Drobnak v. Andersen Corp.

Decision Date06 April 2009
Docket NumberNo. 08-1314.,08-1314.
Citation561 F.3d 778
PartiesAlan DROBNAK; Keith Markowitz; Dennis Cirks, on behalf of themselves and all others similarly situated, Appellants, v. ANDERSEN CORPORATION; Andersen Windows, Inc., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Steven Alan Schwartz, argued, Haverford, PA, J. Gordon Rudd, Jr., and David M. Cialkowski, Minneapolis, MN, and Brian R. Strange and Gretchen Carpenter, on the brief, Los Angeles, CA, for appellants.

Gary Hansen, argued, Andrew S. Hansen, Heidi A.O. Fisher and Adam C. Trampe, on the brief, Minneapolis, MN, for appellees.

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Alan Drobnak, Keith Markowitz, and Dennis Cirks, the named plaintiffs in a purported class action lawsuit against Andersen Corporation and Andersen Windows, Inc. (collectively, Andersen), appeal from the district court's1 dismissal with prejudice of the amended class complaint, as well as the district court's denial of leave to amend the complaint. Drobnak also appeals from the dismissal without prejudice of his surviving claim. We affirm.


On appeal from dismissal under Federal Rule of Civil Procedure 12(b)(6) and Rule 9(b), we accept as true the factual allegations contained in the complaint and draw all reasonable inferences in favor of the nonmoving party. Noble Sys. Corp. v. Alorica Central, LLC, 543 F.3d 978, 981 (8th Cir.2008); United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 555-56 (8th Cir.2006).

Andersen manufactures and sells insulated glass products, including windows, doors, and skylights. According to Andersen's website, some of these products contain dual-pane glass, the space between the panes being filled with an argon gas blend to minimize thermal transfer and increase the products' energy efficiency. Argon is a transparent, odorless, inert gas recognized for its insulating capabilities. In at least one of its product lines, Andersen represented that it secures its insulating glass with two sealants, which "helps provide a longer life for the windows, helping to prevent moisture from leaking in between the double glazing, and preventing the argon gas blend from leaking out."

Andersen installs capillary or breather tubes in its windows that are destined for cold environs and those that are transported across or installed in high altitudes. The tubes are installed to enable the pressure between the panes to equalize with atmospheric pressure, thus eliminating any pressure disparity that would otherwise cause the panes to shatter or bulge. The tubes, however, cause the inert gas to diffuse out of the window and into the atmosphere, resulting in the space between the panes eventually being filled with air.

Drobnak, a Colorado resident, filed a class action complaint against Andersen, alleging violations of Minnesota law. Drobnak sought damages and injunctive relief for the harm from Andersen products fitted with capillary or breather tubes, "when it was known within the industry generally and Andersen specifically that capillary or breather tubes cause the loss of inert gas and, therefore, reduction in the insulating capability attributable to the use of such gas." Drobnak sought to represent a nationwide class composed of "[a]ll persons who own homes or other residential or commercial structures containing Andersen double-paned glass products ... that are fitted with capillary or breather tubes and filled with inert gas." The complaint alleged seven counts, including violations of Minnesota's version of the Uniform Commercial Code, various fraud-based claims, and an equitable cause of action for unjust enrichment.

Andersen moved to dismiss the complaint for failure to state a claim, based largely on Andersen's express disclosure in its product guides that use of the capillary or breather tubes eliminates the argon gas from the product and results in a less effective insulating glass. Andersen supported its motion with copies of excerpts of its product guides from 1988 to 2007.

His original theory having likely been thwarted, Drobnak cast about for an alternative basis for relief, this time by way of an amended complaint that advanced new theories of recovery and added two plaintiffs. In addition to the seven counts alleged in the initial complaint, the amended complaint asserted another U.C.C.-based claim for breach of implied warranty of merchantability and future performance and a claim for common law fraud by omission. The reason for the alleged leaked argon gas also changed. Specifically, the amended complaint alleged that:

Andersen sold many insulated glass units that it represented were "filled" with inert gas when, in fact, the percentage of inert gas, versus air and other gases, sealed in those units at the time of manufacture was below 90%. As a result, such units did not have the full insulating capability that they would have had were the units actually "filled" with inert gas.

Andersen sold many inert-gas-filled products that had defective seals that caused permeation, or "leakage," of the inert gas from between the glass panes. As a result, such glass products lose the insulating capability attributable to the gas fill.

The amended complaint also named two new plaintiffs: Cirks, a Minnesota resident who purchased seventeen Andersen inert-gas-filled windows in 1992 and 1993, and Markowitz, a Pennsylvania resident who in 2005 purchased a home that contained Andersen inert-gas-filled windows. Each plaintiff alleged that he "is informed and believes, and thereon alleges, that his Andersen windows were not filled with inert gas at the time of purchase and/or experienced gas leakage."2 The amended complaint did not set forth the source of the information or the reasons for the belief.

Drobnak notified Andersen of its breach of express warranties in March 2007, and David Yancey, the named plaintiff in a separate purported class action proceeding in the California state court system, also provided notice to Andersen in March 2007. The amended complaint alleged that Andersen failed to remedy the breach and that "[f]urther notice by additional Plaintiffs and Class members would be futile." The plaintiffs in the amended Minnesota action again sought to represent a nationwide class, excluding California, of persons "who own homes or other residential or commercial structures containing inert-gas-filled glass products ... that were manufactured by [Andersen]."

Andersen withdrew its first motion to dismiss and filed a second motion, which responded to the amended complaint. During the hearing on the motion to dismiss and in a letter to the court following the hearing, plaintiffs' counsel asked the court for leave to amend "should the Court find that the Amended Complaint ... fails to state a claim." The plaintiffs did not move to amend or file a proposed amended complaint before the district court granted Andersen's second motion to dismiss.

The district court dismissed with prejudice the fraud-based claims for failure to satisfy Rule 9(b), the U.C.C.-based claims for failure to provide adequate notice, and the equitable claim because there was an adequate legal remedy available. Drobnak's claim for breach of express warranty, however, was dismissed without prejudice because he had provided notice to Andersen. His remaining U.C.C.-based claims were dismissed with prejudice because the statute of limitations had run and he failed to adequately plead fraudulent concealment.

After dismissal, plaintiffs moved for reconsideration and asked for leave to amend the complaint, attaching a proposed second amended complaint to the letter brief. In the proposed second amended complaint, plaintiffs alleged that counsel caused forty-one Andersen windows to be tested by an independent laboratory through a consultant in the spring and summer of 2007 and that two windows, including one belonging to Cirks were tested later in 2007. Plaintiffs did not allege that any of Drobnak's or Markowitz's windows were tested. According to the proposed second amended complaint, most of the windows that were tested contained argon gas levels of less than 80%; Cirks's window contained just over 50%. The district court denied the motion for reconsideration, concluding that counsel's request at oral argument and his follow-up request in writing did not comply with Minnesota's local rules because no amended complaint accompanied those requests. The district court reviewed the proposed amended complaint and found it troubling that Cirks's window was tested after plaintiffs filed their amended complaint. The district court found no reason to reconsider its dismissal and denied plaintiffs' request for leave to amend.


The named plaintiffs appeal the dismissal of the amended class complaint, arguing that the amended complaint satisfied Rule 12(b)(6) and Rule 9(b) of the Federal Rules of Civil Procedure. The plaintiffs also contend that the district court erred as a matter of law in holding that Cirks and Markowitz had not put Andersen on notice of breach of contract and warranty and that plaintiffs' claim for equitable relief was barred. Drobnak argues that the district court erred in concluding that he failed to adequately plead fraudulent concealment for statute of limitations purposes related to his U.C.C.-based claims and for dismissing without prejudice his express warranty claim for want of subject matter jurisdiction. Finally, the plaintiffs argue that the district court abused its discretion in denying leave to amend the complaint.

A. Dismissal of Amended Class Complaint

We review de novo a district court's dismissal for failure to state a claim. United States ex rel. Joshi, 441 F.3d at 555. To survive a Rule 12(b)(6) motion to dismiss, the complaint must include sufficient factual allegations to provide the grounds on which the claim rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127...

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