              Case: 18-14823   Date Filed: 05/16/2019   Page: 1 of 8


                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-14823
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 1:18-cv-00540-TWT




IRVIN R. LOVE, JR.,

                                                        Plaintiff - Appellant,

     versus


WEECOO (TM),
PANDA TOWN,
SHENZHEN FEST TECHNOLOGY CO., LTD.,
SHENZHEN MATRIX BATTERY CO., LTD.,
SHENZHEN RICHEST ENERGY CO., LTD., et al.,

                                                        Defendants,


AMAZON.COM, INC.,

                                                        Defendant - Appellee.
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                             ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                    (May 16, 2019)



Before MARTIN, NEWSOM, and EDMONDSON, Circuit Judges.


PER CURIAM:


      In this diversity action, Plaintiff Irvin Love, Jr. appeals the district court’s

dismissal -- for failure to state a claim -- of Plaintiff’s state law tort claims against

Defendant Amazon.com, Inc. (“Amazon”). Reversible error has been shown; we

reverse, vacate the judgment, and remand for further proceedings.

      On 22 November 2015, Plaintiff purchased a hoverboard through Amazon’s

website (“Hoverboard”). The Hoverboard was manufactured in China and was

powered by a lithium-ion battery. The Hoverboard’s packaging contained no

warnings about potential fire risks. Nor did Amazon warn Plaintiff about potential

fire risks associated with the Hoverboard. On 5 February 2016, the Hoverboard

started a fire at Plaintiff’s home. As a result of the fire, Plaintiff’s home was

destroyed; and Plaintiff sustained severe injuries.


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      Plaintiff filed this civil suit against several defendants involved in the

manufacture, importation, advertisement, and sale of the Hoverboard. Pertinent to

this appeal, Plaintiff alleged against Amazon claims under Georgia law for

negligence, negligent failure-to-warn, and for punitive damages. Briefly stated,

Plaintiff alleged that Amazon was negligent for continuing to advertise and to sell

Chinese-manufactured hoverboards -- despite knowing that the boards were likely

to cause fires -- and was negligent for failing to warn Plaintiff of the known safety

risks associated with the Hoverboard.

      The district court granted Amazon’s Fed. R. Civ. P. 12(b)(6) motion to

dismiss for failure to state a claim. The district court determined that Plaintiff’s

claims for negligence and for failure-to-warn were subject to dismissal because

Plaintiff had failed to allege enough facts to show that Amazon had actual or

constructive knowledge that the Hoverboard was dangerous at the time of sale.

The district court also dismissed Plaintiff’s claim for punitive damages, concluding

that the claim was derivative of Plaintiff’s underlying tort claims and that Plaintiff

failed to allege facts sufficient to support such an award. Upon Plaintiff’s motion,



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the district court certified the interlocutory order and entered final judgment

dismissing Amazon as a defendant.1 This appeal followed.

         “We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim, accepting the complaint’s allegations as true

and construing them in the light most favorable to the plaintiff.” Chaparro v.

Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012).

         Rule 8 requires that a complaint include “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To

survive a motion to dismiss, 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) (quotations omitted).

         “A claim has facial plausibility when the plaintiff pleads factual content that

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

misconduct alleged.” Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)

(the plausibility standard “calls for enough fact to raise a reasonable expectation

that discovery will reveal evidence” of the defendant’s liability). This standard “is

not akin to a probability requirement,” but it demands “more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678


1
    Plaintiff’s civil action continued against the remaining named defendants.
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(quotations omitted). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. “Determining

whether a complaint states a plausible claim for relief [is] . . . a context-specific

task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 679.

      As noted by the district court, whether Amazon knew or should have known

that the Hoverboard was dangerous at the time of sale is an element essential to

Plaintiff’s claims for negligence and for negligent failure-to-warn. Under Georgia

law, negligence is defined as engaging in conduct that is “unreasonable in light of

the recognizable risk of harm.” Youngblood v. All Am. Quality Foods, Inc., 792

S.E.2d 417, 421 (Ga. Ct. App. 2016). A seller of a product may be liable under a

negligent failure-to-warn theory “if, at the time of the sale, it had actual or

constructive knowledge that its product created a danger for the consumer.”

Bishop v. Farhat, 489 S.E.2d 323, 328 (Ga. Ct. App. 1997) (quotations omitted);

Gutierrez v. Hilti, Inc., 824 S.E.2d 391, *7 (Ga. Ct. App. 2019) (“the seller of

potentially dangerous goods has a duty to warn the purchaser of that danger at the

time of sale and delivery”). A “seller is required to warn if he has knowledge, or

by the application of reasonable, developed human skill and foresight should have




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knowledge of the danger.” Bishop, 489 S.E.2d at 328 (quotations and alteration

omitted).

       Accepting Plaintiff’s factual allegations as true and construing them in

Plaintiff’s favor, Plaintiff alleged enough facts from which one may infer

reasonably that Amazon had at least constructive knowledge of the potential risk of

fire associated with the Hoverboard. The complaint contains more than just “bare

assertions” that Amazon “knew or should have known” about the risk of fire;

Plaintiff provided additional “factual content” to support that allegation. See Iqbal,

556 U.S. at 678, 681. Plaintiff alleged that several fires had been caused by

“lithium-ion battery powered hoverboards manufactured in China,” including by

the same model as Plaintiff’s Hoverboard. More important, Plaintiff alleged that

when Amazon sold the Hoverboard to Plaintiff, Amazon had already been sent

written notification of four specific fires that had been caused by hoverboards sold

by Amazon. 2 Plaintiff also alleged that thousands of hoverboards had been seized

by United States custom authorities based on concerns about the hoverboards’

“potentially explosive lithium batteries.”




2
  Plaintiff also identified five written notifications dated after Plaintiff’s Hoverboard purchase on
22 November 2015. Under Georgia law, a seller has no duty to warn of dangers discovered post-
sale. See DeLoach v. Rovema Corp., 527 S.E.2d 882, 883 (Ga. Ct. App. 2000).
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      Amazon contends that Plaintiff provided too little detail about the written

notifications to Amazon to satisfy the pleading minimum. Under the

circumstances of this case, we disagree. Given Plaintiff’s allegations of a defect

common to all Chinese-manufactured hoverboards containing lithium-ion batteries,

we cannot say that Plaintiff’s allegations about the four pre-sale written

notifications (although the allegations are silent about the models of hoverboards

involved in the fires) are insufficient -- as a matter of law -- to establish Amazon’s

actual or constructive knowledge. For instance, in Bishop, the Georgia appellate

court noted that a seller’s constructive knowledge might be inferred from evidence

that the seller knew about complained-of defects in a competitor’s product. See

489 S.E.2d at 328-39 (concluding that a seller of latex gloves was unentitled to

summary judgment on a negligent failure-to-warn claim based on evidence that the

seller had received complaints about other brands of latex gloves and based on

medical literature documenting the dangers of latex allergies).

      We also reject for now Amazon’s assertion that the dates of the alleged

written notifications to Amazon were too close in time to Plaintiff’s purchase of

the Hoverboard to trigger Amazon’s duty to warn. The time-insufficiency of the

written notifications is not so obvious that it can be decided on this motion to

dismiss.

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      At this stage of the proceedings, we conclude that Plaintiff has alleged

enough facts to state plausibly that Amazon had actual or constructive knowledge

that the Hoverboard posed a risk of fire at the time of Plaintiff’s purchase.

Accordingly, we vacate the district court’s order dismissing Plaintiff’s claims

against Amazon, reverse the district court’s grant of Amazon’s motion to dismiss,

and remand for further proceedings. We make no determination about the ultimate

merit of Plaintiff’s claims against Amazon or whether Amazon before trial may be

entitled to judgment on a fuller record.

      REVERSED, VACATED, AND REMANDED.




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