Rose

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MICKEY ROSE, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-589-SLP

)

HAIER US APPLIANCE SOLUTIONS, )

INC., a/k/a and/or d/b/a GE )

APPLIANCES, a foreign corporation, and )

HOME DEPOT U.S.A., INC., a foreign )

corporation, )

)

Defendants. )

O R D E R

Before the Court is Defendant Home Depot U.S.A., Inc.’s (“Home Depot’s”) Partial

Motion to Dismiss Plaintiff’s Amended Complaint [Doc. No. 26]. Home Depot seeks

dismissal of Plaintiff Mickey Rose’s (“Plaintiff’s”) negligence and product liability claims

raised against the entity. Plaintiff filed a Response [Doc. No. 33], and Home Depot has

replied [Doc. No. 34]. For the reasons that follow, Home Depot’s Motion is GRANTED

in part and DENIED in part.

I. Background1

This negligence and product liability action arises out of an alleged failure of a

freezer handle of a refrigerator manufactured by Defendant Haier US Appliance Solutions,

Inc. (“GE Appliances”) and sold by Defendant Home Depot. See Am. Compl. [Doc. No.

1 The Court accepts all well pleaded factual allegations in the Complaint as true and views them

in the light most favorable to Plaintiff as the nonmoving party. See Farmer v. Kansas State

Univ., 918 F.3d 1094, 1102 (10th Cir. 2019).

23] ¶¶ 7, 11. Plaintiff alleges on November 6, 2020, he purchased a General Electric

refrigerator unit (the “Refrigerator”) from Defendant Home Depot, which was installed by

an employee(s)/agent(s) of Defendant Home Depot in Plaintiff’s home on November 12,

2020. Id. ¶¶ 7-8. On December 11, 2021, the handle to the freezer drawer of the

Refrigerator became detached when Plaintiff attempted to open the drawer, causing him to

fall. Id. ¶ 11. Plaintiff suffered bodily injuries as a result of the fall. Id. ¶ 12. Plaintiff now

brings claims against GE Appliances and Home Depot for negligence, product liability,

and breach of express and/or implied warranty of merchantability.

II. Standard of Review

To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A facially plausible complaint contains “factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556 U.S. at

678). While the complaint need not contain “detailed factual allegations,” it must include

“more than labels and conclusions” or a “formulaic recitation of the elements of a cause of

action” to avoid dismissal. Twombly, 550 U.S. at 555. The Court views the allegations in

the light most favorable to the non-moving party and draws all reasonable inferences in the

non-moving party’s favor. See, e.g., Brown v. City of Tulsa, 124 F.4th 1251, 1263 (10th

Cir. 2025).

III. Discussion

A. Negligence Claim

Plaintiff first asserts a negligence cause of action against Home Depot. [Doc. No.

23] at 2-5. “Under Oklahoma law, all negligence claims require proof of a duty, a breach

of that duty, and causation.” Recker v. C.R. Bard, Inc., 491 F. Supp. 3d 1029, 1032-33

(W.D. Okla. 2020) (quoting Martinez v. Angel Expl., LLC, 798 F.3d 968, 974 (10th Cir.

2015)). Home Depot asserts in its Motion that Plaintiff’s allegations are conclusory and

thus are not sufficient as a matter of law.

Plaintiff’s Amended Complaint alleges that Home Depot “owed a duty to Plaintiff

to use reasonable care in the delivery and installation of refrigerator units . . . .” [Doc. No.

23] at ¶ 15. Plaintiff then alleges Home Depot, by and through its agent(s)/employee(s),

breached this duty during the delivery and installation process. Id. ¶ 16. Plaintiff contends

that he used the Refrigerator in a “reasonable and foreseeable manner” without issue until

December 11, 2021. Id. ¶ 10. Plaintiff alleges under one theory of liability2 that the cause

of the detachment of the handle of the Refrigerator and the resulting injuries to Plaintiff

was due to the alleged failure of agent(s)/employee(s) of Home Depot to properly install

the Refrigerator.

Plaintiff has alleged facts that are minimally sufficient for his general negligence

claim against Home Depot to survive.

2 It is permissible under the Federal Rules of Civil Procedure for Plaintiff to plead alternative

theories of liability. See Fed. R. Civ. P. 8(d).

B. Product Liability Claim

Home Depot also moves for dismissal of Plaintiff’s strict product liability claim.

Oklahoma law provides:

No product liability action may be asserted against a product seller other than

the manufacturer unless:

1. The product seller exercised substantial control over the aspect of the

design, testing, manufacture, packaging, or labeling of the product that

caused the alleged harm for which recovery of damages is sought; or

2. The product seller altered or modified the product, and the alteration or

modification was a substantial factor in causing the harm for which

recovery of damages is sought; or

3. The product seller made an express warranty as to such product

independent of any express warranty made by a manufacturer as to such

product, such product failed to conform to the product seller's warranty,

and the failure of such product to conform to the warranty caused the

harm complained of by the claimant; or

4. The claimant is unable, despite a good-faith exercise of due diligence, to

identify the manufacturer of the product; or

5. The manufacturer is not subject to service of process under the laws of

the state; or

6. The court determines that the claimant would be unable to enforce a

judgment against the manufacturer.

Okla. Stat. tit. 76 § 57.2(E). Home Depot contends that Plaintiff alleged no facts that would

place Home Depot in any of the enumerated § 57.2(E) exceptions. In his Response,

Plaintiff requests that further discovery is needed to determine if Home Depot meets any

of the enumerated exceptions.

Another court in this District addressed the same issue of whether a Plaintiff is

entitled to jurisdictional discovery regarding the § 57.2(E) exceptions before a motion to

dismiss may be granted. See Shelton v. Sha Ent., LLC, No. CIV-20-644-D, 2020 WL

6389858, at *2 (W.D. Okla. Oct. 30, 2020). The Shelton court rejected the need for

discovery regarding this issue, noting “[d]iscovery is authorized solely for parties to

develop the facts in a lawsuit in which a plaintiff has stated a legally cognizable claim, not

in order to permit a plaintiff to find out whether he has such a claim.” Id. (internal

quotations and citations omitted). Furthermore, the request for discovery as to the

enumerated exceptions under § 57.2(E) was treated as a failure to allege facts sufficient

under a Twombly motion to dismiss standard. Id.

This Court finds the Shelton decision persuasive. The Amended Complaint contains

no allegations that would place Defendant Home Depot within one of the enumerated

exceptions listed in Okla. Stat. tit. 76 § 57.2(E). In his Response, Plaintiff asserts that an

unnamed Chinese corporation was involved in a phase of the design and/or manufacturing

of the Refrigerator. [Doc. No. 33] at 5. Plaintiff’s proposition that the potential presence

of a Chinese corporation that may not be “subject to service of process under the laws of

[Oklahoma]” entitles him to discovery does not convince the Court. Okla. Stat. tit. 76 §

57.2(E)(5). Plaintiff named the manufacturer of the Refrigerator, Defendant GE

Appliances, in his Amended Complaint. Plaintiff’s Amended Complaint contains no

allegations relating to additional manufacturers or the unnamed Chinese corporation

referenced in his Response brief. Furthermore, Plaintiff failed to allege any facts that would

place Home Depot under any of the other exceptions under § 57.2(E).3 As such, Plaintiff

3 Plaintiff has brought claims of breach of express and/or implied warranty of merchantability

against Home Depot. [Doc. No. 23] at *7-9. However, Plaintiff has failed to allege that Home

has failed to allege a viable strict product liability claim against Home Depot in his

Amended Complaint.

Additionally, Plaintiff failed to allege a product liability claim under a negligence

theory against Home Depot. Under Oklahoma law, a product seller may only be liable

under a negligence theory if:

1. The product seller sold the product involved in such action;

2. The product seller did not exercise reasonable care:

a. in assembling, inspecting, or maintaining such product, or

b. in passing on warnings or instructions from such product's

manufacturer about the dangers and proper use of such product; and

3. Such failure to exercise reasonable care was a proximate cause of the

harm complained of by the claimant.

Okla. Stat. tit. 76 § 57.2(G). The second requirement of § 57.2(G) is what proves fatal to

Plaintiff’s negligence-based product liability claim. While Plaintiff alleges that Home

Depot delivered and installed the Refrigerator, Plaintiff failed to allege that Home Depot,

the “product seller,” negligently “assembled, inspected, or maintained” the Refrigerator.

To the extent that Plaintiff is asserting a product liability claim under a negligence theory

against Home Depot under Okla. Stat. tit. 76 § 57.2(G), Plaintiff’s claim is dismissed

without prejudice.

Depot “made an express warranty as to such product independent of any express warranty made

by” GE Appliances. Okla. Stat. tit. 76 § 57.2(E)(3).

IV. Conclusion

For the reasons set forth, Home Depot’s Partial Motion to Dismiss Plaintiff's

Amended Complaint [Doc. No. 26] is GRANTED in part and DENIED in part. Home

Depot’s Motion is DENIED as to Plaintiff's general negligence claim. Plaintiff's strict

products liability claim and products liability claim under a negligence liability theory as

to Home Depot are dismissed without prejudice.

IT IS SO ORDERED this 20" day of October, 2025.

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE