Danielkiewicz v. Whirlpool Corp.

• Decision Date: 22 November 2019
• Docket Number: Case No. 2:18-cv-13599
• Citation: 426 F.Supp.3d 426
• Parties: Thomas DANIELKIEWICZ, et al., Plaintiffs, v. WHIRLPOOL CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

426 F.Supp.3d 426

Thomas DANIELKIEWICZ, et al., Plaintiffs,

v.WHIRLPOOL CORPORATION, Defendant.

Case No. 2:18-cv-13599

United States District Court, E.D. Michigan, Southern Division.

Signed November 22, 2019

Bradley Mathew Beall, Christopher C. Gold, Stuart Andrew Davidson, Robbins Geller Rudman & Dowd LLP, Boca Raton, FL, Mark Samuel Reich, Robbins Geller Rudman & Down LLP, Melville, NY, Dennis A. Lienhardt, Emily E. Hughes, Sharon S. Almonrode, William Kalas, E. Powell Miller, The Miller Law Firm, Rochester, MI, for Plaintiffs.

Allison Rachel McLaughlin, Laura J. McNabb, Michael T. Williams, Jessica G. Scott, Wheeler Trigg O'Donnell LLP, Juian Richard Ellis, Jr., Brownstein Hyatt Farber Schreck, LLP, Denver, CO, Howard B. Iwrey, James P. Feeney, Dykema Gossett, Bloomfield Hills, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [36]

STEPHEN J. MURPHY, III, United States District Judge

On November 19, 2018, Plaintiffs filed a class action complaint against Defendant Whirlpool Corporation. ECF 1. The case was reassigned to the undersigned as a companion case to an earlier filed class action complaint, Schechner et al. v. Whirlpool Corporation , 2:16-cv-12409. ECF 4. On December 21, 2018, the Court consolidated Danielkiewicz, et al. v. Whirlpool Corporation , No. 2:18-cv-13599 with Angerman, et al. v. Whirlpool Corporation , No. 2:18-cv-13832. ECF 12. On February 18, 2019, Defendant filed a motion to dismiss for failure to state a claim. ECF 25. On March 29, 2019, Plaintiffs filed an amended, consolidated class action complaint, and the Court found moot Defendant's initial motion to dismiss. ECF 30, 40. On May 13, 2019, Defendant filed a motion to dismiss the amended complaint. ECF 36. The Court reviewed the briefs and finds that a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the Court will grant in part and deny it in part Defendant's motion.

BACKGROUND

Fifteen Plaintiffs—Thomas and Katherine Danielkiewicz, Don Martin, John Curcio, Georgia Stamates, Arlene Powers, Nancy Leonti, Linda Watts, Claudia Goodman, Ray and Kris Angerman, Paula Stockbridge, Janice Parker, Tania Jenkins, Terry and Rick Moeller, Lynn Apgar, and Richard and Gloria Hahn—from eight states filed a consolidated class action complaint alleging causes of action related to Defendant's "AquaLift" self-cleaning oven technology. ECF 30. The claims stem from allegations that Defendant's ovens failed to adequately "self-clean" and that Defendant's marketing and advertising misrepresented the effectiveness of the self-cleaning technology.

Plaintiffs raise the following claims: (1) violations of the Magnuson-Moss Warranty Act ("MMWA")—Implied Warranty, 15 U.S.C. § 2301 ; (2) Breach of Contract; (3) Breach of UCC Express Warranty; (4) Breach of UCC Implied Warranty of Merchantability; (5) Unjust Enrichment; (6) violations of the Michigan Consumer Protection Act ("MCPA"), M.C.L.A. § 445.902 ; (7) violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.204 ; (8) violations of the New York General Business Law, GBL § 349; (9) violations of the New York General Business Law, GBL § 350; (10) violations of the California Consumer Legal Remedies Act ("CLRA"), CLRA § 1761; (11) violations of the California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 ; (12) violations of the Missouri Merchandising Practices Act ("MMPA"), § 407.010 RSMo ; (13) violations of the Minnesota Prevention of Consumer Fraud Act ("MCFA")—Unlawful Practices, Minn. Stat. §§ 325F.68, 8.31 ; (14) violations of the MCFA—False Statement in Advertisement, Minn. Stat. § 325F.67 ; (15) violations of the Minnesota Uniform Deceptive Trade Practices Act ("MDTPA"), Minn. Stat. § 325D.43 ; (16) violations of the Washington Consumer Protection Act ("WCPA"), Wash. Rev. Code. Ann. § 19.86.010 ; (17) violations of the Georgia Fair Business Practices Act ("GFPBA"), Ga. Code. Ann. § 10-1-390 ; and (18) violations of the Georgia Uniform Deceptive Trade Practices Act ("GUDTPA"), Ga. Code Ann. § 10-1-370. Id. at 1365–1410. Defendant's partial motion to dismiss addressed many but not all of the claims. ECF 36.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint that fails to state a claim upon which relief can be granted. When evaluating a claim under Rule 12(b)(6), the Court views the complaint in the light most favorable to the plaintiffs, presumes the truth of all well-pled factual assertions, and draws every reasonable inference in favor of the non-moving party. Bassett v. Nat'l Collegiate Athletic Ass'n , 528 F.3d 426, 430 (6th Cir. 2008). But "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court may only grant a 12(b)(6) motion to dismiss if the allegations are not "sufficient ‘to raise a right to relief above the speculative level,’ and to ‘state a claim to relief that is plausible on its face.’ " Hensley Mfg. v. ProPride, Inc. , 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation omitted)). If "a cause of action fails as a matter of law, regardless of whether the plaintiff's factual allegations are true or not," then the Court must grant dismissal. Winnett v. Caterpillar, Inc. , 553 F.3d 1000, 1005 (6th Cir. 2009).

DISCUSSION

Defendant argues that all Plaintiffs' breach of contract claim, some Plaintiffs' warranty claims, and some Plaintiffs' state law claims fail to state a claim upon which relief can be granted. ECF 36, PgID 2360. The Court will address each claim in turn.

I. Breach of Contract Claim

Defendant argues that Plaintiffs' breach of contract claim fails because they did not sufficiently plead facts alleging that Defendant formed a contract with Plaintiffs. Id. at 2374. Plaintiffs allege that Defendant's advertising of the self-cleaning oven technology constituted an offer that Plaintiffs accepted when they purchased ovens with the AquaLift self-cleaning technology. ECF 30, PgID 1367. In the alternative, Plaintiffs allege that they are intended third-party beneficiaries of the contracts between Defendant and various retailers. Id. at 1368.

A contract requires an "offer, acceptance, consideration, and sufficient specification of essential terms." See, e.g. , St. Joe Corp. v. McIver , 875 So. 2d 375, 381 (Fla. 2004). Generally, "an advertisement does not constitute an offer." Leonard v. Pepsico, Inc. , 88 F. Supp. 2d 116, 122 (S.D.N.Y. 1999). Privity of contract exists between contracting parties and intended beneficiaries. See Montgomery v. Kraft Foods Glob., Inc. , No. 1:12-CV-00149, 2012 WL 6084167, at *13 (W.D. Mich. Dec. 6, 2012), aff'd , 822 F.3d 304 (6th Cir. 2016). The intent of the contracting parties determines whether a third-party beneficiary is intended or incidental. See, e.g. , Schmalfeldt v. N. Pointe Ins. Co. , 469 Mich. 422, 428–29, 670 N.W.2d 651 (2003). If the contracting parties "have undertaken to give or do something directly to or for" a third party, then the third party becomes an intended beneficiary. Montgomery , 2012 WL 6084167, at *18 (emphasis omitted). And if the contracting parties have not done so, then the third party is an incidental beneficiary and lacks privity of contract. Id. "It is axiomatic in the law of contract that a person not in privity cannot sue on a contract." DAFCO LLC v. Stewart Title Guar. Co. , 156 Idaho 749, 331 P.3d 491, 496 (2014) (quoting Wing v. Martin , 107 Idaho 267, 688 P.2d 1172, 1177 (1984) ). Thus, "only intended, rather than incidental, third-party beneficiaries may sue when a contractual promise in their favor has been breached." Montgomery , 2012 WL 6084167, at *13 (citations omitted).

Here, each Plaintiff alleges that he or she purchased the oven from a third-party retailer. See ECF 30, PgID 1257–75. The fact that Defendant's written warranty on the self-cleaning technology was included with the purchase does not create privity of contract between Plaintiffs and Defendant. See Henderson v. Chrysler Corp. , 191 Mich. App. 337, 342–43, 477 N.W.2d 505 (1991). Privity of contract therefore only exists if Plaintiffs are intended third-party beneficiaries of the contracts between Defendant and the third-party retailers. See Montgomery , 2012 WL 6084167, at *18.

But Plaintiffs failed to plead facts that show that Defendant and the third-party retailers specifically intended their contracts to directly benefit Plaintiffs or that Plaintiffs—end-user consumers—as intended beneficiaries to a contract between Defendant—a remote manufacturer—and the retailers. See Schechner v. Whirlpool Corp. , 237 F. Supp. 3d 601, 608 (E.D. Mich. 2017). Because Plaintiffs have pleaded insufficient facts to establish privity of contract between Defendant and Plaintiffs, the Court will dismiss with prejudice Plaintiffs' breach of contract claim.

II. Warranty Claims

Plaintiffs allege three warranty-based claims: breach of MMWA implied warranty, breach of UCC express warranty, and breach of UCC implied warranty. Defendant argues that the warranty-based claims as to some of the Plaintiffs should be dismissed because (1) six Plaintiffs failed to sufficiently plead reasonable notice and (2) four Plaintiffs lack privity to bring implied warranty claims. ECF 36, PgID 2378, 2386. Defendant further argues that for each Plaintiff's UCC warranty claim that fails, that Plaintiff's MMWA implied warranty claim fails as well. Id. at 2388–89. The Court will address each argument in turn.

A. Pre-Suit Notice

Defendant argues that the Court should dismiss the UCC express and implied warranty claims of the Danielkiewiczs, Powers, Leonti, Apgar, and Stockbridge for lack of pre-suit notice. Id. at 2378. State law governs Plaintiffs'...