Tieszen v. EBay, Inc. et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RYAN TIESZEN
Plaintiff,
vs.
EBAY, INC., LG CHEM LTD., VAPAH,
INC., and FIRST DOE through
THIRTIETH DOE,
Defendants.
4:21-cv-04002-KES
ORDER DENYING
DEFENDANTS’ MOTION TO
DISMISS AND MOTION TO
STAY PROCEEDINGS
Defendant eBay, Inc. moves to dismiss co-defendant LG Chem LTD.’s
crossclaim on the basis that the complaint fails to state a claim upon which
relief can be granted. Docket 71; see Fed. R. Civ. P. 12(b)(6). Alternatively, eBay
moves this court to stay the action pending arbitration of Tieszen’s claims
against eBay. Docket 72 at 12. For the following reasons, the court denies
eBay’s motion to dismiss and alternative motion to stay proceedings.
FACTUAL BACKGROUND
This case arises out of plaintiff, Ryan Tieszen’s, purchase of two LG
lithium-ion batteries from a third-party seller, Vapah, Inc., over eBay’s online
marketplace. Docket 1-1 ¶¶ 2, 11. Tieszen sustained injuries after the batteries
allegedly “burst into flames” while in his pocket. Id. ¶ 12. Tieszen subsequently
filed suit in the State of South Dakota Second Circuit Court for Minnehaha
County. Docket 1-1. Tieszen alleged products liability, negligence, and breach
of express and implied warranties against defendants eBay, LG Chem, Vapah,
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LG Chem America, Inc. (LGCAI) and unnamed Doe defendants. Docket 1-1 	¶¶
33-110. LGCAI removed the case to federal court under 28 U.S.C. §§ 1332,
1441(b), and 1446. Docket 1. LGCAI was later dismissed from the case for lack
of personal jurisdiction. Docket 47.
Pursuant to an agreement to arbitrate in the eBay user agreement, eBay
moved to compel arbitration. Docket 17. This court granted eBay’s motion to
compel arbitration and stayed Tieszen’s claims against eBay. Docket 52 at 15.
LG Chem also moved to dismiss Tieszen’s claim for lack of personal
jurisdiction. Docket 29. This court denied that motion and its motion for
reconsideration, but granted its motion for certification of an interlocutory
appeal. Docket 55. The United States Court of Appeals for the Eighth Circuit,
however, denied LG Chem’s petition for permission to appeal. Docket 57;
Docket 59. LG Chem then filed an answer to Tieszen’s complaint in which it
also asserted a crossclaim for indemnity and contribution against all co-
defendants. Docket 66 at 32-33. On April 21, 2022, eBay filed a motion to
dismiss LG Chem’s crossclaim, or in the alternative, stay proceedings pending
arbitration of Tieszen’s claims against it. Docket 71. On May 12, 2022, LG
Chem filed an amended crossclaim as a matter of right. Docket 73; see Fed. R.
Civ. P. 15(a)(1)(B).
DISCUSSION
When an amended crossclaim is filed, it supersedes the original
crossclaim, meaning the original crossclaim no longer has any legal effect. See
Thomas v. United Steelworkers Loc. 1938, 743 F.3d 1134, 1139 (8th Cir. 2014).
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As a result, a motion to dismiss the original crossclaim is moot after an
amended crossclaim is filed. Pure Country, Inc. v. Sigma Chi Fraternity, 312
F.3d 952, 956 (8th Cir. 2002); see also Onyiah v. St. Cloud State Univ., 655 F.
Supp. 2d 948, 958 (D. Minn. 2009) (“[A]s a general proposition, if a defendant
files a Motion to Dismiss, and the plaintiff later files an Amended Complaint,
the amended pleading renders the defendant’s Motion to Dismiss moot.”). Here,
within 21-days of eBay’s motion to dismiss, LG Chem filed an amended
crossclaim as a matter of right omitting eBay as a third-party defendant.
Docket 73; see Fed. R. Civ. P. 15(a)(1)(B). The only difference between the
amended pleading and the original is the omission of eBay as a third-party
defendant in LG Chem’s crossclaim in the amended pleading. Docket 73;
Docket 66. Thus, eBay’s motion to dismiss or, alternatively, stay proceedings
(Docket 71), is denied as moot. It is
ORDERED that eBay’s motion to dismiss, or alternatively to stay
proceedings (Docket 71), is denied as moot.
Dated July 21, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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