537.762. Motion to dismiss, defendant whose only liability is as seller in stream of commerce requirements, procedure — order of dismissal to be interlocutory. — 1. A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section.
2. This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff's claim.
3. A defendant may move for dismissal under this section within the time for filing an answer or other responsive pleading unless permitted by the court at a later time for good cause shown. The motion shall be accompanied by an affidavit which shall be made under oath and shall state that the defendant is aware of no facts or circumstances upon which a verdict might be reached against him, other than his status as a seller in the stream of commerce.
4. The parties shall have sixty days in which to conduct discovery on the issues raised in the motion and affidavit. The court for good cause shown, may extend the time for discovery, and may enter a protective order pursuant to the rules of civil procedure regarding the scope of discovery on other issues.
5. Any party may move for a hearing on a motion to dismiss under this section. If the requirements of subsections 2 and 3 of this section are met, and no party comes forward at such a hearing with evidence of facts which would render the defendant seeking dismissal under this section liable on some basis other than his status as a seller in the stream of commerce, the court shall dismiss without prejudice the claim as to that defendant.
6. An order of dismissal under this section shall be interlocutory until final disposition of plaintiff's claim by settlement or judgment and may be set aside for good cause shown at anytime prior to such disposition.
Notes of Decisions
Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432 (Mo. 2002).
· cites it 24× “In response to the cross-claim, Green Supply claimed as an affirmative defense that in settling with the Dunns, Gramex acted as a volunteer under section 537.762, RSMo (2000), and thus has no right to indemnity or contribution from Green Supply, an innocent seller.”
Malone v. Schapun, Inc., 965 S.W.2d 177 (Mo. Ct. App. 1998).
· cites it 33× “We reyerse and remand the trial court’s dismissal of the product liability claims in that there was no defendant properly before the court from whom total recovery could have been had as required by section 537.762 RSMo 1994. 1 We affirm the trial court’s grant of summary…”
Davis v. Dunham's Athleisure Corp., 362 F. Supp. 3d 651 (E.D. Mo. 2019).
· cites it 8× “Missouri Courts have explained that Section 537.762"addresses similar concerns" as the Model Uniform Product Liability Act, which "attempts to achieve a balance between protecting non-manufacturers, except from their own negligence or specific guarantees, and protecting an…”
Dorsey v. Sekisui Am. Corp., 79 F. Supp. 2d 1089 (E.D. Mo. 1999).
· cites it 17× “Sekisui contends that CPI is entitled to be dismissed from this action pursuant to Mo.Rev.Stat. § 537.762 (1994) (the "innocent seller statute"), and the joinder is therefore fraudulent because plaintiff cannot assert a legitimate claim against CPI.”
Michael Blaes v. Johnson & Johnson, 858 F.3d 508 (8th Cir. 2017).
· cites it 2× “See Mo. Rev. Stat. § 537.762 . Thereafter, the only remaining defendants were two Johnson & Johnson entities and Imerys Talc America, -11- Inc.”
Magnuson Ex Rel. Mabe v. Kelsey-Hayes Co., 844 S.W.2d 448 (Mo. Ct. App. 1992).
· cites it 4× “1 Chrysler filed a motion to dismiss pursuant to § 537.762, RSMo Supp.1987, which was denied by the trial court.”
Drake v. North Am. Phillips Corp., 204 F. Supp. 2d 1204 (E.D. Mo. 2002).
· cites it 20× “Wal-Mart has moved to dismiss the strict liability claims against it in Counts I and II and invokes Missouri's innocent seller statute, Mo.Rev.Stat. § 537.762. This statute provides as follows: 1.”
Harber v. Altec Indus., Inc., 812 F. Supp. 954 (W.D. Mo. 1993).
· cites it 5× “Mo.Rev.Stat. § 537.762. This reflects a judgment by the legislature that the manufacturer should bear the brunt of the risk whenever possible.”
Latham v. Wal-Mart Stores, Inc., 818 S.W.2d 673 (Mo. Ct. App. 1991).
· cites it 4× “In their brief, appellants claim the trial judge erroneously granted summary judgment based on RSMo § 537.762 (Supp.1988). Appellants claim the Act covers only those claims which accrued after July 1, 1987, while the instant cause of action accrued on February 24, 1987, the date…”
Yount v. Shashek, 472 F. Supp. 2d 1055 (S.D. Ill. 2006).
“762 (providing for automatic dismissal from a products liability action of all defendants other than the manufacturer of a product alleged to be defective and unreasonably dangerous). 6 . Because the Court finds that this case was removable at the time Cottrell was served with…”
LaRoe v. Cassens & Sons, Inc., 472 F. Supp. 2d 1041 (S.D. Ill. 2006).
· cites it 2× “Mo.Rev.Stat. § 537.762. The Pender court found that the statute did not establish fraudulent joinder because “under the substantive law of Missouri [the diversity-defeating defendant] remains potentially ha-ble in this case .”
Block v. Toyota Motor Corp., 665 F.3d 944 (8th Cir. 2011).
“We agree with the district court that the Minnesota statutory seller’s exception does not preclude a finding of fraudulent joinder for joining Brooklyn Park Motors as a defendant in this case. The Missouri statute Block refers to is dissimilar, for it provides that a defendant…”
— Mo. Rev. Stat. § 537.762(2) — 1 case
LaRoe v. Cassens & Sons, Inc., 472 F. Supp. 2d 1041 (S.D. Ill. 2006).
“Mo.Rev.Stat. § 537.762. The Pender court found that the statute did not establish fraudulent joinder because “under the substantive law of Missouri [the diversity-defeating defendant] remains potentially ha-ble in this case .”
— Mo. Rev. Stat. § 537.762(6) — 7 cases
Block v. Toyota Motor Corp., 665 F.3d 944 (8th Cir. 2011).
“We agree with the district court that the Minnesota statutory seller’s exception does not preclude a finding of fraudulent joinder for joining Brooklyn Park Motors as a defendant in this case. The Missouri statute Block refers to is dissimilar, for it provides that a defendant…”
— Mo. Rev. Stat. § 537.762(7) — 2 cases
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