United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING DEFENDANT HARBOR FREIGHT'S AMENDED
MOTION TO DISMISS, DENYING HARBOR FREIGHT'S ORIGINAL
MOTION TO DISMISS AS MOOT, GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION TO AMEND, AND DIRECTING PLAINTIFF
TO FILE AMENDED COMPLAINT
HONORABLE THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.
19, 2016 Plaintiff Robert Salazar initiated the
above-captioned diversity action by filing his complaint
against Defendants Harbor Freight Tools USA, Inc., and
Defendant Bada Mechanical. See Compl. ECF No. 2.
Plaintiff alleges that he was injured by a malfunctioning
electrical hoist that he purchased from Defendant Harbor
Freight, which was manufactured by Defendant Bada. Compl.
¶ 6-17. He therefore asserts one count of negligent
manufacturing and design against Defendant Bada and one count
of negligent sale and distribution against Defendant Harbor
Freight. Compl. ¶¶ 18-25.
August 29, 2016 Defendant Harbor Freight filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
See ECF No. 7. Harbor Freight then filed an amended
motion to dismiss on August 31, 2016. In both motions, Harbor
Freight contends that Plaintiff has not satisfied the
requirements for asserting a products liability action
against a non-manufacturing seller as set forth in Michigan
Compiled Law 600.2947. See Def's Amend. Mot.
Dismiss, ECF No 9. In response Plaintiff Salazar has moved to
amend his complaint. See PL's Mot Amend, ECF No.
13. For the reasons stated below, Defendant Harbor
Freight's motion to dismiss will be granted and
Plaintiffs motion to amend will be granted in part and denied
Robert Salazar is a resident of the City of Alger, located
within Alger County, Michigan. See Compl. ¶ 1.
Defendant Harbor Freight is a foreign corporation that does
business in several counties in the state of Michigan.
Id. at ¶ 2. Defendant Bada is a foreign
corporation operating out of mainland China that manufactures
certain parts and equipment for Harbor Freight's
HaulMaster line of products. Id. at ¶ 3.
6, 2014 Plaintiff Salazar purchased an electrical hoist from
Defendant Harbor Freight's HaulMaster line, designated as
Item 60344-47. Id. at ¶ 6. The hoist was
allegedly manufactured by Defendant Bada and sold and
distributed by Defendant Harbour Freight. Id. at
¶ 10. It was represented that the hoist had the capacity
to lift up to 1, 300 pounds. Id. at ¶ 13.
Plaintiff purchased the hoist from a Harbor Fright store
located in Saginaw, Michigan, for a purchase price of
$120.00. Id. at ¶¶ 6-7. He intended to use
the hoist for a vertical valet, or "dumb waiter, "
and so used the device one or two times without incident.
Id. at ¶¶ 8-9.
events giving rise to this lawsuit occurred on June 7, 2014.
Id. at ¶ 4. On that date, Plaintiff loaded an
air compressor and a number of chairs on the dumb waiter,
together weighing approximately 250 pounds, and activated the
Hoist. Id. at 11-12. When the dumb waiter reached
the top of the hoist the cable broke, causing the waiter to
fall and strike Plaintiff Salazar despite his efforts to
avoid the falling waiter. Id. at ¶ 14. As a
result Plaintiff sustained serious injuries, including a left
distal tibia fracture that required surgery. Id. at
initiated suit against Defendants on July 19, 2016. In his
complaint, Plaintiff alleges that the accident was caused by
a manufacturing defect in the hoist cable. Specifically,
the free end section of the cable adjacent to the ferrule
swaying the free end of the cable to the work section of the
cable is kinked. Furthermore the working section of the cable
under the ferrule was cut. The kink and cut sections of the
cable allowed and caused the break and the free fall of the
vertical dumb waiter on June 7, 2014.
Id. at ¶ 17. Count one of Plaintiff s complaint
asserts negligent design and manufacturing by Defendant Bada.
Id. at ¶¶ 18-22. Count two of Plaintiff s
complaint asserts negligent sale and distribution by
Defendant Harbor Freight. Id. at ¶¶ 23-25.
Harbor Freight was served on August 8, 2016. See ECF
No. 6. On September 22, 2016 Plaintiff filed a motion to
extend the time to serve the complaint on Defendant Bada
pursuant to the Hague Convention outline regarding service on
Chinese companies. See ECF No. 11. Plaintiffs
request was granted. See ECF No. 14. As of this date
service has not been executed on Defendant Bada.
Plaintiff Salazar's proposed amendment is somewhat
dependent upon his existing claims, Defendant Harbor
Freight's motion to dismiss will be addressed first. A
pleading fails to state a claim under Rule 12(b)(6) if it
does not contain allegations that support recovery under any
recognizable legal theory. Ashcroft v. Iqbal, 556
U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion,
the Court construes the pleading in the non-movant's
favor and accepts the allegations of facts therein as true.
See Lambert, 517 F.3d at 439. The pleader need not
have provided "detailed factual allegations" to
survive dismissal, but the "obligation to provide the
'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). In essence, the pleading "must contain
sufficient factual matter, accepted as true, to state a claim