BENTON – Retailer eBay got out of a potential class action before it got in.
Christopher Cueto of Belleville, representing Amanda Chandler and Robert Durham of Collinsville, filed notice of voluntary dismissal on April 15.
“The defendant, eBay, Inc., has not filed an answer or a motion for summary judgment or even an entry of appearance by an attorney,” Cueto wrote in dismissing eBay.
Chandler and Durham sued mattress maker Zinus and retailers Amazon, eBay, Target, and Wayfair at U.S. district court on March 12.
Cueto filed the complaint in association with James Radcliffe and Lloyd M. Cueto of Belleville and William Daniel of East St. Louis.
They claimed glass fibers exit Zinus mattresses when the outer cover is unzipped.
“Given how widely people in our society use zippers, attaching one to an object invites opening that object,” Cueto wrote.
Chandler washed an outer cover with clothes on Jan. 27, according to the complaint, and her two sons jumped on the bare mattress.
Durham awoke with extreme itching the next day, Cueto wrote, and the boys screamed and cried.
He wrote that several shards were surgically removed from Durham’s neck.
He found it likely that each family member inhaled fibers.
He claimed Zinus could have designed an outer cover without a zipper and the mattress tag should have warned users not to wash it.
He proposed to certify five nationwide classes.
One would allege consumer fraud, two would allege injuries to adults and minors, and two would allege damage to property and real estate.
U.S. Magistrate Judge Reona Daly declared the eBay dismissal notice defective on April 16, finding Cueto used a rule that applies to entire cases.
She directed him to amend the complaint by May 15.
Zinus has retained five lawyers.
Zachary Merkle and Natalie Kussart of Sandberg Phoenix in St. Louis entered appearances on April 15.
Emily Dillingham of Chicago, Robert Katerberg of Washington, and James Lee of San Francisco entered appearances on April 17.
As of that date, no one had appeared for Amazon, Target, or Wayfair.