Lisk v. Lumber One Wood Preserving, LLC

993 F.Supp.2d 1376

Robert C. LISK, Individually and on behalf of a Class of Similarly Situated Persons, Plaintiff,

v.LUMBER ONE WOOD PRESERVING, LLC, Defendant.

Civil Action No. 3:13–cv–01402–AKK.

United States District Court,

N.D. Alabama,

Northwestern Division.

Jan. 8, 2014.

F. Jerome Tapley, Hirlye Ray Lutz, III, Cory Watson Crowder & Degaris P.C., Birmingham, AL, for Plaintiff.

Michael M. Shipper, Davis & Fields P.C., Mobile, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

ABDUL K. KALLON, District Judge.

Robert C. Lisk (Lisk) brings this action, individually and on behalf of a class of similarly situated persons, against Lumber One Wood Preserving, LLC (Lumber One) for alleged breach of express warranty and violation of the Alabama Deceptive Trade Practices Act (ADTPA), Ala.Code §§ 8–19–1 et seq. Doc. 1. Lisk alleges that Lumber One falsely represented that it manufactured and distributed lumber that it purportedly treated to resist decay. Lumber One moves to dismiss the complaint, doc. 11, and the motion is fully briefed, docs. 12, 18, and 20, and ripe for review. For the reasons stated more fully below, as related to the breach of express warranty and ADTPA class claims, the motion is GRANTED.

I. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are insufficient. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotation marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (citing Bell Atl. Corp., 550 U.S. at 557, 127 S.Ct. 1955).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. “To survive a motion to dismiss, a 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, 129 S.Ct. 1937 (citations omitted) (internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell Atl. Corp., 550 U.S. at 555, 127 S.Ct. 1955 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

II. FACTUAL BACKGROUND

In July 2010, Lisk entered into a contract for $3,248.16 with Clean Cut Fence Company (Clean Cut), for the purchase and installation of a fence at his home. Doc. 1 at 2. The contract called for Clean Cut to use 300 feet of Micronized Copper Azole (MCA) pressure-treated lumber, and stated that “[a]ll fencing materials shall be warranted only through their respective manufacturers.” Id. Clean Cut purchased the necessary lumber from Capitol Wholesale Fence Company (Capitol Wholesale), id., which had purchased it wholesale from Lumber One, id. at 6, and installed the fence on Lisk's property, id. at 2.

At the time relevant to this lawsuit, Lumber One's website, advertising, and product labeling stated that Lumber One treated its lumber with MCA technology licensed by Osmose, Inc. (Osmose). Id. at 3. According to Osmose, lumber treated with its MCA pressure treatment technology is approved for end-consumer uses that include fence posts, docks, decking, joists, beams, sills, building poles, and permanent wood foundations. Id. Osmose also claims that lumber treated with its MCA pressure treatment technology is designed to remain free from rot, fungal decay, and termite attacks for a minimum of fifteen to thirty years following installation. Id.

Three years after he had the fence installed, Lisk hired an electrician to wire it for electricity. Id. During his inspection of the fence, the electrician observed that the fence posts were rotten and failing. Id. Lisk contacted Clean Cut, which made the same determination and informed Lisk that his only recourse was to replace the fence. Id. Clean Cut also informed Lisk that many other consumers had experienced problems caused by Lumber One's wood rotting prematurely, but that Lumber One refused to take responsibility for the defective lumber. Id.

III. ANALYSIS

Lisk alleges claims of breach of an express warranty and a violation of the ADTPA on behalf of himself and others similarly situated.

A. Lisk's Express Warranty Claim

Lumber One challenges Lisk's express warranty claim on three separate grounds, which the court will consider in turn.

1. No written express warranty statement.

Lumber One first challenges Lisk's express warranty claim by arguing that “Lisk's complaint does not adequately allege (and Lisk cannot prove) the existence of a specific written warranty statement from Lumber One to Lisk.” Doc. 12 at 6. By looking for a direct agreement between Lisk and itself, Lumber One misconstrues Alabama law and Lisk's express warranty claim. Lisk does not argue that he made an agreement with Lumber One. Rather, he argues that Lumber One made an express warranty to Capitol Wholesale, and that he was an intended third-party beneficiary of the warranty. Doc. 1 at 6–7. More to the point, Alabama law does not require a “specific written warranty statement” in order for a seller to be bound by an express warranty. SeeAla.Code. § 7–2–313(1)(a) (“Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.”). In his complaint, Lisk alleges that “Lumber One's website, advertising, and product labeling represented that its treated lumber was pressure treated using MCA technology licensed by Osmose Inc.” Doc. 1 at 3. That allegation is sufficient, at least at the pleading stage, to support a claim that Lumber One made an “affirmation of fact” that it was selling Osmose MCA pressure-treated lumber, or, alternatively, described its lumber as such, ¹ and that affirmation of fact or description became part of the basis of the bargain between Lumber One and Capitol Wholesale, namely that it led Capitol Wholesale to believe the lumber it purchased was Osmose MCA pressure-treated lumber. Such a conclusion is consistent with Alabama law. See Gable v. Boles, 718 So.2d 68, 71 (Ala.Civ.App.1998) (finding that a seller's “statement that [a] boat had been winterized” was a statement of fact giving rise to an express warranty).

2. No privity.

Next, Lumber One argues that Lisk's express warranty claim fails because “Lisk, a remote buyer, does not allege and cannot demonstrate privity with Lumber One.” Doc. 12 at 7. This argument also misses the mark. “In Alabama, a vertical nonprivity purchaser ² who has suffered only direct or consequential economic loss cannot recover from a remote manufacturer under an implied warranty theory. However, privity rules have been applied less restrictively to express as opposed to implied warranties.” Harris Moran Seed Co., Inc. v. Phillips, 949 So.2d 916, 922 (Ala.Civ.App.2006) (emphasis in original) (citations omitted) (internal quotation marks omitted). The drafters of the Alabama Code's provisions governing express warranties explicitly contemplated the possibility of an express warranty creating liability to a third party:

Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined ... to the direct parties to such a contract.... The provisions of Section 7–2–318 ³ on third party beneficiaries expressly recognize this case law development within one particular area. Beyond that, the matter is left to the case law....

Official Comment, Ala.Code § 7–2–313 (emphasis added). Consequently, the court must look to Alabama case law to determine whether Lisk's lack of privity with Lumber One bars him from making an express warranty claim.

The delineation of third parties' rights as they relate to express warranties is a thinly developed area in Alabama jurisprudence. The Alabama Supreme Court has indicated that a vertical nonprivity purchaser who suffered purely economic harm might be able to recover from a manufacturer under a breach-of-express-warranty theory, but has not directly addressed the issue. See Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So.2d 1013, 1018–19 (Ala.2002) (refusing to allow a third party buyer to sue an original seller for breach of an express warranty because “a party claiming to be a third-party beneficiary of a contract must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party,” and the third party buyer failed to make such a showing). The Alabama Court of Civil Appeals, however, squarely dealt with such a claim in Harris Moran. In that case, farmers sued a seed manufacturer for selling seeds that it claimed grew “Mountain Fresh” tomatoes, but actually grew...