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govinfo:USCOURTS-laed-2_25-cv-00468-0
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TORI DAVIS,
Plaintiff
CIVIL ACTION
VERSUS NO. 25-468
AMAZON.COM, INC., ET AL.,
Defendants
SECTION: “E” (4)
ORDER AND REASONS
Before the Court is Defendant Amazon.co m, Inc.’s (“Defendant” or “Amazon”)
Partial Motion to Dismiss Plaintiff’s Se cond Supplemental and Amending Complaint,
seeking dismissal of Counts 2 through 7. 1 Plaintiff Tori Davis, individually, and on her
behalf of her minor children KD1, KD2, and KD3, filed an opposition. 2 Defendant filed a
reply.3 Subsequently, the Court ordered the pa rties to submit supplemental briefings. 4
Defendant timely filed a supplemental brief, and Plaintiff timely filed a response.5
BACKGROUND
I. Factual Background
On March 10, 2025, Plaintiff filed this action against Amazon and Shenzen Baseus
Technology Co., LTD d/b/a Baseus (“Baseus ”), seeking damages for alleged injuries
sustained by Plaintiff and her minor children arising from a Baseus Magnetic Power Bank
(“Baseus Power Bank”) manufactured by Baseus and purchased through Amazon.6
Plaintiff alleges that on March 9, 2024 she charged the Baseus Power Bank in her
1 R. Doc. 28.
2 R. Doc. 29.
3 R. Doc. 30.
4 R. Doc. 37.
5 R. Doc. 38; R. Doc. 40.
6 R. Doc. 24 at p. 2.
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vehicle. While it was charging, the Baseus Power Bank spontaneously ignited, producing
flames and heavy smoke. 7 According to Plaintiff, the fire caused physical injuries to her
and her minor children and destroyed personal property located inside the vehicle and
the vehicle itself. 8 Plaintiff alleges the Baseus Power Bank was defective and that, as a
result, she and her children suffered physic al injuries, emotional distress, pain and
suffering, and incurred medical expenses.9
II. Procedural Background
Plaintiff asserts the following causes of action against Amazon and Baseus: (Count
1) a claim under the Louisiana Products Li ability Act (“LPLA”), La. R.S. 9:2800.51 et
seq.;10 (Count 2) a Louisiana state-law claim for negligence;11 (Count 3) a Louisiana state-
law claim for declaratory relief;12 (Count 4) a Louisiana state-law claim for redhibition;13
(Count 5) a claim for negligence per se ba sed on the Federal Consumer Product Safety
Act, 15 U.S.C. § 2064(b), et seq.;14 (Count 6) a Louisiana state-law claim for deceptive and
unfair trade practices;15 and (Count 7) a claim under th e Magnuson-Moss Warranty Act,
15 U.S.C. § 2301 et seq.16
On November 17, 2025, Amazon file d the instant Motion to Dismiss. 17 Amazon
seeks dismissal with prejudice of the non-LPLA causes of action asserted in Counts 2
through 7 of the Second Supplemental and Amending Complaint.18
7 Id..
8 Id.
9 Id. at p. 9.
10 Id. at pp. 3-4.
11 Id. at pp. 4-6.
12 Id. at pp. 6-7.
13 Id. at pp. 7-8.
14 Id. at p. 8.
15 Id.
16 Id. at pp. 8-9.
17 R. Doc. 28.
18 Id.
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On February 6, 2026, this Court ordered the parties to file supplemental briefing
addressing the Louisiana Supreme Court’s 2024 decision in Pickard v. Amazon.com
concerning (1) the LPLA’s applicability to Amazon, 19 and (2) whether an online operator
storefront may be held liable in Louisiana under the theory of negligent undertaking.20
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedu re 12(b)(6), a district court may dismiss
a complaint for failure to state a claim upon which relief may be granted if the plaintiff
has not set forth factual allegations in suppo rt of his claim that would entitle him to
relief.21 “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.’”22 “A claim
has facial plausibility when th e plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defend ant is liable for the misconduct alleged.” 23
The Court, however, does not accept as true legal conclusions or mere conclusory
statements, and “conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.”24 Indeed, “threadbare recitals
of elements of a cause of action, supported by mere conclusory statements” or “naked
assertion[s] devoid of further factual enhancement” are not sufficient.25
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that
19 R. Doc. 37; Pickard v. Amazon.com, Inc., 387 So.3d 515 (La. 2024).
20 R. Doc. 37.
21 Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007); Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir.
2007).
22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
23 Id.
24 S. Christian Leadership Conf. v. Sup. Ct. of the State of La. , 252 F.3d 781, 786 (5th Cir. 2001) (citing
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
25 Iqbal, 556 U.S. at 663, 678 (citations omitted).
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the pleader is entitled to relief.’”26 However, “legal conclusions can provide the framework
of a complaint, [if] they [are] su pported by factual allegations.” 27 “Determining whether
a complaint states a plausible claim for relief [i s] . . . a context-specific task that requires
the reviewing court to draw on its ju dicial experience and common sense.” 28 “Although
detailed factual allegations are not requir ed,” “[d]ismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” 29 Whether a plaintiff “will be able to offer
sufficient proof to support [his or her] clai ms is more appropriate in the context of a
motion for summary judgment or a trial on the merits” rather than in a motion to
dismiss.30 “[I]ntensive disputes of material fact . . . are usually more appropriate for
summary judgment . . . .”31
LAW AND ANALYSIS
III. Plaintiff fails to allege a negligent undertaking claim in Count 2 and
that claim will be dismissed with prejudice.
A. The parties’ arguments.
Plaintiff brings a negligence claim against Amazon for failing to exercise
reasonable care in screening, marketing, and distributing defective products, failing to
monitor and remove products subject to safe ty complaints and/or recall, and failing to
warn consumers of known fire hazards.32 Plaintiff argued in her original opposition to the
motion to dismiss that she has brought a negligence claim based on the Defendant’s
failure to protect consumers because federal consumer protection laws, specifically the
26 Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
27 Id. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555.
28 Iqbal, 556 U.S. at 679.
29 Cutrer v. McMillan, 308 Fed.Appx. 819, 820 (5th Cir. 2009) (per curiam) (citations omitted).
30 Smith v. GE Healthcare, Inc., No. 3:19-CV-00492, 2019 WL 4565246, at *7 (W.D. La. 2019).
31 Dong Phuong Bakery, Inc. v. Gemini Soc'y, LLC, No. CV 21-1109, 2022 WL 898750, at *5 (E.D. La. 2022).
32 R. Doc. 24 at pp. 4-6.
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Consumer Product Safety Act,33 can inform the duty and breach elements of a Louisiana
negligence claim, even when those federal statutes do not themselves create private
causes of action. 34 Plaintiff argued the duty to screen, monitor, delist hazardous items,
and report safety information are consistent with the “duty concept embraced” in Merrell
v. 1 st Lake Properties, Inc. 35 and George V. Hobby Lobby Stores, Inc. 36 Defendant
responded that the LPLA provides the exclusive theory of recovery against a manufacturer
or seller for alleged harm caused by a product and Plaintiff cannot pursue a negligence
claim in addition to, or in the alternative to, her LPLA claim.37
At the Court’s request, in their suppleme ntal briefing the parties addressed a case
from the Western District of Louisiana, Pickard v. Amazon.com, Inc .38 In Pickard, the
decedent, Archie Pickard, purchased a rechar geable battery charger on Amazon’s online
marketplace from a third-party seller.39 The product was shipped to Amazon’s warehouse
and the order was fulfilled through Amazon’s website.40 Amazon took physical custody of
the item, controlled the transaction, packaged the item, and delivered the item.41 Shortly
after Mr. Pickard received the battery, the de vice caught fire and burned down his home
causing his death. 42 Because there were two unsettled questions of law, the Western
District of Louisiana submitted two questions to the Louisiana Supreme Court:
Under Louisiana products-liability law, is the operator of an online
marketplace a “seller” of third-party products sold in its marketplace when
the operator did not hold title to the product but: (i) had physical custody
of the product in its distribution warehouse; and (ii) controlled the process
33 15 U.S.C. §§ 2051-2089.
34 R. Doc. 29 at p. 4.
35 717 F.Supp.3d 512 (E.D. La. 2024).
36 769 F.Supp.3d 537 (E.D. La. 2025).
37 R. Doc. 30 at p. 2.
38 R. Doc. 37; Pickard v. Amazon.com, Inc., 2024 WL 4884428, at *1 (W.D. La. 2024).
39 Pickard v. Amazon.com, Inc., 2024 WL 4884428, at *1 (W.D. La. 2024).
40 Id. at *2.
41 Id.
42 Id.
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of the transaction and delivery through its product fulfillment program?43
Under what circumstances, if any, would the operator of an online
marketplace who voluntarily adopts safety procedures for the products sold
through its website by third-party sellers, be liable for injuries sustained by
the purchaser of a defective product based on a theory of negligent
undertaking?
44
The Louisiana Supreme Court answered the first certified question by determining
when an online marketplace operator is a “s eller” for purposes of exclusivity under the
LPLA.45 The Louisiana Supreme Court relied on La. R.S. 9:2800.53 which provides, “a
manufacturer includes a seller in two circumstances: (1) when the seller exercises control
over a characteristic of the product’s design , construction, or quality; and (2) when the
seller imports and distributes products of a foreign manufacturer if the seller is the
manufacturer’s alter ego.”46 The Louisiana Supreme Court held that “under the LPLA, the
operator of an online marketplace is a ‘seller’ of third-party products sold in its
marketplace when the operator did not hold title to the product but: (i) had physical
custody of the product… and (ii) controlled the process of the transaction and delivery.”47
The Louisiana Supreme Court also held th at Amazon, as the seller of a foreign
manufacturer’s product, exercised control and possession over the product and is
considered a “seller” under the LPLA’s statutory language.48
The Louisiana Supreme Court’s answer to th e first certified question clarified that
Plaintiff has a cause of action against the Defendant under the LPLA. The answer to the
second certified question affects the Plaintiff’s negligence cause of action.
43 Id. at *3.
44 Id.
45 Pickard v. Amazon.com, Inc., 387 So.3d 515, 523 (La. 2024).
46 La. R.S. §§ 9:2800.53(1)(b), (d); Pickard, 387 So.3d at 519.
47 Pickard, 387 So.3d at 523.
48 Id. at 522-23.
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B. Plaintiff fails to allege a negligent undertaking claim.
In Plaintiff’s supplemental briefing addressing Pickard,49 Plaintiff appears to have
abandoned her consumer protection-based argu ment in favor of an argument that in
Count 2 she has brought an action against th e Defendant for negligent undertaking. To
the extent that Plaintiff did not abandon her consumer protection-based argument, the
Court finds that any such claim is subsumed by Plaintiff’s Count 1 claim under the LPLA
because it seeks damages that stem from an allegedly defective product.
Plaintiff now argues that in Count 2 sh e has brought a negligent undertaking claim
against Amazon, as authorized by Pickard.50 The Western District’s second certified
question to the Louisiana Supreme Court as ked whether the operator of an online
marketplace, which voluntarily adopts safety procedures for the products sold through its
website by third-party sellers, may be liable for injuries sustained by the purchaser of a
defective product based on a theory of negligent undertaking.51
In its response to the certified questi on, the Louisiana Supreme Court explained
that a claim of “ ‛negligent undertaking’ is based on the assumption of a duty.” 52 The
Louisiana Supreme Court found that Louisiana’s Civil Code does not specifically address
the assumption of a duty by one wh o otherwise owes no duty to act. 53 The Court noted
that, for assumption of a duty, Louisiana ha s adopted the Restatement of Torts Second,
Section 324A to define the standard for negligent undertaking.54
The Restatement of Torts Second, § 324A provides:
One who undertakes, gratuitously or for consideration, to render services to
49 R. Doc. 43.
50 Id. at pp. 2-3.
51 Pickard v. Amazon.com, Inc., 2024 WL 4884428, at *3 (W.D. La. 2024).
52 Pickard, 387 So.3d at 524.
53 Id.
54 Id.
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another which he should recognize as necessary for the protection of a third
person or his things, is subject to liab ility to the third person for physical
harm resulting from his failure to exer cise reasonable care to protect his
undertaking, if (a) his failure to exerci se reasonable care increases the risk
of such harm, or (b) he has undertaken to perform a duty owed by the other
to the third person, or (c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
55
The Louisiana Supreme Court explained th e two step analysis of the Restatement
of Torts Second §324A. First, the court must determine whether the defendant assumed
a duty to render services it should recognize as necessary for the protection of a third
person.56 Second, the plaintiff “must prove one of the following: (a) defendant’s failure to
exercise reasonable care increased the risk of harm to the plaintiff, (b) defendant
undertook to perform a duty owed by another to plaintiff, or (c) plaintiff’s harm was
suffered because plaintiff or the person who or iginally had the duty relied on defendant
to perform the duty.”57 The court explained that mere concern or minimal contact about
safety matters, superior knowledge and ex pertise regarding safety issues, or non-
mandatory inspections and safety recommendat ions are not sufficient to constitute an
assumption of duty.58
Plaintiff argues Pickard establishes that an online marketplace operator may
assume a duty to protect the consumer and may be held liable for negligently performing
the undertaken duty.59 Plaintiff argues in her supplem ental memorandum in opposition
to the motion to dismiss that Defendant: “a. Operates and controls an online marketplace
platform; b. Implements policies for screen ing and monitoring products; c. Maintains
procedures for removing unsafe or recalled products; d. Facilitates distribution of
55 Restatement (Second) of Torts § 324A (1965).
56 Pickard, 387 So.3d at 524-25.
57 Id. at 525.
58 Id.; see also Bujol v. Entergy Servs., Inc., 922 So.2d 1113, 1133-34 (La. 2004).
59 R. Doc. 40 at p. 1.
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products through its platform; and e. Failed to remove or prevent distribution of a product
later subject to a recall.”60 Importantly, these statements are found in Plaintiff’s argument
in opposition to the motion to dismiss but are not allegations found in Plaintiff’s Second
Supplemental and Amending Complaint.61
In Pickard, the Louisiana Supreme Court held that one who does not have a duty
to act may assume such a duty by acting. 62 The Louisiana Supreme Court requires that
the assumption of a duty be “an affirmative or positive undertaking.” 63 There is no
allegation in Plaintiff’s Second Supplemen tal and Amending Complaint that Defendant
affirmatively or positively assumed the duty to evaluate, identify, remove, or warn
customers about unsafe products on its marketplace and failed to exercise reasonable care
in the performance of that duty. However, even if Plaintiff had made such an allegation,
to allege a cause of action for negligent unde rtaking, she would also need to allege that:
(a) Defendant’s failure to exercise reasonable care increased the risk of harm to her, (b)
Defendant undertook to perform a duty owed by another to her, or (c) her harm was
suffered because she relied on Defendant to perform the duty. 64 No such allegations are
found in Plaintiff’s Second Supplemental and Amending Complaint.
The Plaintiff has failed to allege a cause of action for negligent undertaking against
Defendant and Count 2 will be dismissed with prejudice.
IV. Defendant’s Motion to Dismiss Plaintiff’s request for declaratory relief
in Count 3 will be granted as duplicative of the relief requested in Count
4 redhibition.
La. Civ. Code art. 2004 provides that any contract clause that, in advance, excludes
60 Id. at pp. 2-3.
61 R. Doc. 24.
62 Pickard, 387 So.3d at 524.
63 Id. at 525.
64 Id.; see also Bujol v. Entergy Servs., Inc., 922 So.2d 1113, 1129 (La. 2004).
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or limits the liability of one party for intentional or gross fault that causes physical injury
to the other party is null. In Count 3, Plaint iff alleges that Amazon “may attempt to rely
on terms of sale, disclaimers, or limitation -of-liability clauses to argue that Plaintiff
waived any right to sue for damages caused by the defective product.” 65 Amazon argues
Plaintiff included Count 3 in the Second Amended Complaint in an unnecessary attempt
to preserve her right to challenge any con tractual limitation Defendant raises as a
defense.66 Defendant argues the proper time for Pl aintiff to raise this argument is in
response to a contractual limitation defense asserted by the Defendant either on a motion
for summary judgment or at trial.
The Declaratory Judgment Act, 28 U.S.C. § 2201, “[confers] on federal courts
unique and substantial discretion in deciding whether to declare the rights of litigants.”67
A declaratory judgment is not a substantive cause of action, but rather “a remedy available
to a litigant who can point to an existing right that the Court has jurisdiction to enforce.”68
In Landscape Design & Const., Inc. v. Transp. Leasing/Contract ,69 the court held that,
because the parties asserted substantive claims that placed at issue the same
determinations for which they sought decl aratory judgments, separate declaratory
judgments were not necessary and therefore dismissed them.70
Adjudication of Plaintiff's LPLA claim will resolve the issues of whether the
Plaintiff waived any right to sue for damage s caused by the allegedly defective product
and whether any contractual clause attempts to exclude or limit the liability of one party
65 R. Doc. 24 at p. 6.
66 R. Doc. 28-1 at p. 6.
67Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995).
68 Fisher v. Beers, 2014 WL 3497572, at *4 (E.D. La. 2014).
69 2002 WL 257573, at *10 (N.D. Tex. 2002).
70Id.
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for physical injury to the other. Plaintiff's request for a declaration that an unidentified
contractual provision is null is duplicative of the determinations to be made in resolving
Plaintiff’s redhibition claim. Because the substantive redhibit ion claim at issue requires
resolution of the same issues that Plaint iff seeks to establish through a declaratory
judgment, a separate declaration is not nece ssary. Defendant’s motion to dismiss Count
3 will be granted.
V. Plaintiff’s redhibition claim in Count 4 is plausibly alleged and the
Defendant’s Motion to Dismiss will be denied.
A. The parties’ arguments.
Plaintiff asserts a Louisiana state-law re dhibition claim against Amazon for selling
a product containing a redhibitory defect at the time of sale.71
In its Motion to Dismiss, Amazon argues Plaintiff has failed to state a claim upon
which relief may be granted because she has not set forth factual a llegations that will
entitle her to relief on her claim for redhibition. 72 Specifically, Amazon asserts Plaintiff
failed to allege any express or implied warrant y attributable to Amazon; failed to allege
that Amazon had actual or constructive knowledge of a defect at the time of sale; and
failed to allege that Amazon was given notice of the defect and an opportunity to repair,
which are prerequisites for rescission agai nst a good-faith, non-manufacturer seller. 73
Accordingly, Amazon maintains Count 4 should be dismissed.74
In opposition, Plaintiff argues she ha s adequately pleaded the elements of a
redhibition claim by alleging the Baseus Powe r Bank contained a defect existing at the
71 R. Doc. 24 at pp. 7-8.
72 R. Doc. 28-1 at pp. 7-11.
73 Id. at pp. 7-11.
74 Id. at p. 13.
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time of sale that rendered the product unfit and dangerous, the defect caused the product
to self-destruct, and she is entitled to economic remedies such as rescission and refund of
the purchase price. 75 Plaintiff contends her allegation that Amazon acted as a seller or
distributor within the chain of distributi on is sufficient at the pleading stage. 76 Plaintiff
further asserts she has plausibly alleged Amaz on acted as a bad-faith seller by having
actual or constructive knowledge of the defect through customer complaints, returns data,
similar incidents, and continued marketing of the product, and that a subsequent
Consumer Product Safety Commission reca ll supports the plausibility of those
allegations.77 Finally, Plaintiff maintains that pre-su it notice and opportunity to repair
should be excused in this case because the Baseus Power Bank was destroyed as a result
of the defect, it posed an immediate safety hazard, and the defect could not feasibly be
cured. She argues the essential elements for redhibition are adequately alleged to survive
a motion to dismiss.78
In reply, Amazon responds that Plaintiff has failed to plead the required elements
of redhibition under the Louisiana Civil Code. 79 Amazon emphasizes that Plaintiff does
not identify any specific express or implie d warranty attributable to Amazon, does not
allege concrete facts showing Amazon had actual or constructive knowledge of a defect at
the time of sale, and does not allege compliance with—or a legally recognized excuse
from—the notice and opportunity-to-repai r requirement applicable to good-faith
sellers.80 Amazon further argues that Plaintiff’s allegations of fraud, bad faith, and
75 R. Doc. 29 at pp. 6-9.
76 Id. at pp. 7-8.
77 Id. at pp. 8-9.
78 Id. at pp. 8-9.
79 R. Doc. 30 at pp. 2-3.
80 Id. at p. 3.
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knowledge are conclusory and unsupported by factual detail, and that a post-sale recall
cannot establish presale knowledge. 81 Because it maintains Plaintiff has not plausibly
alleged the necessary elements for rescission or refund, Amazon maintains the
redhibition claim fails as a matter of law.82
B. Plaintiff’s redhibition claim is plausibly alleged.
Under La. Civ. Code art. 2520, which appears in Chapter 9 of Title VII of Book III
of the Civil Code, provides:
The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient
that it must be presumed that a buyer would not have bought the thing had he
known of the defect. The existence of such a defect gives a buyer the right to obtain
rescission of the sale.
A defect is redhibitory also when, witho ut rendering the thing totally useless, it
diminishes its usefulness or its value so that it must be presumed that a buyer
would still have bought it but for a lesser price. The existence of such a defect limits
the right of a buyer to a reduction of the price.
Further, La. Civ. Code art. 2545, also contained in Chapter 9 of title VII of Book III of the
Civil Code, provides:
A seller who knows that the thing he sells ha s a defect but omits to declare it, or a
seller who declares that the thing has a qual ity that he knows it does not have, is
liable to the buyer for the return of the price with interest from the time it was paid,
for the reimbursement of the reasonable expenses occasioned by the sale and those
incurred for the preservation of the thin g, and also for damages and reasonable
attorney fees. If the use made of the thing, or the fruits it might have yielded, were
of some value to the buyer, such a seller may be allowed credit for such use or fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he
is a manufacturer of that thing.
Courts applying the LPLA have concluded “[t]o the extent that ... damage is compensable
81 Id. at pp. 2-3.
82 Id.
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in redhibition, it is no t damage under the [LPLA].” 83 Courts have also concluded that
“generally, economic loss claims by buyers fall under redhibition, and personal injury
claims fall under the LPLA.”84
To assert a claim in redhibition, Plainti ff must plausibly allege that “(1) the seller
sold the thing to [her] and it is either absolutely useless for its intended purpose or its use
is so inconvenient or imperfect that, judged by the reasonable person standard, had [she]
known of the defect, [she] would never have purchased it; (2) the thing contained a non-
apparent defect at the time of sale; and (3) the seller was given an opportunity to repair
the defect.”85 However, under La. Civ. Code art. 2522, the third element—opportunity to
repair—need not be alleged if Plaintiff plausibly alleges Amazon was in bad-faith because
it had knowledge of the defect or the product has been destroyed.86
Applying these principles, the Court concl udes that Plaintiff has plausibly alleged
a claim for redhibition. Plaintiff alleges the Baseus Power Bank spontaneously ignited in
her vehicle only days after pu rchase, destroying the product and rendering it unfit and
dangerous for its intended purpose as a portable charger.87 Accepting these allegations as
true and drawing reasonable inferences in Plaintiff’s favor, the complaint plausibly alleges
a defect existed at the time of sale rend ering the product so useless, unsafe, and
inconvenient that a reasonable buyer would no t have purchased it had she known of the
defect. Those allegations are sufficient, at the pleading stage, to satisfy the redhibitiory
defect and the “would-not-have-bought” elements of redhibition.
Amazon’s contention that Plaintiff has fa iled to identify a specific warranty
83 Safeco Ins. Co. of Am. V. Chrysler Corp., 834 So.2d 1026, 1046 (La. App. 3 Cir. 2002).
84 TruSouth Oil, LLC v. Burlington Ins. Co., 2012 WL 4483465, at *5 (W.D. La. 2012).
85 Johnson v. CHL Enters., 115 F. Supp. 2d 723, 728 (W.D. La. 2000).
86 La. Civ. Code art. 2522.
87 R. Doc. 24 at pp. 7-8.
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attributable to Amazon is not persuasive in th is context. Redhibition is grounded in the
Civil Code’s provision of an implied warranty against redhibitory defects; Plaintiff is not
required to plead particularized warranty language. Amazon argues its lack of knowledge
concerning the redhibitory defect warrants dismi ssal at this early stage. Plaintiff alleges
that “Amazon had constructive and actual know ledge of the defect before the sale yet
failed to remove the listing, warn purchase rs, or stop fulfillment from its warehouses.” 88
Plaintiff further alleges that Amazon maintained and had access to product returns data,
customer complaints, and similar incident in formation reflecting overheating and fire
risk.89 Plaintiff also alleges that Amazon conti nued to market and fulfill orders for the
product notwithstanding this information, and that a subsequent CPSC recall confirmed
that the type of charger at issue presented a fire hazard. 90 These pleaded facts are
sufficient at the motion to dismiss stage to support a reasonable inference that Amazon
had constructive and/or actual knowledge of a redhibitory defect.
Amazon also argues that Plaintiff’s claim fails because she did not plead that
Amazon was given notice of the defect and an opportunity to repair before suit, or a
recognized excuse from those requirements. Plaintiff, however, alleges that Amazon had
constructive and/or actual knowledge of the pr esence of a defect derived from customer
complaints, safety notices, and product-retu rn data concerning the Baseus Power Bank.
As noted above, La. Civ. Code art. 2522 excuses the opportunity to repair requirement
when the seller is alleged to have knowledge of the defect. 91 Plaintiff’s allegations that
Amazon had constructive and/or actual knowledge of the redhibitory defect excuse the
88 Id. at p. 2.
89 Id. at pp. 2-3.
90 Id.
91 La. Civ. Code art. 2522.
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need to plead pre-suit notice and opportunity to repair.
Moreover, Plaintiff alleges the defect in the Baseus Power Bank manifested in a
sudden fire that destroyed the battery and created an immediate safety hazard to Plaintiff
and her minor children. 92 At this stage, those allegation s plausibly support an inference
that pre-suit repair was impracticable or futile and the product’s destruction and
dangerous condition independently excused strict compliance with the notice and
opportunity to cure requirements applicable to good-faith sellers.93
Finally, Amazon argues that, to the exte nt Plaintiff “seeks recovery for personal
injury or other damages arising from the battery pack, that claim is subsumed and barred
by the LPLA.” 94 Plaintiff does not seek damages fo r personal injury under Count 4.
Instead, she acknowledges her personal injury damages must be pursued under the
LPLA.95 Plaintiff alleges that “[b]ecause Defend ants failed to disclose the defect and
continued selling the product, Pl aintiff is entitled to: a. Resc ission of the sale; b. Refund
of the purchase price; c. Compensatory damages for all resulting harm; and d. Reasonable
attorneys’ fees and litigation costs pursuant to La. C.C. [a]rt. 2545.” 96 Because Plaintiff
alleges that Amazon had knowledge of the de fect, she may seek “the return of the price
with interest from the time it was paid, for the reimbursement of the reasonable expenses
occasioned by the sale and thos e incurred for the preservation of the thing, and also for
damages and reasonable attorney fees.” 97 At this stage, the Court will not preclude
92 R. Doc. 24 at pp. 2-3.
93 Molbert Brothers Poultry & Egg Co., Inc. v. Montgomery, 261 So.2d 311 (La. App. 3 Cir. 1972).
94 R. Doc. 28-1 at p. 7.
95 R. Doc. 29 at p. 7.
96 R. Doc. 24 at p. 8.
97 La. Civ. Code. art. 2545.
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Plaintiff from seeking damages potentially available under Civil Code art. 2545.98
Accordingly, taking the factual allegations as true and drawing all reasonable
inferences in Plaintiff’s favor, the Court finds that Plaintiff has stated a plausible claim for
redhibition against Amazon. Amazon’s motion to dismiss Count 4 will be denied.
VI. Defendant’s Motion to Dismiss Counts 5 and 6 will be denied as moot
because these counts do not set forth causes of action.
The Defendant seeks to dismiss Plaintiff’ s Count 5 – Negligence Per Se Based on
Consumer Product Safety Act (15 U.S.C. § 2064(b) et seq.) – and Count 6 – Deceptive and
Unfair Trade Practices (Predicate for Fraud). Defendant argues Plaintiff has
acknowledged in her Second Amended Complaint that she is not bringing claims against
Amazon under these counts but is merely alluding to violations of these acts “as evidence
supporting” Amazon’s liability. 99 In her opposition to the mo tion to dismiss, Plaintiff
acknowledges the CPSA and FTC Act do not provide private rights of action for damages
but argues violations of these acts may be “evidence of Amazon’s duty, breach, knowledge,
and bad faith in support of Louisiana negligence, LPLA, redhibition, and fraud-based
theories.”100 Because Counts 5 and 6 do not set forth causes of action, Defendant’s motion
to dismiss Counts 5 and 6 will be denied as moot.
VII. Defendant’s Motion to Dismiss Count 7 – Magnuson Moss Warranty
Act (15 U.S.C. § 2301 et seq.) will be denied.
Defendant’s motion to dismiss Count 7 is ba sed solely on its argument that Plaintiff
98 The seller who knows the vice of the thing that he sells and omits to declare it is answerable to the buyer
in damages. In addition to restitution of the pu rchase price and repaymen t of expenses, including
reasonable attorney's fees, the bad faith seller is answ erable for other damages. La. Civ. Code art. 2545.
Under the proper circumstances, those damages can include nonpecuniary damages for mental anguish,
aggravation, and inconvenience. Landaiche v. Supreme Chevrolet, Inc. , 602 So.2d 1127, 1132 (La. App. 1
Cir. 1992).
99 R. Doc. 28-1.
100 R. Doc. 29 at p. 11.
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has failed to adequately allege a Louisiana redhibition claim. 101 Because the Court will
deny Defendant’s motion to dismiss Count Four, the Court also will deny Defendant’s
motion to dismiss Count 7.
CONCLUSION
Accordingly,
IT IS ORDERED that Amazon’s motion to dismiss is DENIED as to Counts 4
and 7.
IT IS FURTHER ORDERED that Amazon’s motion to dismiss is GRANTED
as to Counts 2 and 3 and those counts are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Amazon’s motion to dismiss is DENIED AS
MOOT as to Counts 5 and 6.
102
New Orleans, Louisiana, this 9th day of April, 2026.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
101 R. Doc. 28-1 at p. 11.
102 To the extent Plaintiff does make any claim for damages under these statutes, those causes of action are
dismissed.
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