J.S. McCarthy Co. v. Brausse Diecutting Equip.

• Decision Date: 19 October 2004
• Docket Number: No. CIV. 04-107-B-W.,CIV. 04-107-B-W.
• Citation: 340 F.Supp.2d 54
• Parties: J.S. MCCARTHY, CO., INC., d/b/a J.S. McCarthy Printers, Plaintiff, v. BRAUSSE DIECUTTING & CONVERTING EQUIPMENT, INC., Defendant
• Court: U.S. District Court — District of Maine

340 F.Supp.2d 54

J.S. MCCARTHY, CO., INC., d/b/a J.S. McCarthy Printers, Plaintiff, v. BRAUSSE DIECUTTING & CONVERTING EQUIPMENT, INC., Defendant

No. CIV. 04-107-B-W.

United States District Court, D. Maine.

October 19, 2004.

Jeffrey W. Peters, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, ME, for J.S. McCarthy Co., Inc., dba J.S. McCarthy Printers, Plaintiffs.

Sidney St. F. Thaxter, Curtis, Thaxter, Stevens, Broder & Micoleau, Portland, ME, for Brausse Diecutting and Converting Equipment, Inc., Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS COUNTS III, IV AND VI OF PLAINTIFF'S COMPLAINT

WOODCOCK, District Judge.

J.S. McCarthy Co., Inc. (McCarthy) claims Brausse Diecutting & Converting Equipment, Inc. (Brausse) sold it a defective machine and delivered it late. Brausse has moved to dismiss three counts of McCarthy's seven-count complaint. Because the contract has effectively excluded the implied warranties of merchantability and fitness and because McCarthy has not requested relief available under Maine's Uniform Deceptive Trade Practice Act, this Court grants Brausse's motion to dismiss these two counts. Although McCarthy's fraud count fails to comply with Federal Rule of Civil Procedure 9(b)'s particularity requirement, this Court denies Brausse's motion to dismiss allows McCarthy time within which to complete discovery on this issue, but orders it either to amend its complaint to comply with Rule 9(b) or file a voluntary dismissal within sixty days.

I. STATEMENT OF FACTS

On April 30, 2003, McCarthy and Brausse entered into a contract for the purchase and sale of an automatic foil stamping machine.¹ Before the contract was entered into, Brausse arranged for McCarthy to view the operation of two automatic foil stamping machines. Both demonstration machines had been manufactured in Taiwan. The McCarthy-Brausse contract provided the machine would be shipped from Brausse "on or before Sept. 15th" and would be "up and running at Buyer's plant on or before October 15, 2003." The machine, however, was not delivered until November 17, 2003 and was not partially operable until the second week of December, 2003. Even then, the machine failed to conform to contract specifications and performance criteria. After McCarthy ordered the machine, Brausse moved its manufacturing plant from Taiwan to mainland China. Brausse assured McCarthy the model manufactured in China would be of at least the same quality as machines manufactured in Taiwan. It was not. Instead, the machine was of grossly inferior workmanship and quality compared with the demonstration machines manufactured in Taiwan. After McCarthy filed suit, alleging six separate theories of recovery, Brausse moved to dismiss Counts III — Breach of Implied Warranty; IV — Fraud; and, VI — Deceptive Trade Practices.²

II. MOTION TO DISMISS STANDARD

In reviewing a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all well-pleaded factual allegations in the complaint and to draw all reasonable inferences in McCarthy's favor. Fed.R.Civ.P. 12(b)(6); Educadores Puertorriquenos en Accion v. Rey Hernandez, 367 F.3d 61, 62 (1st Cir.2004); Carroll v. Xerox Corp., 294 F.3d 231, 241 (1st Cir.2002). A motion to dismiss is a vehicle to determine whether the complaint alleges facts sufficient to make out a cognizable claim. Id.; LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998). A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Roy v. Augusta, 712 F.2d 1517, 1522 (1st Cir.1983).

III. DISCUSSION

A. Count III — Breach of Implied Warranty.

Count III of McCarthy's complaint alleges Brausse's machine failed to conform to Brausse's specifications or meet the performance criteria specified in its proposal documents and was not fit for the ordinary purposes for which such machines are used. Pl.'s Complaint at ¶ 33. It goes on to allege the machine was inoperable for lengthy periods of time and required numerous service calls. Id. at ¶ 34. Finally, it claims Brausse breached an implied warranty of merchantability since the machine "did not comply to its contract description, meet the performance criteria specified in proposal documents..., was not of fair average quality and was not fit for the ordinary purposes for which foil stamping machines are used." Id. at ¶ 35.

Pointing to the terms of the McCarthy-Brausse contract, Brausse contends the contract itself expressly prohibits a claim for breach of implied warranty.³ The contract reads in part:

"The warranty set forth above is the only warranty by the Seller with respect to the commodity specified in this Agreement. No other warranties of any kind, whether statutory, written, oral, expressed or implied, including but not limited to, warranties of fitness for a particular purpose or merchantability, shall apply."

This paragraph appears on the signature page of the contract and is highlighted in black.

Maine law permits the exclusion of implied warranties of merchantability and fitness under certain limited circumstances.⁴ 11 M.R.S.A. § 2-316(2); Todd Equipment Leasing Co. v. Milligan, 395 A.2d 818, 820 (Me.1978); Lincoln Pulp & Paper Co., Inc. v. Dravo Corp., 445 F.Supp. 507, 516 (D.Me.1977); see McLaughlin v. Denharco, Inc., 129 F.Supp.2d 32, 40 (D.Me.2001). The disclaimer must be in writing and conspicuous.⁵ 11 M.R.S.A. § 2-316(2); Todd Equipment, 395 A.2d at 820; Lincoln Pulp, 445 F.Supp. at 516. In the case of an implied warranty of merchantability, the language must mention merchantability. 11 M.R.S.A. § 2-316(2); Todd Equipment, 395 A.2d at 820; Lincoln Pulp, 445 F.Supp. at 516. The exclusion in this contract complies with section 316(2)'s requirements, since it is in writing and, in the case of the implied warranty of merchantability, it expressly mentions the term, "merchantability." The only remaining issue is whether the exclusion is conspicuous.

Maine law defines "conspicuous" as written so that "a reasonable person against whom it is to operate ought to have noticed it." 11 M.R.S.A. 1-201(10). The statute provides that "Language in the body of a form is `conspicuous' if it is in larger or other contrasting type of color." Id. Finally, the statute clarifies that the determination as to whether a term or clause is conspicuous is a decision for the court. Id. In Todd Equipment, the Maine Supreme Judicial Court engaged in such an analysis. It reviewed the disclaimer terms of a contract and found the "persuasive facts" to include the placement of the disclaimer, whether the disclaimer was in capital letters, and whether it stood out against the remainder of the text. Todd Equipment, 395 A.2d at 821.

Applying this analysis to the McCarthy-Brausse contract, this Court concludes the disclaimer language is conspicuous within the meaning of § 1-202(1). It is found under the general hearing of "Warranty." It is highlighted in type. It is located on the signature page. Finally, just below the disclaimer appears highlighted language all in capital letters alerting the reader to circumstances that will void the warranty. This Court concludes a "reasonable person against whom it is to operate ought to have noticed" the exclusion. Because the exclusion of the implied warranties of merchantability and fitness complies with the applicable statutory requirements, the agreement has effectively excluded an implied warranty claim and Count III must be dismissed.⁶

B. Count IV — Fraud.

In Count IV of its Complaint, McCarthy alleges Brausse "falsely represented to McCarthy that the foil stamping machine would meet contract specifications and performance requirements promised in proposal documents, that it would be `up and running' on October 15, 2003, that the machine manufactured in China would be of equivalent quality of machine manufactured in Taiwan that Brausse demonstrated to McCarthy, and that it owned the design for the machine." Pl.'s Complaint at ¶ 38. McCarthy states that Brausse's false representations were material to McCarthy's decision to purchase the machine. Id. at ¶ 39. McCarthy further alleges that Brausse knew these representations were false or acted in reckless disregard of whether its representations were true or false and made them for the purpose of inducing McCarthy to purchase the foil stamping machine. Id. at ¶¶ 40-41. It asserts justifiable reliance on the part of McCarthy and claims pecuniary losses as a consequence. Id. at ¶¶ 42-43.

Citing Rule 9(b), Brausse argues that McCarthy's allegations fail to meet its "particularity" requirement.⁷ Fed.R.Civ.P. 9(b). It also notes McCarthy's allegation that Brausse knew its representations were false or acted in reckless disregard as to their truth or falsity was made on its "information and belief," which it says is insufficient to sustain a fraud allegation.

In order to state a claim of fraudulent misrepresentation, a plaintiff must allege:

"(1) that the statement was knowingly false; (2) that (defendants) made the false statement with the intent to deceive; (3) that the statement was material to the plaintiffs' decision...; (4) that the plaintiffs reasonably relied on the statement; and, (5) that the plaintiffs were injured as a result of their reliance."

Doyle v. Hasbro, Inc., 103 F.3d 186, 193 (1st Cir.1996); Turner v. Johnson & Johnson, 809 F.2d 90, 95 (1st Cir.1986); Francis v. Stinson, 2000 ME 173, ¶ 38, 760 A.2d 209, 217. A comparison of the elements of fraud against the allegations in the Complaint establishes McCarthy has made sufficient allegations of the elements of fraud to withstand dismissal on this ground.

However, Rule 9(b) requires more. It is not enough for a plaintiff to "chant the statutory mantra, and...