Opinion
No. 03-4192-SAC
March 16, 2004
MEMORANDUM AND ORDER
The case comes before the court following the expiration of time for the plaintiff to respond to the court's show cause order of February 19, 2004. (Dk. 17). In that order, the court summarized that the plaintiff had not filed any response to the defendant's pending motion to dismiss (Dk. 13) and directed the plaintiff to show good cause in writing by March 4, 2004, why the defendant's motion should not be granted as an uncontested motion pursuant to D. Kan. Rule 7.4. The time for responding to this order has passed without any filing from the plaintiff. Thus, the court shall treat the defendant's motion to dismiss as uncontested.
"If a respondent fails to file a response within the time required by Rule 6.1(e), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D.Kan. Rule 7.4.
STANDARDS GOVERNING MOTION TO DISMISS
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted).
A court judges the sufficiency of the complaint accepting as true all well-pleaded facts, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998); see Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1262 (10th Cir. 1998) (court "need not accept . . . conclusory allegations as true."). It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted). Nonetheless, dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989).
COMPLAINT
This action was filed in Shawnee County District Court and removed to federal court on the basis of diversity jurisdiction. The complaint details that the plaintiffs, Glenn and Barbara Smith, owned a motor home manufactured by the defendant, Ford Motor Company, and insured by the plaintiff, State Farm Mutual Insurance Company. The complaint alleges that on or about October 28, 2001, a defect in the motor home's fuel injection system caused it catch on fire destroying the motor home, a car attached by a tow hitch, and personal property stored in the motor home and the car. The plaintiffs seek to recover for the loss of this property on claims of negligence, strict product liability, breach of implied warranty, and res ipsa loquitur.
ECONOMIC LOSS DOCTRINE
Citing several Kansas appellate court decisions, the defendant contends the economic loss doctrine precludes the plaintiffs from recovering the damage done to the motor home on their claims of strict liability and negligence/res ipsa loquitur. The law seems quite settled on this issue:
In Koss [Construction v. Catepillar, Inc., 25 Kan. App. 2d 200, 960 P.2d 255, rev. denied, 265 Kan. 885 (1998)], the court adopted the economic loss doctrine set forth in East River [Steamship Corp. v. Transamerica Delavel, Inc., 476 U.S. 858 (1986)] and held a commercial buyer of defective goods could not sue in negligence or strict liability when the only injury consisted of damage to the goods themselves. 25 Kan. App. 2d at 207. On the other hand, recovery for physical damage a product caused to "other property" is not precluded by the economic loss doctrine. Saratoga Fishing Co. v. J.M. Martinac Co., 520 U.S. 875, 879, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997). The economic loss doctrine applies to both consumer and commercial buyers of defective products. See Jordan v. Case Corp., 26 Kan. App. 2d 742, 744, 993 P.2d 650 (1999), rev. denied 269 Kan. 933 (2000) (expanding the economic loss doctrine to both consumer and commercial purchasers of defective products and holding that a defective engine was a component part of a combine and, thus, plaintiff was seeking unrecoverable damages for harm caused by damages to the product itself).
Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 29 Kan. App. 2d 735, 741-42, 31 P.3d 982 (2001). Thus, the plaintiff's strict liability and negligence claims for damage done to their motor home are barred by the economic loss doctrine. This doctrine, however, does not appear to preclude, nor does the defendant argue that it should preclude, the plaintiffs from recovering damages for the loss of the vehicle in tow and the personal items stored in the motor home and vehicle.
IMPLIED WARRANTY-CONTRACTUAL PRIVITY
As argued by the defendant, Kansas law is equally clear on the plaintiff's inability to recover economic loss on an implied warranty claim from the remote manufacturer:
Kansas law is clear: the "implied warranties of fitness and merchantability are not extended to a remote seller or manufacturer of an allegedly defective product, which is not inherently dangerous, for only economic loss suffered by a buyer who is not in contractual privity with the remote seller or manufacturer." Professional Lens Plan, Inc. v. Polaris Leasing Corp., 234 Kan. 742, 755, 675 P.2d 887 (1984).
Limestone Farms, Inc. v. Deere Company, 29 Kan. App. 2d 609, 614, 29 P.3d 457 (2001). The plaintiffs do not allege that the defendant is anything other than the remote manufacturer of the motor home and do not allege that the motor home is an inherently dangerous product. Thus, the plaintiffs are plainly unable to assert an implied warranty claim in order to recover the economic loss to their motor home.
IMPLIED WARRANTY-STATUTE OF LIMITATIONS
The defendant also demonstrates that the plaintiffs failed to file this claim within four years of its accrual. Absent any argument or allegations from the plaintiffs, the court is also persuaded by the defendant's contention that this claim is barred by the applicable statute of limitations.
IT IS THEREFORE ORDERED that the defendant's motion to dismiss (Dk. 13) is granted as uncontested.