Allen v. Andersen Windows, Inc.

• Decision Date: 20 December 2012
• Docket Number: Case No. 2:12–cv–347.
• Citation: 913 F.Supp.2d 490
• Parties: Kim ALLEN, Plaintiff, v. ANDERSEN WINDOWS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

913 F.Supp.2d 490

Kim ALLEN, Plaintiff,

v.ANDERSEN WINDOWS, INC., et al., Defendants.

Case No. 2:12–cv–347.

United States District Court,

S.D. Ohio,

Eastern Division.

Dec. 20, 2012.

Charles E. Schaffer, Levin, Fishbein, Sedran & Berman, Philadelphia, PA, Jonas Mann, Audet & Partners, LLP, Michael McShane, San Francisco, CA, Robert K. Shelquist, Minneapolis, MN, Jack Landskroner, Drew T. Legando, Landskroner, Grieco, Merriman, LLC, Cleveland, OH, for Plaintiff.

Joseph William Ryan, Jr., Tracie N. Ransom, Porter, Wright, Morris & Arthur, Columbus, OH, Gary M. Hansen, Heidi A. O. Fisher, Meghan M. Anzelc, Patrick M. Fenlon, Oppenheimer, Wolff & Donnelly, LLP, Minneapolis, MN, for Defendants.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court on Defendants' motion to dismiss Plaintiff's complaint and to strike Plaintiff's class action claims. (ECF No. 24.) Also before the Court are Plaintiff's opposition to Defendants' motion (ECF No. 31) and Defendants' reply in support of their motion (ECF No. 33). The Court GRANTS IN PART AND DENIES IN PART Defendants' motion.

As more fully described below, the Court (1) finds that part of Plaintiff's claim for breach of express warranty as well as her claim for declaratory judgment survive dismissal under Fed.R.Civ.P. 12(b)(6), (2) declines to strike Plaintiff's class allegations in the Complaint, and (3) dismisses Plaintiff's other claims for failure to state valid claims upon which relief could be granted.

I. Background

Plaintiff Kim Allen is a homeowner in Mount Vernon, Ohio. Defendants Andersen Windows, Inc. and Andersen Corporation (collectively, “Andersen”) manufacture and sell windows and doors throughout the United States.

Allen, whose home was constructed in 1998,¹ had Andersen 400 Series Tilt Wash vinylclad windows installed in her home. The windows came with an express limited warranty,² which provided twenty-year coverage for glass and ten-year coverage for products and components other than glass. (Limited Warranty, ECF No. 24–2, Ex. A.)

At some point following the date on which the windows were installed in her home, Allen noticed dark spots and mold around one of the windows. Allen contacted Andersen and Andersen sent a representative to Allen's home. The Andersen representative replaced a window sash that was moldy or otherwise damaged. Allen alleges that around this time, Andersen informed her that “her house was probably settling and allowing moisture in.” (Compl. ¶ 13, ECF No. 1.)

At some point after Andersen replaced the window sash, Allen noticed dark spots and mold around other windows in her home. Allen contacted Andersen in late 2008 to request replacement windows and additional replacement sashes. Initially, Andersen refused to replace the windows or window sashes in Allen's home and continued to suggest that conditions in Allen's home were responsible for the mold. In mid–2009, however, after Allen contacted Andersen frequently, wrote letters to Andersen's president, and performed a humidity test on her home, Andersen replaced eight moldy window sashes in Allen's home. The original windows are still installed in Allen's home.

The overriding allegation in Allen's lawsuit is that Andersen defectively designed and/or manufactured the windows in question. Allen alleges that the windows do not seal properly and thus expose the interior structure of the windows to moisture. Allen theorizes that this is potentially caused by Andersen's failure to apply a wood preservative to the windows. Not only does this alleged defect damage the windows, Allen further alleges that the defective nature of the windows also leads to damage to area surrounding the windows.

Allen alleges that Andersen knew or should have known that its windows were defective but did not publicize this defect to consumers, despite the fact that Andersen could have easily identified the customers who purchased the windows in question. Allen also alleges that, because Andersen suggested that the conditions in her home (and not the defective windows) caused the mold and/or dark spots to form, she was delayed in discovering the defective nature of the windows. Allen alleges that she had no reasonable way to discover the defect until shortly before she filed her complaint. Finally, Allen alleges that she would not have purchased the windows if she knew that they were defectively designed and/or manufactured.

Allen filed her complaint in this Court on April 18, 2012. (Compl., ECF No. 1.) Allen invokes the diversity jurisdiction of this Court (28 U.S.C. § 1332) and asserts state-law claims for breach of contract (First Claim), breach of express warranty (Second Claim), breach of implied warranties (Third Claim), violations of the Ohio Consumer Sales Practices Act (Fourth Claim), violations of the Ohio Deceptive Trade Practices Act (Fifth Claim), violations of the Ohio Product Liability Act (Sixth Claim), fraudulent concealment and tolling (Seventh Claim), negligent misrepresentation (Eighth Claim), and negligence (Ninth Claim). Allen also includes a Tenth Claim that seeks declaratory and injunctive relief.

Included in the Complaint are class action allegations, as Allen purports to bring this lawsuit on behalf of herself and similarly situated consumers throughout the United States. Allen seeks certification of a class action, defining her proposed nationwide class as:

All those persons or entities who currently own or have owned a 400 Series Tilt Wash vinyl clad window manufactured or sold by Defendant Andersen Corporation that was or is part of a structure physically located in the United States with the distinct design and/or manufacturing defect that allows moisture intrusion which promotes and elevated moisture content and mold growth, accelerated and premature rotting, decay, and deterioration, and overall failure in the window system under normal conditions.

Allen also brings her claims on behalf of state sub-classes of consumers, “as applicable to each of the various states where the laws are similar to each of the states in which Allen resides.” (Compl. ¶ 39.)

Andersen now moves to dismiss the complaint in its entirety under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which the Court may grant relief. (ECF No. 24.) Andersen also moves to strike the class action allegations contained in the Complaint. ( Id.) Allen opposes Andersen's motion (ECF No. 31) and the motion is now ripe for adjudication.

I. Fed.R.Civ.P. 12(b)(6) Standard

Dismissal under Fed.R.Civ.P. 12(b)(6) is proper if a complaint fails to state a claim upon which a court can grant relief. To survive a motion to dismiss, a complaint must provide fair notice of what the claim is and the grounds upon which it rests, and it must set forth sufficient factual allegations suggesting that the plaintiff is entitled to relief under those claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A court, in ruling on a Rule 12(b)(6) motion, must construe the complaint in the light most favorable to the plaintiff and treat all well-pleaded allegations contained therein as true. Id. at 555–56, 127 S.Ct. 1955. The defendant bears the burden of demonstratingthat the plaintiff has failed to state a claim for relief. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007). 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). If there is an absence of law to support the type of claim made, or if the facts alleged are insufficient to state a valid claim, or if on the face of the complaint there is an insurmountable bar to relief, dismissal of the action is proper. Little v. UNUMProvident Corp., 196 F.Supp.2d 659, 662 (S.D.Ohio 2002) (citing Rauch v. Day & Night Mfg. Corp., 576 F.2d 697 (6th Cir.1978)).

Fed.R.Civ.P. 8(a)(2) governs pleading standards and requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require “detailed factual allegations,” “it 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). Thus, a court need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not suffice to defeat a Rule 12(b)(6) motion to dismiss. Id. In fact, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Once the court has identified the well-pleaded allegations, it should view each allegation in the context of the entire complaint to determine whether a plaintiff has alleged sufficient facts to support his or her claim. See In re Polyurethane Foam Antitrust Litig., 799 F.Supp.2d 777, 782 (N.D.Ohio 2011).

Considering only those well-pleaded facts, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A plaintiff's factual allegations must be enough to raise the claimed right to relief above the...