Fraiser v. Stanley Black & Decker, Inc.

109 F.Supp.3d 498

Tawanna FRAISER, on behalf of herself and all others similarly situated, Plaintiff,

v.STANLEY BLACK & DECKER, INC., Defendant.

Civil Action No. 12–1182–WGY.

United States District Court, D. Connecticut.

Signed June 9, 2015.

Filed June 15, 2015.

Andrei V. Rado, Jennifer S. Czeisler, Johnathan P. Seredynski, Sanford P. Dumain, Milberg LLP, New York, NY, for Plaintiff.

David L. Belt, David A. Slossberg, Hurwitz Sagarin Slossberg & Knuff LLC, Milford, CT, Diana Gjonaj, Milberg LLP, Detroit, MI, David L. Young, William E. Manske, Barnes & Thornburg, Minneapolis, MN, Jeffrey L. Ment, Morris R. Borea, Rome McGuigan, P.C., Hartford, CT, Mark P. Miller, Barnes & Thornburg LLP, Chicago, IL, for Defendant.

REPORT

YOUNG, District Judge.¹

I. INTRODUCTION

This matter is back before this Court upon remand from the United States Court of Appeals for the Second Circuit "for clarification and for a proper explanation" of this Court's ore tenus order striking the Plaintiff's class action allegations and dismissing the complaint for lack of subject matter jurisdiction. Mandate U.S.Ct. Appeals, Jan. 15, 2015 ("2d Cir. Mandate") 4, ECF No. 68.

II. BACKGROUND AND PRIOR PROCEEDINGS

On August 13, 2012, Tawanna Fraiser ("Fraiser") filed a complaint against Stanley Black & Decker, Inc. ("Black & Decker") alleging that Black & Decker markets and sells numerous models of electronic pest control devices ("Pest Control Devices") which do not perform as advertised because they do not "repel pests." Class Action Compl. ("Compl.") ¶¶ 3–5, ECF No. 1. Fraiser alleges that she bought one of these Pest Control Devices and was damaged because she did not get a product that repelled pests, which was what she had paid for. Id. ¶ 6.

Fraiser claims that Black & Decker's actions were a breach of express warranties under Connecticut common law and that its marketing and sales were designed to mislead and deceive consumers, constituting a violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.Stat. § 42–110a et seq., the Connecticut Unfair Sale Practices Act ("CUSPA"), Conn. Gen.Stat. § 42–115e et seq., and the Magnuson–Moss Warranty Act, 15 U.S.C. § 2301 et seq. Compl. II 28–41, 50–58. Fraiser asserts these claims individually and as a class action on behalf of herself and all others similarly situated. Id. ¶ 1.

In her complaint, Fraiser points to two ways in which this Court could exercise subject matter jurisdiction over the case. First, she claims that the court has diversity jurisdiction over the class state law claims under the Class Action Fairness Act, 28 U.S.C. § 1332(d), which grants federal jurisdiction over class actions with more than 100 members (one of whom is diverse from the defendant) and more than $5,000,000 in claimed damages. Id. ¶ 12. Second, she claims that the court has federal question jurisdiction because she raises a claim under the Magnuson–Moss Act. Id. She does not allege that the Court has subject matter jurisdiction over her individual claims raised under state law. See id.

On November 1, 2012, Black & Decker moved to strike Fraiser's class action allegations and to dismiss the complaint. Mot. Dismiss & Strike Pl. Tawanna Fraiser's Class Allegations, ECF No. 30. Black & Decker simultaneously filed a memorandum of law in support of its motion. Mem. Law Supp. Mot. Dismiss & Strike Pl. Tawanna Fraiser's Class Allegations ("Black & Decker's Mem."), ECF No. 30–1. On December 14, 2012, Fraiser filed a brief in opposition to Black & Decker's motion. Pl.'s Mem. Law. Opp'n Def.'s Mot. Dismiss & Strike Class Allegations ("Fraiser's Opp'n"), ECF No. 38. On January 10, 2013, this case was reassigned to me as a visiting judge from the District of Massachusetts. Order Transfer, ECF No. 41. Black & Decker filed a brief replying to Fraiser's opposition on January 11, 2013. Reply Mem. Law Supp. Mot. Dismiss & Strike Pl. Tawanna Fraiser's Class Allegations ("Black & Decker's Reply"), ECF No. 42.

On October 4, 2013, this Court held a motion hearing via video conference and entered an order granting Black & Decker's motion. Min. Entry, ECF No. 57. This Court also granted Fraiser ten days to file any additional reply brief citing cases and determined that if the ruling were to remain the same after this Court reviewed this briefing, an order of dismissal would be entered. Id.

On October 15, 2013, Fraiser filed a motion for reconsideration of this order, along with a supporting memorandum. Pl.'s Mot. Recons. Dismissal, ECF No. 58; Mem. Law Supp. Mot. Recons. Oct. 4, 2013 Oral Ruling Dismissing This Action ("Fraiser's Mem. Recons."), ECF No. 59. Black & Decker filed an opposition to Fraiser' motion for reconsideration on October 25, 2013. Def.'s Opp'n Pl.'s Mot. Recons. Oct. 4, 2013 Oral Ruling Dismissing This Action ("Black & Decker's Opp'n Recons."), ECF No. 60. On November 15, 2013, this Court denied Fraiser's motion for reconsideration. Order Den. Pl.'s Mot. Recons., ECF No. 62. On January 16, 2014, this Court entered an Order of Dismissal and Judgment in favor of Black & Decker. Order Dismissal, ECF No. 63; J., ECF No. 64.

On January 27, 2014, Fraiser appealed this Court's judgment to the Second Circuit. Notice Appeal, ECF No. 65. On January 15, 2015, the Second Circuit vacated this Court's judgment and remanded the case for further proceedings.2d Cir. Mandate 2.

III. FACTS OF RECORD

Fraiser is a consumer residing in Philadelphia, Pennsylvania. Compl. ¶ 11. In December 2010, Fraiser purchased a package of four Black & Decker Model EW411–4p ultrasonic pest repellers for $28.00 at a Pennsylvania Home Depot store. Id. Fraiser had read the label on the package, which stated that the product "[d]rive[s] out Mice, Cockroaches, Spiders," and other pests. Id. ¶¶ 11, 14. Fraiser specifically sought to repel mice from her home. She plugged each device in different rooms in her house and now alleges that, after approximately one year of use, the four devices "had no effect on the number of mice in her home." Id. ¶ 11. Fraiser kept the devices plugged in until the winter of 2011 and eventually hired a professional exterminator to deal with her mouse problem. Id. Fraiser claims that she was damaged, in an amount to be determined at trial, because she did not get a product that repelled pests, which was what she had paid for. Id. ¶ 6.

Black & Decker is a Connecticut corporation with its corporate offices located in New Britain, Connecticut. Id. ¶ 12. Various models of Pest Control Devices with the trade name "Black & Decker"² are marketed and sold online and at numerous retail stores nationwide; the models include (but are not limited to) the EW411–4p, EX310, EX900–A, EP321, EP1100–A, EX410, and EX420. Id. ¶ 13. The packaging for each of these models contains some variation on the statement that the device "generates powerful ultrasonic signals that repel pests from your home or office." See id. ¶¶ 14(a)-(f). Fraiser alleges that "no credible, scientific evidence shows that electronic pest repellents work in ridding homes of pests" and cites various studies that purportedly support this claim. Id. ¶¶ 15(a)-(c). In particular, Fraiser points to a May 3, 2001, Federal Trade Commission press release stating that the agency "had sent warning letters to the more than 60 manufacturers of ultrasonic pest control devices, concluding that any reaction by rodents to ultrasound would be temporary at best." Id. ¶ 17. According to the press release, "[t]he warning letters urged manufacturers and retailers of ultrasonic pest-control devices to examine their advertising and ensure they have competent and reliable scientific evidence to support claims that a product eliminates or repels certain pests." Id.

Fraiser alleges that, consistent with her own personal experience with the EW411–4p and the available scientific evidence, none of the other models listed above repel pests. See id. ¶¶ 13, 15, 18. Fraiser also claims that "[u]pon information and belief, the deceptive marketing of Defendant's Pest Control Devices was conceived at, and emanated from, Defendant's corporate headquarters located in Connecticut."Id. ¶ 12. Accordingly, Fraiser asserts that Black & Decker's actions were a breach of express warranties under Connecticut common law. Id. ¶¶ 42–49.

Fraiser further alleges that Black & Decker's marketing and sales were designed to mislead and deceive consumers and therefore constitute a violation of CUTPA, id. ¶¶ 28–37, CUSPA, id. ¶¶ 38–41, and the Magnuson–Moss Warranty Act, id. ¶¶ 50–58. Fraiser asserts the above claims individually and as a class action on behalf of herself and all others similarly situated, id. ¶¶ 1–2, with the class consisting of:

All persons in the United States who have purchased Black & Decker Pest Control Devices, Including but not limited to models EW411–4p; Ex–310; EX– 900A; EP321; EP–1100A; EX 410; EX 420., from August 13, 2009 to the present.

Id. ¶ 19.

IV. ANALYSIS

A. Standards of Review

1. Motions to Dismiss Under Rule 12(b)(6)

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) :

[T]he court takes the allegations of the Complaint as true and construes them in a manner favorable to the plaintiff. See, e.g., Hoover v. Ronwin, 466 U.S. 558, 587, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984) ; Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir.2002). The court must draw all reasonable inferences in the plaintiff's favor. See, e.g., Yung v. Lee, 432 F.3d 142, 146 (2d Cir.2005). A motion to dismiss for failure to state a claim tests only the adequacy of the Complaint. See United States v. City of New York, 359 F.3d 83, 87 (2d Cir.2004).

Eslin v. Hous. Auth. of the Town of Mansfield, No. 3:11–CV–134 (JCH), 2012 WL 3090976, at *2 (D.Conn. July 12, 2012) (Hall, J.). To survive a motion to dismiss, a complaint must contain factual allegations that transcend "labels and conclusions" and that "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167...