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Ware v. North Central Industries, Inc.

United States District Court, D. Oregon

November 20, 2017

KORI WARE, an individual; et al., Plaintiffs,
v.
NORTH CENTRAL INDUSTRIES, INC. a foreign corporation, et al., Defendants.

          ORDER

          Michael J. McShane United States District Judge

         Plaintiffs bring this negligence and products liability action alleging they suffered injuries from fireworks distributed by defendant North Central Industries, Inc. Plaintiffs brought similar claims against the retailer of the fireworks. North Central removed this action, alleging at least some of the claims raised substantial questions under, and were completely preempted by, federal law. Plaintiffs move to remand, arguing this Court lacks subject matter jurisdiction over this action raising claims under only state law. For the reasons discussed below, plaintiffs' motion to remand, ECF No. 8, is GRANTED.[1]

         BACKGROUND[2]

         In 2015, plaintiffs purchased fireworks known as “California Candles” from defendant Fundz 4 Kidz, Inc., a fireworks retailer. On June 24, 2015, North Central sent a letter to Fundz 4 Kidz informing the retailer its California Candles were known to “misfire” and could burn and injure users. North Central stated the “risk to the public” required the fireworks to be removed from sale immediately, and anyone who purchased the fireworks should be warned to not use the product. Compl., ¶ 8. Fundz 4 Kidz continued to sell the fireworks and did not warn customers who already purchased the fireworks of the known danger. As alleged by plaintiffs:

After sending the June 24 letter to [defendant] Aaron Taylor and F4K, defendant NC Industries apparently believed that it had no responsibility to further warn families who purchased its products, and accordingly did not perform a formal recall of the product, did not perform any outreach to potential fireworks users about the dangers of the California Candles, and did not follow up with retailers, including F4K, to ensure that they were taking the steps necessary to account for the dangerous products and prevent harm to families celebrating the national holiday. Instead, defendant NC Industries waited five months after all sales of the California Candles for the 2015 holiday were final and after numerous adults and children were burned by the product to make a formal public recall of the product through the Consumer Safety Protection Commission.

Compl., ¶ 9.

         Oblivious to the danger, plaintiffs used the fireworks and were injured. Some of the plaintiffs are minors. The fireworks contained warning labels advising children could use the fireworks under “adult supervision.” Compl. ¶ 12. The allegations from the various plaintiffs are essentially the same. They each allege North Central was negligent when it chose to:

(a) Distribute California Candles that could malfunction and burn users;
(b) Not adequately warn retailers against selling California Candles;
(c) Not adequately warn consumers against using the California Candles;
(d) Not contanct the Consumer Product Safety Commission to perform a national recall before the July 4th holiday;
(e) Not adequately publicize the dangers of the California Candles after distributing them for sale; and
(f) Sell California Candles with labels indicating that they could be held when lit and used near or by children.

Compl., ¶ 13.

         As with the negligence claims, plaintiffs' strict product liability claims are essentially the same. Plaintiffs allege defendants sold and distributed products in a defective condition unreasonably dangerous to consumers. The fireworks reached consumers without substantial change in the condition North Central sold them. Defendants failed to ...


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