Bishop v. Delaval Inc., Case No. 5:19-cv-06129-SRB

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Writing for the Court: STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE
• Citation: 466 F.Supp.3d 1016
• Parties: Terry BISHOP, DVM; Rodney, Janeen, Chad, and Aaron Naedler, and Naedler Farms II; Daniel and Erin Richards; Bernard and Denise Robillard, and Robillard Flat Farms, Inc., on behalf of themselves and all others similarly situated, Plaintiffs, v. DELAVAL INC., DeLaval International AB, and DeLaval Holding AB, Defendants.
• Docket Number: Case No. 5:19-cv-06129-SRB
• Decision Date: 28 January 2020

466 F.Supp.3d 1016

Terry BISHOP, DVM; Rodney, Janeen, Chad, and Aaron Naedler, and Naedler Farms II; Daniel and Erin Richards; Bernard and Denise Robillard, and Robillard Flat Farms, Inc., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
DELAVAL INC., DeLaval International AB, and DeLaval Holding AB, Defendants.

Case No. 5:19-cv-06129-SRB

United States District Court, W.D. Missouri, Saint Joseph Division.

Signed January 28, 2020

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Arend R. Tensen, Pro Hac Vice, Cullenberg & Tensen, PLLC, Lebanon, NH, Bradley Wilders, Patrick J. Stueve, Jillian R. Dent, Stueve Siegel Hanson, LLP, Kansas City, MO, Daniel Charles Perrone, III, Pro Hac Vice, Perrone Law PLLC, Staten Island, NY, for Plaintiffs.

Erika A. Dirk, Pro Hac Vice, Erin Vaughn Bolden, Pro Hac Vice, Jonathon M. Studer, Pro Hac Vice, Lynn Hagman Murray, Shook, Hardy & Bacon, LLP, Chicago, IL, Gregory K. Wu, Robert T. Adams, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendants.

ORDER

STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE

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Before the Court is Defendant DeLaval Inc.'s Partial Motion to Dismiss Amended Class Action Complaint. (Doc. #35). For reasons discussed below the motion is granted in part and denied in part.

I. BACKGROUND

Plaintiffs in this case are dairy farmers who purchased, financed, leased, and/or rented classic model voluntary milking system ("VMS") robots allegedly "designed to optimize quality milk yield" in a "cow-friendly, hygienic and efficient way." (Doc. #26, ¶ 1). Plaintiffs bring this action on behalf of themselves and others similarly situated and seek certification of a nationwide class and various state subclasses. Plaintiffs purchased the VMS robots either directly from dealerships owned by Defendants DeLaval Inc., DeLaval International AB ("DeLaval International") and DeLaval Holding AB ("DeLaval Holding") (collectively "Defendants"), or through authorized dealers. Plaintiffs allege generally that Defendants employed a uniform marketing scheme to conceal defects of the VMS robots and misrepresented the historical performance and features of the VMS robots to induce Plaintiffs to purchase the VMS robots. Plaintiffs allege "[a]fter inducing dairy farmers to purchase classic model VMS robots, [Defendants] delivered a product that was defectively designed, was not free from defects in material and workmanship, failed to conform to [Defendants'] express and implied warranties ..., and failed to perform as uniformly advertised, marketed and represented[.]" (Doc. #26, ¶ 11).

Plaintiffs bring fourteen claims against Defendants: 1) breach of contract; 2) breach of implied warranty of merchantability; 3) breach of implied warranty of fitness for a particular purpose; 4) breach of express warranty; 5) strict products liability; 6) negligence; 7) fraudulent inducement; 8) negligent misrepresentation; 9) fraudulent concealment; 10) violation of New York General Business Law ("NYGBL"); 11) violation of Tennessee Consumer Protection Act ("TCPA"); 12) violation of Vermont Consumer Protection Act ("VCPA"); 13) violation of Wisconsin Deceptive Trade Practices Act ("WDPTA"); and 14) punitive damages. Defendant DeLaval Inc. moves for dismissal of "all Counts, excluding Count 13 with respect to Plaintiffs Rodney, Janeen, Chad, and Aaron Naedler, and Naedler Farms II, and Counts 7 and 9 with respect to Bernard and Denise Robillard and Robillard Flat Farms, Inc." (Doc. #35, p. 1).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss [for failure to state a claim], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); Zink v. Lombardi , 783 F.3d 1089, 1098 (8th Cir. 2015). "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." Ash v. Anderson Merchs., LLC , 799 F.3d 957, 960 (8th Cir. 2015) (internal citation quotation marks omitted) (quoting

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Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). The Court must accept all facts alleged in the complaint as true when deciding a motion to dismiss. See Data Mfg., Inc. v. United Parcel Serv., Inc. , 557 F.3d 849, 851 (8th Cir. 2009) (noting "[t]he factual allegations of a complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable").

III. DISCUSSION

A. Breach of Contract and Implied and Express Warranty Claims (Counts 1–4)

1. Timeliness

Defendant DeLaval Inc. argues Plaintiff Terry Bishop, DVM's ("Bishop") claim and the claim of Plaintiffs Bernard and Denise Robillard and Robillard Flat Farms, Inc. (the "Robillards") for breach of contract and breach of warranty should be dismissed as untimely because the claims were not brought within the timeframe allowed by the statute of limitations and tolling does not apply. Plaintiffs argue the statute of limitations was tolled because Defendants fraudulently concealed relevant facts from them. Bishop purchased VMS robots for use at his dairy farm in Tennessee. The Robillards purchased VMS robots for use at their dairy farm in Vermont. Both Defendant DeLaval Inc. and Plaintiffs analyze the statute of limitations and tolling issues under Tennessee and Vermont law.

A court may consider a statute of limitations argument at the motion to dismiss stage only if it appears from the face of the complaint that the limitations period has run and the complaint contains no facts to toll that running." JJ Holand Ltd. v. Fredrikson & Byron, P.A. , No. CIV. 12-3064 ADM/TNL, 2013 WL 3716948, at *5 (D. Minn. July 12, 2013) (citing Varner v. Peterson Farms , 371 F.3d 1011, 1016 (8th Cir. 2004) ). Both Tennessee and Vermont impose a four-year statute of limitations on breach of contract and breach of warranty claims. Tenn. Code Ann. § 47-2-725(1), (2) ; Vt. Stat. Ann. Tit. 9A, § 2-725(1), (2). Both Tennessee and Vermont permit tolling of the statute of limitations for breach of contract and breach of warranty claims, Tenn. Code Ann. § 47-2-725(4) ; Vt. Stat. Ann. Tit. 9A, § 2-725(4), "under the fraudulent concealment doctrine ... when the defendant has taken steps to prevent the plaintiff from discovering he [or she] was injured" or that the defendant is the cause of the injury. Redwing v. Catholic Bishop for Diocese of Memphis , 363 S.W.3d 436, 462 (Tenn. 2012) (alteration in original) (internal citation and quotation marks omitted); accord Aube v. O'Brien , 140 Vt. 1, 433 A.2d 298, 300 (1981) ("When a person entitled to bring a personal action is prevented from so doing by the fraudulent concealment of the cause of such action by the person against whom it lies, the period prior to the discovery of such cause of action shall be excluded in determining the time limited for the commencement thereof.") (quoting Vt. Stat. Ann. Tit. 12, § 555 ). "The statute of limitations is tolled until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the defendant's fraudulent concealment or sufficient facts to put the plaintiff on actual or inquiry notice of his or her claim." Redwing , 363 S.W.3d at 463 (Tenn. 2012) ; accord Clarke v. Abate , 194 Vt. 294, 80 A.3d 578, 589–90 (2013).

Plaintiffs here allege facts supporting fraudulent concealment. For example, Plaintiffs allege Defendants "concealed [various defects] from the dairy farmers to whom the classic model VMS was sold[.]" (Doc. #26, ¶ 15). Plaintiffs allege Defendants, through an aggressive marketing campaign, misled them into believing "that other dairy farmers were not having problems with the classic model VMS, and that any problems were of their own making, all the while Defendants had exclusive possession

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and superior, unique and particular knowledge of material facts to the contrary to which Plaintiffs and the Class did not have access." (Doc. #26, ¶ 397). Plaintiffs alleged they were ignorant to the information Defendants fraudulently concealed from them and that despite Plaintiffs' efforts to resolve the VMS robots' performance issues, Defendants fraudulently and continuously reassured Plaintiffs that software updates would fix the issues and that the issues were normal and would improve over time. Plaintiffs allege the Robillards did not learn of the concealed information until October 2015 at the earliest, when they visited another farm and learned that the promised software update did not resolve the performance issues.¹ Plaintiffs allege Bishop did not learn of the concealed information until the spring of 2019, when he consulted with an expert. Accepting Plaintiffs' allegations as true, which the Court...