Jarrett v. Panasonic Corp. of N. Am.

Decision Date21 June 2013
Docket NumberNo. 4:12–CV–00739–SWW.,4:12–CV–00739–SWW.
Citation8 F.Supp.3d 1074
PartiesDenise JARRETT, individually and on behalf of all others similarly situated, Plaintiff, v. PANASONIC CORPORATION OF NORTH AMERICA; Sanyo North America Corporation; Sanyo Manufacturing Corporation; Wal–Mart Stores, Inc.; and Wal–Mart Stores Arkansas, L.L.C., Defendants.
CourtU.S. District Court — Eastern District of Arkansas

Andrew J. Cross, Jacob A. Flint, James J. Rosemergy, Jeffrey J. Lowe, Carey, Danis & Lowe L.L.C., St. Louis, MO, Susan E. Burgess, Thomas G. Buchanan, III, Law Office of Thomas G. Buchanan, Little Rock, AR, for Plaintiff.

OPINION AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

Plaintiff Denise Jarrett brings this proposed class action against Defendants Sanyo Manufacturing Corporation (Sanyo), Wal–Mart Stores, Inc., and Wal–Mart Stores Arkansas, L.L.C. (collectively, Wal–Mart), alleging the Defendants designed, manufactured, distributed or sold defective 42? and 46? Sanyo plasma televisions.1 Plaintiff filed her action in the Circuit Court of Pulaski County, Arkansas, but it was removed to this Court by Defendants under the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d).2

Now before the Court is Defendants' motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) [doc. # 38]. Plaintiff has responded in opposition to Defendants' motion and Defendants have filed a reply to Plaintiff's response. For the reasons that follow, the Court grants in part and denies in part Defendants' motion for judgment on the pleadings.

I.

Plaintiff claims that in November 2010 she purchased a 46? Sanyo plasma television at a Wal–Mart store in Little Rock, Arkansas, but that in October 2011, the television began to malfunction, losing partial picture resulting in the right side of the screen becoming black. Compl. ¶¶ 17–18. Plaintiff claims [t]he 42? and 46? Sanyo plasma televisions have a design defect causing the screen to flicker, lose picture intermittently, lose full picture and/or lose full picture and sound, sometimes within hours of purchase.” Compl. ¶ 6. Plaintiff claims the defect she experienced is “widespread and systemic across the United States” and that [d]espite long-standing knowledge of the problems,” Defendants have purposely concealed, suppressed, and omitted to disclose to consumers that its 42? and 46? Sanyo plasma televisions are defectively designed. Compl. ¶¶ 7, 20. Plaintiff asserts the following claims against Defendants: Count I—Breach of Implied Warranty of Merchantability; Count II—Violation of the Arkansas Deceptive Trade Practices Act (ADTPA), Ark.Code Ann. § 4–88–101 et seq.; and Count III—Unjust Enrichment. Compl. ¶¶ 42–74.

Plaintiff proposes a nationwide class that consists of [a]ll persons and entities residing in the United States who purchased a 42? and 46? Sanyo plasma television” and an Arkansas subclass of [a]ll persons and entities residing in the State of Arkansas who purchased a 42? and 46? Sanyo plasma television.” Compl. ¶ 24. Plaintiff claims that the nationwide class and Arkansas subclass “are both composed of, at least, thousands of people who purchased 42? and 46? Sanyo televisions, with the same common defect that causes similar characteristics and symptoms.” Compl. at ¶ 25.

II.

Defendants move for judgment on the pleadings under Fed.R.Civ.P. 12(c) on the following grounds: (1) Defendants properly disclaimed any implied warranty of merchantability and, separately, Plaintiff has not alleged that she provided any of the Defendants with the required pre-suit notice; (2) Plaintiff's ADTPA claim fails as she does not allege reasonable reliance and injury flowing from Defendants' allegedly deceptive conduct and she also does not plead her ADTPA claim with particularity as required by Fed.R.Civ.P 9(b) ; (3) Plaintiff's unjust enrichment claim fails as a matter of law because an express contract—a written warranty—existed; and (4) even if any of Plaintiff's individual claims survive, her class allegations should not.

A.

A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is reviewed under the same standards used to review a motion to dismiss under Fed.R.Civ.P. 12(b)(6).

Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.2009) (citation omitted). Judgment on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law. Id. The Court is required to accept as true all factual allegations set out in the complaint and to construe the complaint in the light most favorable to the plaintiff, drawing all inferences in her favor. Id. However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “Nor does a complaint suffice if it tenders ‘naked assertion[s] devoid of ‘further factual enhancement.’ Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). To survive a motion to dismiss, a complaint must plead “enough facts to 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. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). A well-pleaded complaint may proceed even if it appears that actual proof of those facts is improbable and that recovery is very remote and unlikely. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A complaint cannot, however, simply leave open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery. Id. at 561, 127 S.Ct. 1955. [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]‘that the pleader is entitled to relief.’ Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2) ).3

B.
1.

The Court first addresses Defendants' argument that they properly disclaimed any implied warranty of merchantability. This argument has subparts which the Court will address in turn.

i.

Under the Arkansas Uniform Commercial Code (Arkansas UCC), a seller may exclude implied warranties of merchantability provided that the disclaimer mentions “merchantability” and is conspicuous. Ark.Code Ann. §§ 4–2–314 and 4–2–316. See also Perez v. Volkswagen Group of America, Inc., No. 2:12–cv–02289, 2013 WL 1661434, *6 (W.D.Ark. April 17, 2013)(“Arkansas law permits a merchant to limit an implied warranty of merchantability.”) (citing Ark.Code Ann. §§ 4–2–314 and 4–2–316 ). Language is “conspicuous” if it is “so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.” Ark.Code Ann. § 4–1–201(b)(10). Conspicuous terms include (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size” and (B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.” Ark.Code Ann. § 4–1–201(b)(10)(A) and (B).

All of the television models identified in paragraph one of Plaintiff's Complaint (DP42740, DP42746, DP42647, and DP46849) came with an Owner's Manual which contained an express one-year limited warranty. All other warranties—including merchantability—were disclaimed by Sanyo in the Owner's Manuals as follows:

THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Owner's Manuals (Exs. A–D).

Plaintiff does not dispute, and the Court finds, that the disclaimer in Sanyo's Owner's Manuals mentions “merchantability” and is conspicuous in that it is prominently featured in the middle of the page in capital letters. Accordingly, Defendants are entitled to judgment on the pleadings as to Plaintiff's breach of implied warranty of merchantability claim against Sanyo.

The same is not true of Wal–Mart, however. In their reply brief, Defendants argue in a footnote that Wal–Mart, like Sanyo, effectively disclaimed all implied warranties by providing the buyer with the Sanyo express one-year limited warranty found within the Owner's Manual in the boxed product at the time of sale. The Court disagrees. “In the usual case, a distributor or dealer must make his own disclaimer to be free from implied warranty liability. He cannot rely on a disclaimer used by the manufacturer even though he passes that documentation on to the ultimate buyer.” Barkley Clark & Christopher Smith, The Law of Product Warranties § 8:14 [1] (2012). See also Florists' Mut. Ins. v. Lewis Taylor Farms, Inc., No. 7:05–cv–50, 2008 WL 875493, *12 (M.D.Ga. March 27, 2008) (“a manufacturer's disclaimer of warranties does not run with the goods so as to protect any subsequent seller of them; thus, each subsequent seller must make his own independent disclaimer in order to be protected from warranty liability”) (quoting 63 Am.Jur. Prods. L. § 801). Defendants cite no Arkansas law to the contrary. The one case cited by Defendants, Graham Hydraulic Power, Inc. v. Stewart & Stevenson Power, Inc., 797 P.2d 835 (Colo.App.1990), is distinguishable. In that case, the Colorado Court of Appeals...

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