[00:00:02] Speaker 03:
Good morning.

[00:00:03] Speaker 03:
My name is Margaret Johnson and I'm privileged to represent the appellant in this case.

[00:00:08] Speaker 03:
We're here to ask the court to reverse the trial courts, the district courts order

[00:00:14] Speaker 03:
granting the plaintiff's, excuse me, the defendant's motion to dismiss, the 12b6 motion to dismiss, and to vacate the judgment that followed.

[00:00:25] Speaker 03:
What we have here is a situation where, again, on a 12b6 motion, the facts have to be, the facts pled have to be accepted as true, and great liberality is given when reviewing the complaint.

[00:00:41] Speaker 03:
Here we have a situation where the

[00:00:44] Speaker 03:
plaintiff has alleged that Top Shelf manufactured a product called Growers Choice.

[00:00:50] Speaker 03:
It's a 1,000 watt product.

[00:00:53] Speaker 03:
It's a commercial lighting system designed for the greenhouse and indoor gardening industry.

[00:01:02] Speaker 03:
They advertise it as a safe, environmentally friendly, and efficient lighting system with the latest technology.

[00:01:10] Speaker 03:
Based upon this, my client purchased the entire system for its Spokane facility in 2009, installed it, used it, all in accordance with the instructions.

[00:01:24] Speaker 00:
And then things blew up, but we're really not here to find out about the failure of the product as much as the

[00:01:32] Speaker 00:
extent of the pleadings, right?

[00:01:35] Speaker 00:
Exactly.

[00:01:35] Speaker 00:
So I want to ask you first about your claim under the WPLA, common law and negligence.

[00:01:43] Speaker 00:
Isn't that preempted by the WPLA straight up?

[00:01:50] Speaker 03:
We contend that if it's preempted, then that is just a matter of duplicate pleadings.

[00:01:57] Speaker 00:
OK.

[00:01:58] Speaker 00:
So there is one where the district court don't make a mistake, correct?

[00:02:04] Speaker 03:
We would submit that that could be one point that we would concede.

[00:02:10] Speaker 03:
However, there are many other claims here.

[00:02:13] Speaker 03:
We have counts too.

[00:02:14] Speaker 00:
No, I understand there's a lot of other claims.

[00:02:16] Speaker 00:
And on those other claims, what concerns me is that they're pretty conclusory and repetitive.

[00:02:24] Speaker 00:
And you were given already

[00:02:27] Speaker 00:
one opportunity to amend, which of course was a fair thing to do.

[00:02:32] Speaker 00:
But do you think at this point you should be given another opportunity to amend?

[00:02:39] Speaker 03:
Absolutely.

[00:02:40] Speaker 03:
And the reason I was going through those allegations about what happened, what representations were made, and so forth, is because that's what's pled in the complaint.

[00:02:49] Speaker 03:
And all under FRCP 8, all that's required is a short and plain statement of the claim showing that the pleader is entitled to relief.

[00:02:57] Speaker 03:
Some plausible claim can be made out of those facts.

[00:03:01] Speaker 03:
And here, Your Honor, if I may address the issue with respect to amendment of the pleadings.

[00:03:09] Speaker 03:
What we had was an order.

[00:03:10] Speaker 03:
There was only one opportunity to amend.

[00:03:15] Speaker 03:
But what was that?

[00:03:16] Speaker 03:
That wasn't after the court said, you got this wrong, you got this right, you got to correct this.

[00:03:21] Speaker 03:
What it was, was an order that said, and this is the June 9th order, found that- Is the court required to do that?

[00:03:29] Speaker 01:
I think the court-

[00:03:30] Speaker 01:
you know, as supposed to consider allowing amendment, and the court did, how much is the court required to point you through every deficient part of the complaint?

[00:03:45] Speaker 03:
Well, there should be some sort of notice.

[00:03:47] Speaker 03:
And the problem here is that the original order, the only order that allowed any kind of amendment said, without expressing any view as to the merits of the original motion to dismiss, we're going to give you a chance to amend.

[00:04:01] Speaker 03:
That's all it said.

[00:04:03] Speaker 03:
And if you amend, then comes the next order.

[00:04:06] Speaker 03:
If you amend, then we will take the motion to dismiss off calendar as moot.

[00:04:11] Speaker 03:
So we filed an amended complaint.

[00:04:14] Speaker 03:
And then what happens?

[00:04:15] Speaker 03:
The court issues an order on July 1, and that's at Excerpts of Record 104, and states that the defendant's motion to dismiss is dismissed as moot.

[00:04:30] Speaker 03:
And the defendant shall file its answer.

[00:04:33] Speaker 03:
It didn't say shall respond.

[00:04:34] Speaker 03:
Shall file its answer within 21 days.

[00:04:38] Speaker 03:
So that is all we had.

[00:04:39] Speaker 03:
We had no indication whatsoever as to why the complaint was insufficient when on these facts, these basic facts, there certainly was a claim that could be made under the Washington Products Liability Law.

[00:04:56] Speaker 03:
And again, without even having any sort of chance to really amend with some sort of indication as to what the court was thinking.

[00:05:04] Speaker 01:
I guess one of my questions is, I believe the defendant, Topshop, argued below that nothing in the complaint indicated Count 6 arose out of the UCC.

[00:05:20] Speaker 01:
or under the UCC, and you didn't clarify your UCC theory.

[00:05:27] Speaker 01:
So I'm trying to figure out how does that comply with Rule 8's requirement that you must give the defendant notice.

[00:05:39] Speaker 03:
Well, although the word or acronym UCC did not appear in the complaint, we did specify that there was an actual contract.

[00:05:49] Speaker 03:
Now, under Washington law, there's no requirement for privity for that type of claim, whereas under the UCC, there is.

[00:05:56] Speaker 03:
And in our amended complaint, it does allege that there was a contract.

[00:06:00] Speaker 03:
So again, with all of these facts, there was clearly relevant information pled that would lead

[00:06:09] Speaker 03:
the reader of the complaint to believe that there's some sort of plausible claim.

[00:06:14] Speaker 03:
It's just a matter of some additional facts that perhaps may need to be pledged.

[00:06:19] Speaker 00:
Well, I mean, is it a common law claim or is it a statutory claim?

[00:06:24] Speaker 00:
Number six.

[00:06:26] Speaker 03:
Number six, well, if it's under the UCC, it would be under the UCC statute.

[00:06:31] Speaker 00:
But that's not pled, right?

[00:06:34] Speaker 03:
Pardon me?

[00:06:34] Speaker 03:
That's not pled.

[00:06:35] Speaker 03:
It's not.

[00:06:36] Speaker 03:
However, the facts that were pled are sufficient to establish that an amendment would not have been futile in this case.

[00:06:46] Speaker 03:
So our argument is two parts.

[00:06:47] Speaker 03:
One, we do believe that it was sufficiently pled.

[00:06:50] Speaker 03:
But even if it were not,

[00:06:52] Speaker 03:
that the district court erred in failing to allow leave to amend.

[00:06:57] Speaker 03:
Because with all of these facts pled, even if they were not perfectly pled, there was a claim to be made.

[00:07:03] Speaker 03:
Because clearly, light bulbs aren't supposed to just explode or start a fire.

[00:07:09] Speaker 03:
And there certainly was damage.

[00:07:11] Speaker 03:
So there was product representation made and a damage.

[00:07:17] Speaker 03:
And this is where we end up with the complaint situation.

[00:07:21] Speaker 00:
In terms of the complaint also, as I understand it, you're claiming that defendant is both a seller and a manufacturer.

[00:07:32] Speaker 00:
Is that right?

[00:07:33] Speaker 00:
Correct.

[00:07:34] Speaker 03:
We're pleading that again at the pleading stage.

[00:07:37] Speaker 03:
So all of the other nuances, the details, will be filled in, in turn, with discovery.

[00:07:44] Speaker 00:
But there's some basic differences in product liability.

[00:07:48] Speaker 00:
between the obligation of a seller and the obligation of a manufacturer, and particularly with respect to sellers, it only applies if the seller had the possession or control of the product.

[00:08:02] Speaker 00:
And I don't see that alleged anywhere.

[00:08:04] Speaker 00:
It talks about 720402 that the strict liability applies only if there's these certain exceptions.

[00:08:16] Speaker 00:
And I don't see any of that pled.

[00:08:20] Speaker 00:
Maybe you can fill us in on what you think the exception is and where we would find that in the amended complaint.

[00:08:26] Speaker 03:
Well, Your Honor, that is another area where my colleague has pointed that out in their answering brief.

[00:08:32] Speaker 03:
That is something that, again, is very easy to amend.

[00:08:36] Speaker 00:
I mean, so I guess the bottom line, in your view, is you can fix all this if you can have one more amendment.

[00:08:43] Speaker 03:
Exactly, Your Honor.

[00:08:46] Speaker 03:
And the stage where this was left was we thought we had a viable complaint.

[00:08:53] Speaker 03:
Certainly on its face, the facts lead to the conclusion that there were viable causes of action, claims that could be made based upon, again, all we need to show is that there is some sort of ability to amend and that amendment would not be futile.

[00:09:10] Speaker 03:
If all we need to do is say they had possession, or again, meet a few other criteria, that is certainly a matter that can be amended.

[00:09:20] Speaker 03:
And also, we have to especially request that we keep in mind that we're talking about a terminating sanction.

[00:09:28] Speaker 03:
So here we have, and if I may go back to the fact that a judge talked about whether or not some information or guidance must be given, here we had absolutely no guidance.

[00:09:40] Speaker 03:
And so we would respectfully request that prior to an actual terminating sanction being forthcoming, that there should be some sort of opportunity.

[00:09:51] Speaker 03:
Here, there was no oral argument.

[00:09:53] Speaker 03:
All we had was one order that said, I'm not going to talk about the merits, but you can amend.

[00:10:00] Speaker 03:
We amended, and then it was dismissed.

[00:10:02] Speaker 03:
That was it.

[00:10:03] Speaker 03:
No oral argument, nothing.

[00:10:06] Speaker 03:
And here, I think every single,

[00:10:09] Speaker 03:
Deficiency, if we can call it that, that my colleague has pointed out, is certainly something that can be amended.

[00:10:18] Speaker 03:
And Your Honors, I've used up a little over 10 minutes of my time.

[00:10:25] Speaker 03:
If the court has no questions, I'd like to reserve the remainder for my rebuttal.

[00:10:29] Speaker 03:
Thank you.

[00:10:29] Speaker 03:
Thank you.

[00:10:41] Speaker 02:
Good morning your honors may it please the court Jackie Mitchson for appellant defendant top shelf we're here today asking that you affirm the trial court's order dismissing the complaint in this case I think the court has obviously looked at the complaints the two complaints the first one and the amended one pretty closely and has seen that there are some

[00:11:00] Speaker 02:
factual deficiencies.

[00:11:01] Speaker 02:
I wanted to spend a little bit of time talking about how the procedural history sort of got to the point where the dismissal occurred.

[00:11:09] Speaker 02:
This started in state court here in Washington where the pleading standard is different than in federal court.

[00:11:16] Speaker 02:
The pleading standard is just a notice pleading standard and this commonly happens upon removal where the

[00:11:22] Speaker 02:
complaint wouldn't be sufficient under the federal rules, but it might have been under the Washington rules.

[00:11:28] Speaker 02:
The defendant moves to dismiss, and the court orders to the extent that there's deficiencies under the federal standard, you need to amend the complaint to fix those deficiencies.

[00:11:39] Speaker 02:
So plaintiff had the opportunity to amend.

[00:11:42] Speaker 02:
They had the 12b6 motion that defendants filed in this case outlining the various areas where factual allegations were missing and making the complaint deficient under the federal standard.

[00:11:54] Speaker 02:
And yet if you compare the two complaints, the originally filed and the amended complaint, you can see that there were scant changes.

[00:12:01] Speaker 02:
There were truly very few changes.

[00:12:03] Speaker 02:
It didn't look like the plaintiff took it seriously to

[00:12:08] Speaker 02:
amend and add additional allegations in there.

[00:12:11] Speaker 02:
And so when the defendant moved to dismiss a second time and plaintiff responded by attacking the fact that it was a motion to dismiss rather than an answer,

[00:12:26] Speaker 02:
and moving for sanctions, they didn't ask for leave to amend.

[00:12:32] Speaker 02:
They didn't argue that their pleading was sufficient.

[00:12:35] Speaker 02:
They just said, you didn't do what you were supposed to do.

[00:12:38] Speaker 02:
I want you to be sanctioned.

[00:12:40] Speaker 02:
And so the court really is left sitting there with no opportunity to understand in what way is this complaint alleging

[00:12:48] Speaker 02:
actual claims.

[00:12:49] Speaker 02:
In what way could this complaint be amended a second time to actually allege sufficient facts to make out claims here?

[00:12:57] Speaker 02:
And so I think the court acted reasonably in dismissing the case there, where this plaintiff had a chance to amend, didn't really take it, had another motion to dismiss, and just merely said, we've said enough.

[00:13:13] Speaker 02:
That's it.

[00:13:16] Speaker 00:
I mean, it's a little bit odd, because it comes up from Washington court.

[00:13:20] Speaker 00:
Right.

[00:13:21] Speaker 00:
And I guess one just bottom line question is, what would be the harm in an amendment, assuming things could be amended?

[00:13:30] Speaker 00:
I think there's at least one of the claims I pointed out is foreclosed straight up.

[00:13:35] Speaker 00:
But what would be the harm in amendment?

[00:13:38] Speaker 00:
And then you could have a fair debate, or the court would have a full plate to see

[00:13:44] Speaker 00:
whether any of those claims survive.

[00:13:47] Speaker 02:
I think Your Honor's correct in saying at least one of the claims is completely foreclosed.

[00:13:52] Speaker 02:
I think the trial court would have been within its discretion to allow amendment here, and that wouldn't have been questionable.

[00:13:59] Speaker 02:
Now what would be the harm is it's been since 2019 that this fire and damage occurred, and we're now in 2024.

[00:14:05] Speaker 02:
The trial court acted reasonably and within its discretion.

[00:14:09] Speaker 02:
The standard for dismissing with prejudice is whether it was an abuse of discretion to do so, and I don't think it was under the specific facts of this case.

[00:14:18] Speaker 02:
There's no case law from this circuit or elsewhere that says that the trial court's required to give a road map to the plaintiffs of what they need to plead specifically in order to have a successful complaint.

[00:14:33] Speaker 01:
So then let's look at what is in the complaint.

[00:14:36] Speaker 01:
I understand your argument regarding amendment.

[00:14:40] Speaker 01:
I think you argue that count number three is not plausibly stated because there's no allegations regarding a reasonable consumer's expectations.

[00:14:53] Speaker 01:
But given that we have to take and make reasonable inferences in FAT's favor, the appellate's favor, can't

[00:15:03] Speaker 01:
Can't we infer that most consumers would not expect lights to explode?

[00:15:11] Speaker 02:
I think that is an inference that you could make.

[00:15:13] Speaker 02:
That would be reasonable to make that.

[00:15:21] Speaker 02:
So then would count three survive then?

[00:15:24] Speaker 02:
It may have been able to, but they didn't allege what expectations consumers would have other than all they alleged here is that some lights imploded or exploded, and that's it.

[00:15:40] Speaker 02:
That's all we're left with.

[00:15:41] Speaker 00:
But most people who buy these lights or whatever kind, put in their greenhouse or whatever, they don't really expect them to blow up, isn't that common?

[00:15:51] Speaker 00:
Common sense that could be inferred.

[00:15:54] Speaker 00:
Yeah, it is common sense.

[00:15:56] Speaker 00:
It's true about everything we buy.

[00:15:58] Speaker 00:
We hope it doesn't blow up or break, right?

[00:16:00] Speaker 02:
All of us sitting here hope these lights don't blow up.

[00:16:03] Speaker 02:
Agree on that.

[00:16:06] Speaker 02:
But here, I think the problem is that there just was lacking facts on these.

[00:16:11] Speaker 02:
And they were given the opportunity to replede once.

[00:16:15] Speaker 02:
They didn't take it seriously.

[00:16:16] Speaker 02:
They attacked counsel's choices on what type of responsive pleading they filed.

[00:16:25] Speaker 02:
And the trial judge didn't think that was reasonable under the circumstances, and he has discretion in that regard.

[00:16:32] Speaker 02:
And so we're asking that the court affirm the trial judge.

[00:16:36] Speaker 02:
Unless you all have further questions for me, I will let my colleague continue.

[00:16:55] Speaker 03:
My colleague points out that perhaps my client misread the order instead of filing a response to the second motion to dismiss that a motion for sanctions was filed.

[00:17:11] Speaker 03:
But if anything, if there's an error, it's due to the vague order.

[00:17:17] Speaker 03:
The order specifically states, defendant shall file an answer.

[00:17:24] Speaker 03:
if the plaintiff files an amended complaint.

[00:17:26] Speaker 03:
We have this order that says, motion dismissed as moot, defendant to file an answer.

[00:17:32] Speaker 03:
That's what we expected, but that's not what happened.

[00:17:35] Speaker 03:
If anything, it was a misunderstanding.

[00:17:37] Speaker 03:
But we know that the complaint can be amended.

[00:17:42] Speaker 03:
And it was just a matter of a few, again, a few sentences to make that correction.

[00:17:47] Speaker 03:
And in here, what we have is the situation where

[00:17:51] Speaker 03:
Because it can be amended, the trial court did abuse its discretion, because unless it would be futile for an amendment, the court must allow an amendment, must give leave to amend.

[00:18:05] Speaker 03:
And here, this is not a situation where there were repeated opportunities.

[00:18:09] Speaker 03:
There was one.

[00:18:10] Speaker 03:
And the only one we know of, and I thank my counsel for reminding me that the original complaint was from Washington, there was one chance.

[00:18:18] Speaker 03:
But again, that was countered with, I'm not ruling on the merits.

[00:18:23] Speaker 03:
But OK, you can amend.

[00:18:25] Speaker 03:
But beyond that, there was nothing more.

[00:18:29] Speaker 03:
And if the court has no further questions, I would ask that, again, the judgment be vacated and that the order granting the motion to dismiss be reversed.

[00:18:43] Speaker 03:
Thank you.

[00:18:44] Speaker 01:
Thank you.

[00:18:45] Speaker 01:
Thank you both for your oral argument presentations here today.

[00:18:48] Speaker 01:
The case of Fat and Sticky versus Top Shelf LED is now submitted.