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Hinton v. Amazon.Com.Dedc, LLC

United States District Court, S.D. Mississippi, Eastern Division

December 9, 2014

MARSHA HINTON, PLAINTIFF
v.
AMAZON.COM.DEDC, LLC, AMAZON.COM, LLC, and eBAY, INC., DEFENDANTS

For Marsha Hinton, Plaintiff: Lawrence E. Abernathy, III, LEAD ATTORNEY LAWRENCE E. ABERNATHY, III, ATTORNEY, Laurel, MS; Leslie D. Roussell, Leslie Roussell, P.A., Laurel, MS.

For Dick's Sporting Goods, Inc., Defendant: Meade W. Mitchell, LEAD ATTORNEY, BUTLER, SNOW, O'MARA, STEVENS & CANNADA, Jackson, MS; William Polk Thomas, BUTLER, SNOW, O'MARA, STEVENS & CANNADA, PLLC-Ridgeland, Ridgeland, MS.

For American Sportsman Holdings Co. doing business as Bass Pro, LLC. doing business as Bass Pro Outdoors Online, LLC, Defendant: Charles Greg Copeland, LEAD ATTORNEY, COPELAND, COOK, TAYLOR & BUSH, PA - Ridgeland, Ridgeland, MS; Barry B. Sutton - PHV, PRO HAC VICE, CLARK HILL, PLC, Detroit, MI; Bishop A. Bartoni - PHV, CLARK HILL, PLC, Detroit, MI; Stephanie I. Marino Anderson, CLARK HILL, PLC, Detroit, MI; Timothy J. Sterling, COPELAND, COOK, TAYLOR & BUSH, PA - Ridgeland, Ridgeland, MS.

For Amazon.com.DEDC, LLC, Amazon.com, LLC, Defendants: Patrick J. Schepens, LEAD ATTORNEY, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH, APLC - Mandeville, Mandeville, LA; Edward F. Rudiger, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH - New Orleans, New Orleans, LA; Lambert J. Hassinger - PHV, Jr., PRO HAC VICE, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH - New Orleans, New Orleans, LA.

For eBay, Inc., Defendant: Joseph Anthony Sclafani, LEAD ATTORNEY, BRUNINI, GRANTHAM, GROWER & HEWES, PLLC-Jackson, Jackson, MS; Christopher V. Popov - PHV, PRO HAC VICE, VINSON & ELKINS, LLP - Houston, Houston, TX; Grayson E. McDaniel - PHV, PRO HAC VICE, VINSON & ELKINS, LLP - Austin, Austin, TX; Marc A. Fuller - PHV, Thomas S. Leatherbury - PHV, PRO HAC VICE, VINSON & ELKINS, LLP - Dallas, Dallas, TX.

For Bass Pro, LLC., Bass Pro Outdoors Online, LLC, Defendants: Timothy J. Sterling, COPELAND, COOK, TAYLOR & BUSH, PA - Ridgeland, Ridgeland, MS.

Page 686

MEMORANDUM OPINION AND ORDER

Keith Starrett, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on the Defendant eBay, Inc.'s Motion to Dismiss [181]. Having considered the submissions of the parties and the applicable law, the Court finds that the motion is well taken and should be granted.

I. BACKGROUND

This action centers on the Plaintiff Marsha Hinton's purchase of hunting equipment allegedly subject to recalls issued by the United States Consumer Product Safety Commission (" CPSC" ). Defendant eBay, Inc. (" eBay" ) " operates an Internet-based service in which it enables member sellers to offer items for sale to member buyers in what eBay characterizes as either

Page 687

auction-style or fixed price formats." Gentry v. eBay, Inc., 99 Cal.App.4th 816, 820-21, 121 Cal.Rptr.2d 703 (Cal. Ct. App. 2002); see also United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., No. 13-2983, 2014 WL 4375638, at *3 (E.D. Pa. Sept. 4, 2014) (describing eBay as an " internet auction and sale site" ). Plaintiff claims that she purchased a treestand and two safety harnesses that are subject to CPSC recalls through eBay's website. It appears that the Plaintiff sought to buy recalled hunting equipment, and that she never intended to use the equipment. The Plaintiff's adult son, Timothy Hinton, died in connection with a hunting accident in November of 2012, and she has publically stated, " When I realized they were selling these tree stands that had been recalled, I decided I would do whatever I could to keep a wife or mother from standing over a casket" . (Doc. No. [37-1] at p. 1.) The specific hunting equipment involved in Timothy Hinton's hunting accident is not at issue in this lawsuit. Furthermore, no wrongful death claim has been asserted in this cause.

This action was initially filed in the Circuit Court of the Second Judicial District of Jones County, Mississippi. On October 25, 2013, Defendants Amazon.com.dedc, LLC and Amazon.com, LLC filed their Notice of Removal [1], asserting that the Court possessed jurisdiction over this cause pursuant to Title 28 U.S.C. § § 1331 (federal question), 1332 (diversity of citizenship), and 1367 (supplemental jurisdiction). The remaining Defendants timely consented to the removal.[1] On March 7, 2014, Plaintiff filed her Amended Complaint [160], presenting the following counts: (1) request for injunction; (2) negligence; (3) intentional conduct; (4) gross negligence; (5) breach of the implied warranty of merchantability; (6) ...


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