Nathan v. Whirlpool Corp.

492 F.Supp.3d 747

Eric NATHAN, et al., Plaintiffs,

v.WHIRLPOOL CORPORATION, Defendant.

Case No. 3:19-cv-226

United States District Court, S.D. Ohio, Western Division.

Signed October 2, 2020

Paul M. De Marco, Wilbert Benjamin Markovits, Terence Richard Coates, Markovits, Stock & DeMarco, LLC, Cincinnati, OH, Nathan D. Prosser, Pro Hac Vice, Edina, MN, for Plaintiffs.

James Alan Dyer, Sebaly Shillito & Dyer, Dayton, OH, Andrew M. Unthank, Pro Hac Vice, Daniel N. Guisbond, Pro Hac Vice, Denver, CO, for Defendant.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART WHIRLPOOL CORPORATION'S MOTION TO DISMISS PLAINTIFFS’ AMENDED CLASS ACTION COMPLAINT; PLAINTIFFS GIVEN LEAVE TO AMEND COMPLAINT WITHIN 30 CALENDAR DAYS

WALTER H. RICE, UNITED STATES DISTRICT JUDGE

Plaintiffs Eric Nathan, Chris Smith, William Johnson, Richard Tschernjawski and Judith Anderson filed suit against Whirlpool Corporation on behalf of themselves and similarly-situated purchasers of certain KitchenAid blenders.¹ The Amended Class Action Complaint asserts numerous claims of breach of express and implied warranty, negligent misrepresentation, consumer fraud, and unjust enrichment. Doc. #17.

This matter is currently before the Court on Whirlpool Corporation's Motion to Dismiss Plaintiffs’ Amended Class Action Complaint, Doc. #21.

I. Background and Procedural History

In the First Amended Class Action Complaint, Plaintiffs allege that Whirlpool represents, in its marketing materials and on its product packaging, that two series of its KitchenAid blenders ("the Blenders") are more powerful than they actually are. The product packaging states that the Pro Line series has a 3.5 peak horsepower motor, and the High Performance Series has a 3.0 peak horsepower motor. Plaintiffs, however, maintain that "Defendant's misrepresentation of ‘peak’ horsepower does not reflect the Blenders’ actual horsepower output while in household operation." Doc. #17, PageID#194. According to Plaintiffs, the actual horsepower output in the pitcher of the Blenders is considerably less.

Plaintiffs further contend that Whirlpool's representations are "designed to mislead consumers into believing the Blenders have much more power than they actually have, leading to consumers overpaying for Blenders and/or causing consumers to purchase the Blenders instead of other manufacturers’ blenders or less expensive blenders." Id.

Plaintiffs filed suit under the Class Action Fairness Act, 28 U.S.C. § 1332(d).² They seek certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of a nationwide class, and various subclasses of purchasers from Maryland, Virginia, Illinois, Wisconsin, New York and Ohio. The Amended Class Action Complaint, Doc. #17, asserts claims of breach of express warranty (Counts I-8), breach of implied warranty (Counts 9-13), negligent misrepresentation (Count 14), statutory consumer fraud (Counts 15-20), and unjust enrichment (Counts 21-25).

Whirlpool has moved to dismiss all counts pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6). Doc. #21. That motion to dismiss is fully briefed and ripe for decision. See Docs. ##22, 23.

II. Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 8(a) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must provide the defendant with "fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a complaint on the basis that it "fail[s] to state a claim upon which relief can be granted." The moving party bears the burden of showing that the opposing party has failed to adequately state a claim for relief. DirecTV, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch , 946 F.2d 451, 454-55 (6th Cir. 1991) ). The purpose of a motion to dismiss under Rule 12(b)(6) "is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod , 988 F.2d 635, 638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Handy-Clay v. City of Memphis , 695 F.3d 531, 538 (6th Cir. 2012) (quoting Treesh , 487 F.3d at 476 ).

Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. Unless the facts alleged show that the plaintiff's claim crosses "the line from conceivable to plausible, [the] complaint must be dismissed." Id. Although this standard does not require "detailed factual allegations," it does require more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 555, 127 S.Ct. 1955. " Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Legal conclusions "must be supported by factual allegations" that give rise to an inference that the defendant is, in fact, liable for the misconduct alleged. Id. at 679, 129 S.Ct. 1937.

In ruling on a motion to dismiss, the Court may consider "the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. Nat'l Collegiate Athletic Ass'n , 528 F.3d 426, 430 (6th Cir. 2008).

III. Discussion

A. Warranty Claims (Counts 1-13)

1. State Law Claims of Breach of Express and Implied Warranty (Counts 1, 3-12)

Counts 1, 3, 4, 5, 6, 7 and 8 of the First Amended Complaint assert what appear to be common law claims of breach of express warranty.³ Plaintiffs generally allege that the representations concerning peak horsepower constitute express warranties, that Whirlpool breached those express warranties by failing to provide conforming goods, and that Plaintiffs were damaged as a result. Counts 9, 10, 11 and 12 assert what appear to be common law claims of breach of implied warranty.⁴ Plaintiffs generally allege that Whirlpool has breached implied warranties that the goods conform to representations made and are fit for their intended purpose.

In its Motion to Dismiss, Whirlpool argues that all of these state law claims must be dismissed because they are governed by the Uniform Commercial Code ("UCC") and cannot be pled at common law. See Chambers v. King Buick GMC, LLC , 43 F. Supp. 3d 575, 615 (D. Md. 2014) ; Sutherlin v. Lowe's Home Ctrs., LLC , No. 3:14cv368, 2014 WL 4748530, at *2 (E.D. Va. Sep. 23, 2014) ; Thacker v. Menard, Inc. , 105 F.3d 382, 385 (7th Cir. 1997) ; Mekertichian v. Mercedes-Benz U.S.A., L.L.C. , 347 Ill.App.3d 828, 283 Ill.Dec. 324, 807 N.E.2d 1165, 1168 (2004) ; Twin Disc, Inc. v. Big Bud Tractor, Inc. , 582 F. Supp. 208, 213-14 (E.D. Wis. 1984) ; Haley v. Kolbe & Kolbe Millwork Co., Inc. , No. 14-cv-99, 2015 WL 9255571, at *5 (W.D. Wis. Dec. 18, 2015) ; Martino v. MarineMax Ne., LLC , No. 17-CV-4708, 2018 WL 6199557, at *4 (E.D.N.Y. Nov. 28, 2018) ; Miles v. Kohli & Kaliher Assoc., Ltd. , 917 F.2d 235, 256 (6th Cir. 1990) ; Curl v. Volkswagen of Am., Inc. , 114 Ohio St. 3d 266, 2007-Ohio-3609, 871 N.E.2d 1141, ¶26 (Ohio 2007).

Plaintiffs concede that these claims are governed by the UCC rather than common law. They argue, however, that the absence of citations to the UCC statutes of each state does not transform their claims into common law claims. Nevertheless, Plaintiffs seek leave to amend their Complaint if the Court believes otherwise.

Based on the above citations, the Court finds that, in pleading these claims as common law claims, Plaintiffs have failed to state a claim upon which relief may be granted. Counts 1, and 3-12 are subject to dismissal on this basis. The only question is whether Plaintiffs should be given leave to amend their Complaint to plead some, or all, of their breach of express warranty and breach of implied warranty claims under the UCC.

Although the Court must freely give leave to amend when justice so requires, Fed. R. Civ. P. 15(a), it need not grant leave if amendment would be futile. Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Here, Whirlpool argues that it would be futile to give Plaintiffs leave to amend their Complaint to assert these claims under the UCC because: (a) Plaintiffs failed to satisfy UCC notice requirements; (b) as to Counts 3, 5-6 and 11-12, Plaintiffs lack the requisite privity; and (c) as to Counts 1 and 3-8, the additional information included in the Blenders’ Use and Care Guides is fatal to any express warranty claims under the UCC.⁵

a. Notice Requirements

Under the UCC, a buyer is barred from any remedy if he fails to notify the seller of the breach within a reasonable time after he discovers or should have discovered the breach. See MD Code, Commercial Law, § 2-607(3)(a) ; VA Code Ann. § 8.2-607(3)(a) ; 810 ILCS § 5/2-607(3)(a) ; W.S.A. § 402.607(3)(a) ; McKinney's Uniform Commercial Code § 2-607(3)(a) ; R.C. § 1302.65(C)(1). "What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action." UCC § 1-204(2).

On March 22, 2019, counsel for Plaintiffs Eric Nathan and Richard Tschernjawski sent Notice of the alleged breach to KitchenAid, on behalf of Nathan, Tschernjawski "and all similarly situated consumers nationwide," Doc. #21-3, PageID##377-78.⁶ The first question is whether this letter is sufficient to...