Because we all love wacky pro se suits: Ward v. Arm & Hammer

by Ted Frank on December 18, 2006

Via the District of New Jersey, please find attached the order dismissing the case in Ward v. Arm & Hammer [sic], 341 F.Supp.2d 499 (2004): no, a baking soda manufacturer has no legal duty to warn users that using baking soda to cook crack cocaine is illegal. (See David Lat’s blog for the complaint.)

We can still find something to complain about, though: the district court has the power under 28 U.S.C. § 1915 to dismiss the case sua sponte as frivolous, which this case was in even the most narrow and technical senses of the word, or even just to dismiss the case for failure to state a claim without waiting for briefing. Church & Dwight Co., the makers of Arm & Hammer, was forced to retain Morgan, Lewis & Bockius to file multiple briefs in the federal court at not inconsiderable expense to rid itself of this nuisance suit.

More on product liability, including many successful cases not much less wacky than this one, on our product liability page.

Update: The post originally protested the granting of in forma pauperis status; David Giacalone correctly points out in the comments that IFP status is automatic without a showing of bad faith, and that my complaint was with the failure of the court to exercise its sua sponte powers to dismiss. I’ve corrected the post accordingly.

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1 Seth 12.18.06 at 2:47 pm

While I agree that this definitely meets the criteria for “wacky pro se suits”, the claim does make for fairly interesting commentary on mandatory sentencing guidelines for crack vis-a-vis powdered cocaine.

2 John 12.18.06 at 4:48 pm

So, under loser pays should we pass the bill from Morgan, Lewis, and Bockius to the Deparment of Corrections?

[There's no reason a court can't stem a suit like this by refusing to issue a summons and dismissing the case before MLB bills a minute. -- TF]

3 Anon 12.18.06 at 5:00 pm

Is it me, or is it a little weird that the judge didn’t feel the need to mention which state’s law he was applying? The Third Circuit decision he cites was apparently applying New Jersey and New York law. But my guess is that the alleged harm here occurred in Virginia. Of course the claim probably would not have prevailed under Virginia law either, but doesn’t it seem odd that the judge purports to decide the case by adhering to a precedent from what is probably the wrong state — without even noting that he was doing so?

4 David Giacalone 12.18.06 at 7:21 pm

Ted, Like you, I’m sorry to see that such a silly suit has wasted so many resources. Nonetheless, I’m wondering about your citation to 28 U.S.C. § 1915. If the trial court has not certified that the appeal is not in good faith, frivolousness is not a reason to refuse in forma pauperis status, unless the prisoner has “(g) . . . on 3 or more prior occasions. . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” Does Ward fit that exception?

[The relevant provision is 28 U.S.C. § 1915(e)(2)(B)(i), not (g): “[T]he court shall dismiss the case at any time if the court determines that the action or appeal is frivolous”. Subsection (B)(ii) also permits a court to dismiss sua sponte if the plaintiff has failed to state a claim. — TF]

5 David Giacalone 12.18.06 at 7:43 pm

Ted, That section seems to refer to the appellate court itself making the frivolousness finding — and (this being the U.S.A.) that has to occur after it grants pauper status and allows the case to be filed. I think the “bad faith” exception exists in Subsection (a)(3) to give the trial court the opportunity to shortcircuit the in forma pauperis request. Otherwise, the “three prior times” rule looks like the only way to achieve an automatic rejection of the pauper status.

6 Ted Frank 12.18.06 at 7:52 pm

David, you’re correct that my complaint is not about the IFP status so much as the failure of the district court to dismiss under (e)(2) (or to certify bad faith under (a)(3)).

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