Cohan v. Pella Corp.

CLARA COHAN and SHARON BALZER individuallyand on behalf of all others similarly situated, Plaintiffs, v. PELLA CORPORATION, Defendants.

No. 2:14-mn-00001-DCN

No. 2:14-mn-03704-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

October 26, 2015

ORDER

This matter is before the court on a motion to dismiss brought by defendant Pella Corporation ("Pella"). For the reasons set forth below, the court grants in part and denies in part Pella's motion to dismiss.

I. BACKGROUND

Plaintiffs Clara Cohan and Sharon Balzer (collectively "plaintiffs") purchased Pella windows during the renovation process of their home in Cape Elizabeth, Maine. Compl. ¶ 53. Plaintiffs allege that they went to a Pella location at 242 Gorham Road in South Portland, Maine and spoke with a Pella representative who "assisted them in choosing" the windows, "answered Plaintiffs' questions and touted the features and quality of Pella Windows." Id. Plaintiffs further allege that the Pella sales representative who provided assistance was Peter Dardano and that before they purchased the windows, they "conducted extensive research about Pella Windows, reviewing Pella's website, pamphlets, product brochures and other marketing materials." Id. ¶¶ 54-55. According to the complaint, plaintiffs purchased Architect Series windows from Pella in April 2001 in reliance on the Pella representative's representations. Id. ¶ 57.

In June 2010, plaintiffs noticed that the frame on one of their bedroom windows "rotted and fell apart" and filed a claim under a limited warranty provided at the time of sale. Id. ¶ 61. In August 2010, a Pella representative, referred to as "Dave" in the complaint, went to plaintiffs' home and informed plaintiffs that the window's edges were unpainted, "which allowed water penetration resulting in wood rot." Id. ¶¶ 62-63. Plaintiffs further allege that after inspecting the remaining windows in the home, Dave informed plaintiffs that every casement window contained unpainted edges and that plaintiffs should have painted the edges of the windows during installation "even though Pella sold Plaintiffs factory painted windows." Id. ¶ 64. Dave agreed to replace the bedroom window in exchange for a $95.00 labor charge and "promised to provide Plaintiffs with gaskets for three Windows." Id. ¶ 65. Pella replaced the bedroom window and provided plaintiffs with three replacement gaskets as promised. Id. ¶ 66.

On August 10, 2010, plaintiffs filed a second claim under the limited warranty requesting that Pella paint the edges of the windows. Id. ¶ 67. According to plaintiffs, a Pella representative named "Bill" denied their request and informed them that Pella was "understaffed and did not have the resources necessary to paint the Windows." Id. ¶ 68. "Bill offered to refund the $95.00 labor charge Plaintiffs paid to replace the kitchen Window if Plaintiffs painted the Windows themselves." Id. ¶ 69.¹

Plaintiffs allege that in August 2010, while preparing to paint the windows, they "noticed that the glazing failed in all of the casement Windows, allowing water to penetrate[,]" causing mold, mildew, and other damage to the windows. Id. ¶ 71. Plaintiffs then filed a third warranty claim in September 2010 and "sent a letter viacertified mail to Pella informing it that the glazing had failed and request[ing] that Pella replace all of the casement Windows." Id. ¶ 72. Plaintiffs allege that although Pella received the letter that same month, it never responded to the third warranty claim. Id. ¶ 73. Plaintiffs further allege that in October 2010, they contacted Pella via email informing it of the problems with the casement and requesting replacement but that Pella never responded. Id. ¶¶ 74-75. Plaintiffs allege that in February 2011, they went to a Pella store in South Portland, Maine and spoke with Monica Nieto ("Nieto") who informed plaintiffs "that she was unable to assist them with their warranty claim." Id. ¶ 76. Nieto also said she sent a copy of a letter from plaintiffs to Pella's Service Department via facsimile. Id. ¶¶ 76-78. Plaintiffs allege that Pella never replaced the defective casement windows as requested under the third warranty claim. Id. ¶ 80.

On September 2, 2014, plaintiffs filed a class action complaint against Pella in the United States District Court for the District of Maine, alleging jurisdiction pursuant to the Class Action Fairness Act of 2005 and 28 U.S.C. § 1332(d). Plaintiffs allege that the windows were defective "in that they allowed water penetration, which caused condensation, wood rot, leaks and other failures as described." Id. ¶ 58. Plaintiffs contend that the windows "allowed water to intrude into Plaintiffs [sic] home resulting in other property damage to their home, such as the structure of their home, wall cavity, adjoining finishes and walls and damaged other personal property within the home." Id. ¶ 60. Plaintiffs bring the following causes of action: (1) violation of the Maine Unfair Trade Practices Act ("MUTPA"); (2) negligence; (3) negligent misrepresentation; (4) breach of implied warranty of merchantability; (5) breach of implied warranty of fitness for a particular purpose; (6) breach of express warranty; (7) fraud; (8) fraudulentconcealment; (9) unjust enrichment; (10) violation of Magnuson-Moss Warranty Act ("MMWA"); and (11) declaratory relief pursuant to 28 U.S.C. § 2201.

On September 18, 2014, the United States Judicial Panel on Multidistrict Litigation transferred the present action to this court as part of the consolidated multidistrict ligation. Pella filed the instant motion to dismiss on November 3, 2014. Plaintiffs filed a response in opposition to Pella's motion on November 20, 2014, and Pella replied on December 4, 2014. The motion has been fully briefed and is now ripe for the court's review.

II. STANDARD

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for "failure to state a claim upon which relief can be granted." When considering a Rule 12(b)(6) motion to dismiss, the court must accept the plaintiff's factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, the court's task is limited to determining whether the complaint states a "plausible claim for relief." Id. at 679. Although Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief," "a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quotingTwombly, 550 U.S. at 570). "Facts pled that are 'merely consistent with' liability are not sufficient." A Soc'y Without a Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

B. Applicable Law

This case is predicated on diversity jurisdiction and was filed in federal court, so it is governed by state substantive law and federal procedural law. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 416 (2010) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). "In multidistrict litigation, the law of the transferee circuit governs questions of federal law." In re KBR, Inc., 736 F. Supp. 2d 954, 957 (D. Md. 2010), modified on reh'g sub nom. In re KBR, Inc., Burn Pit Litig., 925 F. Supp. 2d 752 (D. Md. 2013), vacated and remanded on other grounds, 744 F.3d 326 (4th Cir. 2014); see In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir. 2004); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987); cf. Bradley v. United States, 161 F.3d 777, 782 n.4 (4th Cir. 1998) (applying Fourth Circuit law to questions of federal law in a case transferred from the Fifth Circuit). Therefore, this court must apply Maine substantive law and Fourth Circuit procedural law.

III. DISCUSSION

Pella asserts that plaintiffs' complaint should be dismissed in its entirety. The court will first determine whether the applicable statutes of limitation are tolled by equitable tolling or equitable estoppel. The court will then consider Pella's arguments regarding each claim individually.

A. Tolling

Pella argues that some of plaintiffs' claims are barred by their respective statutes of limitation. While the specific statutes of limitation applicable to those claims will be discussed below, the parties disagree about the application of two tolling doctrines to the statutes of limitation: equitable tolling/fraudulent concealment and class action tolling. The court will consider these doctrines in turn.

1. Fraudulent Concealment

Plaintiffs first argue that the applicable statute of limitations is set forth in 14 M.R.S.A. § 859 and not 14 M.R.S.A. § 752 because they allege that Pella fraudulently concealed the window defect. Pls.' Resp. 15-16. In response, Pella argues that plaintiffs have failed to plead sufficient facts to allege fraudulent concealment and that plaintiffs do not allege that they have a fiduciary relationship with Pella. Therefore, Pella argues that plaintiffs have not adequately pleaded that Pella concealed a cause of action from them within the meaning of 14 M.R.S. § 859. Def.'s Reply 1-2.

Under Maine law, an action that is fraudulently concealed by the defendant is timely if it is commenced within six years after the person entitled to bring suit discovers the claim. 14 M.R.S.A. § 859. "To establish a claim of fraudulent concealment, the plaintiff must show: '(1) that defendants...