United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS OF DEFENDANT A-1 AUTO PARTS & REPAIR,
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion to Dismiss filed by Defendant
A-1 Auto Parts & Repair Inc. pursuant to Fed.R.Civ.P.
12(b)(6). Plaintiffs have not filed a response. After due
consideration of the Motion and the relevant law, it is the
Court's opinion that A-1 has established its affirmative
“innocent seller” defense. A-1's Motion will
therefore be granted. Plaintiffs' claims against A-1 will
be dismissed without prejudice, and Plaintiffs will be
granted an opportunity to amend their claims should they wish
to do so.
products liability case, Plaintiffs allege that William
Dickens developed mesothelioma as a result of his exposure to
asbestos from products he used in his work as a mechanic, and
his and his family's use of talcum powder products.
Plaintiffs allege state law claims of negligence in
designing, testing, manufacturing, marketing, and selling the
products, strict liability, negligence per se, breach of
warranties, and conspiracy to conceal the dangers in the use
and exposure to the products.
A-1 argues that Plaintiffs' claims against it should be
dismissed pursuant to Rule 12(b)(6) because Plaintiffs'
allegations show A-1 is an “innocent seller”
under the Mississippi Product Liabilities Act, Miss. Code
Ann. § 11-1-63.
MPLA, as amended in 2014, provides the exclusive remedy
against a product manufacturer or seller “in any action
for damages caused by a product including, but not limited
to, any action based on a theory of strict liability in tort,
negligence or breach of implied warranty, except for
commercial damage to the product itself.” Miss. Code
Ann. § 11-1-63(a). Additionally, the provision applies
to any claim that is derivative of a product liability claim,
such as the conspiracy to conceal a product's danger
alleged by Plaintiffs in this case. See Stubblefield v.
Suzuki Motor Corp., No. 3:15-CV-18-HTW-LRA, 2018 WL
4764175, at *9 (S.D.Miss. Sept. 30, 2018) (derivative claims
must be analyzed under the MPLA); see also Smith v. Gen.
Motors, LLC, No. 3:17CV471TSL-RHW, 2017 WL 582330, at *1
(S.D.Miss. Oct. 13, 2017) (MPLA governs claims based on a
theory that the defendant concealed product defects in
violation of its duty to warn). Therefore, all of
Plaintiffs' claims against A-1 are governed by the MPLA.
“innocent seller” provision of the MPLA states
that a seller “shall not be liable” for a claim
brought pursuant to section 11-1-63(a) unless
the seller or designer exercised substantial control over
that aspect of the design, testing, manufacture, packaging or
labeling of the product that caused the harm for which
recovery of damages is sought; or the seller or designer
altered or modified the product, and the alteration or
modification was a substantial factor in causing the harm for
which recovery of damages is sought; or the seller or
designer had actual or constructive knowledge of the
defective condition of the product at the time he supplied
the product. It is the intent of this section to
immunize innocent sellers who are not actively negligent, but
instead are mere conduits of a product.
Miss. Code Ann. § 11-1-63(h) (emphasis added).
innocent seller exemption is an affirmative defense under
Mississippi law. Thomas v. FireRock Prods., LLC, 40
F.Supp.3d 783, 791-92 (N.D. Miss. 2014). “In order for
a 12(b)(6) dismissal to be appropriate on the basis of an
affirmative defense, the defense must be established on the
face of the complaint.” Id. (quoting
Encompass Office Sols., Inc. v. Ingenix, Inc., 775
F.Supp.2d 938, 959 (E.D. Tex. 2011)).
make few specific allegations against A-1. They allege that
William was “exposed to asbestos-containing friction
products supplied by A-1 Auto Parts, Inc.” and that A-1
(along with other suppliers) was “negligent for failing
to warn the users of potential health hazards from the use
of” the asbestos-containing products they sold. (Compl.
7, 20, ECF No. 4-1.) Plaintiffs also consistently allege that
the products were in the same condition when William used
them as when they were originally manufactured. (See,
e.g., id. at 5 (¶11), 21 (¶36-37).) These
allegations make it implausible that A-1 exercised control
over the manufacture of the products, or that A-1 altered the
products after manufacture. Further, a “general
allegation that [the defendant] failed to warn of the dangers
it knew about cannot be equated with a factual allegation
that [the defendant] had actual or constructive knowledge of
the dangers that caused [the] injury.” Thompson ex
rel. Thompson v. Apple, Inc., No. 3:17CV237-DPJ-FKB,
2017 WL 2271729, at *2 (S.D.Miss. May 24, 2017). Because
Plaintiffs make only a general allegation that A-1 failed to
warn of potential health hazards that could result from the
use of the products it sold to William, Plaintiffs have not
pled a plausible claim against A-1 that overcomes A-1's
affirmative “innocent seller” defense. For this
reason, the Motion to Dismiss will be granted and
Plaintiffs' claims against A-1 dismissed without
though Plaintiffs have not opposed the dismissal requested by
A-1, they may wish to amend their claims so as to avoid final
dismissal. They should be given the opportunity to do so.
See Great Plains Trust Co. v. Morgan Stanley Dean Witter
& Co., 313 F.3d 305, 329 (5th Cir. 2002).
IS THEREFORE ORDERED AND ADJUDGED that the 
Motion to Dismiss filed by Defendant A-1 Auto Parts &
Repair, Inc. is GRANTED. Plaintiffs'
claims against A-1 Auto Parts & Repair, Inc. are
DISMISSED without prejudice.
IS FURTHER ORDERED AND ADJUDGED that Plaintiffs are
granted fourteen (14) days from the date of this Order to
file a motion for leave to file an amended complaint,