigger design

is “the only factual design or manufacture issue that the

Amended Complaint identifies,” Walmart argues that plaintiff has

failed to state a claim because the Amended Complaint fails to

allege that Walmart exercised significant control over its

design or manufacture. Id.

In response, plaintiff rebuts Walmart’s argument in

three ways. First, plaintiff contends that she “specifically

alleged Walmart exercised substantial control over the entire

production of the hedge trimmer from inception to sale,” as

supported by Positec’s representation that its corporate clients

enjoy such granular level of control. Pl. Resp. 7 (emphasis in

original).

Second, plaintiff notes that, though the “[d]ual

safety trigger design” was the only identified feature, she has

not alleged that it “is the only aspect of the hedge trimmer

manufacture and design that proximately caused her injuries.”

Id. at 8. Rather, plaintiff contends that “at this early stage

in the litigation . . . [p]laintiff is not in a position to know

of all the ways in which” the hedge trimmer “fell short of

minimum standards” in a manner that proximately caused her

injuries. Id. at 8-9. The court notes that plaintiff mentioned

the dual safety design to demonstrate that defendants advertise

the hedge trimmer as safe for home use, not to plead that the

dual safety design (or manufacture thereof) proximately caused

plaintiff’s injury. See Am. Compl. ¶ 27. Indeed, the complaint

alleges that the proximate causes of plaintiff’s injury include

defendants’ actions that caused the hedge trimmer to be

“defective and unreasonably dangerous,” defendants’ negligence,

defendants’ failure to warn or properly instruct, and

defendants’ breach of warranties. Am. Compl. 42-45 (defective

condition of hedge trimmer was proximate cause of injury); see

id. ¶ 54 (failure to warn and properly instruct was proximate

cause), ¶ 65 (defendant’s negligence was proximate cause), ¶ 73

(breaches of warranties was proximate cause).

Third, plaintiff argues that Walmart “entirely

ignore[d]” allegations that Walmart’s failure to “provide

adequate warnings and instructions” was a proximate cause of her

injuries, and that § 55-7-31(b) specifically provides that

substantial control over “labeling, warnings or instructions”

can provide a basis for seller liability. Id. at 9 (quoting §

55-7-31(b)(2)).

Walmart’s reply essentially restates the arguments

stated in its motion. See generally Walmart Reply. In doing

so, Walmart, without citing to authority, seeks to impress upon

the court that establishing substantial control is a “heavy

requirement” that requires more than “[l]imited control,” though

Walmart does not cite to any authority articulating the meaning

of substantial control in this context. Id. at 3.

Neither party has identified West Virginia law or

precedent defining “substantial control” as used in the Innocent

Seller Statute. Because the court is sitting in diversity, its

“role is to apply the governing state law, or, if necessary,

predict how the state’s highest court would rule on an unsettled

issue.” Horace Mann Ins. Co. v. Gen. Star Nat. Ins. Co., 514

F.3d 327, 329 (4th Cir. 2008). Given the recency of West

Virginia’s Innocent Seller Statute, it appears that its courts

have not had occasion to pass upon the meaning of “substantial

control” in this statute. Nonetheless, other states have had

Innocent Seller statutes with the same language on the books for

a longer period of time, and the interpretation of such laws is

guiding here. See State v. Hulbert, 544 S.E.2d 919, 930 (W. Va.

2001) (relying upon other state courts’ interpretation of

identical statutory language with respect to analyzing the

necessary elements to prove wanton endangerment involving a

firearm, W. Va. Code § 61-7-12).

In Scruggs v. Walmart Inc., No. 1:21-CV-145, 2023 WL

4777907 (E.D. Tenn. July 26, 2023), at the summary judgment

stage, the court found that Walmart had exercised “substantial

control” over a product produced by another company under

Tennessee’s Innocent Seller Statute, Tenn. Code Ann. § 29-28-

106(1), where Walmart’s attorneys reviewed product labels,

Walmart engaged in quality assurance testing of the products,

and Walmart imposed certain performance standards. 2023 WL, at

*2-3. Interpreting the Mississippi Innocent Seller Statute,

which has an express purpose of “immuniz[ing] sellers who are

not actively negligent, but are instead mere conduits of a

product,” Miss. Code Ann. § 11-1-63(h) (Supp. 2008), a federal

court found that a seller did not exercise “substantial control”

over the manufacture of a product where it “requested that the

manufacturer put its stock number on the package,” requested

that the manufacturer “paint the [products] red,” asked the

manufacturer to adhere to federal standards, and accepted

certificates indicating the manufacturer ran certain tests.

Cockrell v. Peerless Chain Co., No. CIV.A.3:06CV521DPJJC, 2009

WL 2176899, at *2 (S.D. Miss. July 21, 2009).

Here, plaintiff has pled facts that give rise to a

reasonable inference that Walmart exercises control over the

Hyper Tough hedge trimmer more like the seller in Scruggs than

that in Cockrell. Plaintiff has alleged more than that Walmart

merely directed the color of the hedge trimmer or ask for it to

satisfy regulatory minimums. Plaintiff has specifically pled

that Walmart ensures that the Hyper Tough tools – which Walmart

allegedly specifically and exclusively commissions, Am. Compl. ¶

18 – adhere to “certain cost, functionality, and quality

standards that Wal-Mart deems to be attractive to its customers,

profitable for Wal-Mart, and suitable to represent Wal-Mart’s

exclusive Hyper Tough brand name in the marketplace.” Am.

Compl. 15. Further, the complaint alleges that Walmart controls

the labelling and advertising of this product. Id. ¶ 27. And

plaintiff has pled that Walmart “failed to provide adequate

warnings” – either “on the hedge trimmer itself” or otherwise –

of the substantial danger created by the hedge trimmer” when

users “attempt[] to manually dislodge obstructions.” Id. ¶¶

31-32.

Plaintiff has further alleged that each of the above

Walmart-controlled aspects of the manufacture or design of the

hedge trimmer was among the proximate causes of her injury. See

id. ¶ 42-45 (defective condition of hedge trimmer was proximate

cause of injury); ¶ 54 (failure to warn and properly instruct

was proximate cause); ¶ 59, 65 (defendant’s negligence was

proximate cause); ¶ 73 (breaches of warranties were proximate

cause). Plaintiff has thus pled facts that give rise to a

reasonable inference that defendant had “substantial control”

over the aspects of the hedge trimmer that she alleges

proximately caused her injury. Accordingly, the court finds

that plaintiff has adequately pled the Innocent Seller Statute

exception in § 55-7-31(b)(2).

c. Repackages the Product - § 55-7-31(b)(9)

To plead that the exception established by § 55-7-

31(b)(9) applies, plaintiff must allege that defendant not only

meets the § 55-7-731(b)(2) definition of “substantial control,”

but also that defendant “repackages the product or has placed

[its] own brand name or label on the product” and does not

“[d]isclose[] the identity of the actual manufacturer of the

product.” § 55-7-31(b)(9).

Defendant does not contend that plaintiff has failed

to adequately plead that it “repackages” the hedge trimmer or

“places [its] own brand name or label on the product.” See

Renewed Mot. 4 (impliedly admitting that it is a seller who

“repackages or place[s] [its] own brand on the” hedge trimmer);

Walmart Reply 3 (admitting plaintiff alleged Walmart

“repackage[ed] and retail[ed]” the hedge trimmer under its

“Hyper Tough” trademark). Accordingly, for purposes of this

motion to dismiss, the court considers this aspect of the

exception satisfied.

d. Disclosure of Identity of Manufacturer - § 55-7-31(b)(9)

Defendant contends that plaintiff failed to

sufficiently plead that it did not disclose the identity of the

actual manufacturer of the product. Renewed Mot. 7-8. Though

defendant acknowledges that plaintiff has pled that defendant

“d[id] not clearly disclose” the manufacturer of the hedge

trimmer, defendant argues that the statute nonetheless protects

a seller who “[d]iscloses” the identity of the manufacturer at

all, seemingly arguing that the disclosure can be as

inconspicuous as possible and remain sufficient to protect a

seller under the Innocent Seller Statute. Id. at 8.

Alternatively, defendant argues that plaintiff “did not and

cannot” assert that defendant did not disclose the identity of

the manufacturer “because Walmart did disclose the identity of

the manufacturer of the [h]edge [t]rimmer when the Plaintiff

contacted Walmart after the subject incident.” Id.

First, plaintiff not only pled that the Hyper Tough

tools “do not clearly disclose” that they are manufactured by

Positec, but she also pled that the hedge trimmer was “branded

and labeled as a Hyper Tough product, with no apparent

disclosure to Ms. Boggess or other consumers that Positec

participated in the manufacture of the hedge trimmer.” Am.

Compl. ¶16, 18. The court finds that this is sufficient to

state a claim that defendant Walmart did not “[d]isclose[] the

identity of the actual manufacturer of the” hedge trimmer.

§ 55-7-31(b)(9)(B).

Second, Walmart’s argument that it disclosed that

Positec manufactured the hedge trimmer after plaintiff’s injury

is similarly unavailing. As an initial matter, Walmart’s claim

that it did so is not stated or referred to in the Amended

Complaint, so the court cannot consider it at this stage. See

Harrell v. Freedom Mortg. Corp., 976 F.3d 434, 439 n.5 (4th Cir.

2020) (holding a court cannot consider extrinsic evidence at the

motion to dismiss stage unless the complaint references such

evidence). The court is also doubtful that such after-the-fact

disclosure would shield defendant Walmart under the statute:

§ 55-7-31(b)(9) clearly contemplates actions by the seller prior

to or at the time of sale. The statute protects sellers who act

as mere conduits, not sellers who, as plaintiff has alleged of

Walmart with respect to the hedge trimmer, place their own brand

name on a product, exercise specified “substantial control” over

it, and only after injury disclose the actual manufacturer. See

McNair v. Johnson & Johnson, 818 S.E.2d 852, 866 (W. Va. 2018).

The Innocent Seller Statute does not protect those who, as

plaintiff has alleged of Walmart with respect to the hedge

trimmer, exercise specified “substantial control” over a

product.

Accordingly, because plaintiff has adequately pled

that defendant Walmart exercised “substantial control” over the

hedge trimmer under § 55-7-31(b)(2), and that Walmart repackaged

or placed its own branding upon the hedge trimmer and did not

disclose the identity of the manufacturer under § 55-7-31(b)(9),

she has stated a claim that Walmart is not entitled to immunity

under the Innocent Seller Statute inasmuch as she has adequately

alleged that the exceptions found in § 55-7-31(b)(2) and (b)(9)

apply.

IV. Walmart’s Request to Limit Discovery

At the end of the Renewed Motion, Walmart “requests”

that if the court denies its Renewed Motion, the court limit

discovery to the questions of “whether Walmart exercised

substantial control over the manufacture, construction, design,

etc. of” the hedge trimmer or whether “Walmart disclosed the

identity of the manufacturer of the” hedge trimmer. Renewed

Mot. 10. Plaintiff did not respond to this request, which

Walmart reiterated in its reply. See Pl. Resp., Walmart Reply.

Inasmuch as this request is tantamount to a request to

bifurcate this matter into one phase to determine whether the

Innocent Seller Statute exceptions apply to Walmart and a later

phase to determine all other issues, the court declines to grant

it.

IV. Conclusion

For the foregoing reasons, Walmart’s Renewed Motion to

Dismiss Plaintiff’s Amended Complaint is DENIED, and Walmart’s

initial Motion to Dismiss Plaintiff’s Complaint is DENIED AS

MOOT.

Because the court stayed discovery in this matter

until the resolution of the Renewed Motion, the court will enter

a new scheduling order to govern the rest of this case.

The Clerk is directed to transmit copies of this order

to all counsel of record and to any unrepresented parties.

ENTER: May 23, 2024

sine pe

Jo . Copenhaver, Jr.

Senior United States District Judge

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