Kyszenia v. Ricoh USA, Inc.

• Decision Date: 03 February 2022
• Docket Number: 20-CV-2215 (AMD) (VMS)
• Citation: 583 F.Supp.3d 350
• Parties: Janet KYSZENIA, Victoria Sanders, and Elizabeth Galkowski, on behalf of themselves and others similarly situated, Plaintiffs, v. RICOH USA, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

583 F.Supp.3d 350

Janet KYSZENIA, Victoria Sanders, and Elizabeth Galkowski, on behalf of themselves and others similarly situated, Plaintiffs,

v.RICOH USA, INC., Defendant.

20-CV-2215 (AMD) (VMS)

United States District Court, E.D. New York.

Signed February 3, 2022

Christopher Patalano, Spencer I. Sheehan, Sheehan & Associates, PC, Great Neck, NY, James Chung, Law Office of James Chung, Bayside, NY, for Plaintiff Janet Kyszenia.

Spencer I. Sheehan, Sheehan & Associates, P.C., Great Neck, NY, for Plaintiffs Victoria Sanders, Elizabeth Galkowski.

Franco A. Corrado, Pro Hac Vice, J. Gordon Cooney, Jr., Pro Hac Vice, Morgan, Lewis & Bockius LLP, Philadelphia, PA, for Defendant.

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

Before the Court is the defendant's motion to dismiss the second amended complaint (the "SAC"), in which the plaintiffs bring claims on behalf of a putative class, alleging violations of the New York General Business Law §§ 349 -50, breach of express and implied warranties, violations of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 - 2312, negligent misrepresentation, fraud and unjust enrichment. (ECF No. 17.) The defendant moved to dismiss the SAC on March 18, 2021. (ECF No. 18.) As explained below, the motion is granted.

BACKGROUND

The action arises from alleged defects in cameras manufactured and distributed by the defendant Ricoh, USA, Inc. According to the plaintiffs, a line of the defendant's cameras—the Pentax K-30, Pentax K-50 and Pentax K-70—stop working "at high rates" due to what the SAC describes as an "aperture problem" or "exposure problem." (ECF No. 17 ¶¶ 3-4, 22.)

Specifically, the plaintiffs complain that the aperture functions properly when the camera is first purchased, but deteriorates after about a year, causing photographs to appear "completely dark" (id. ¶ 4), because a part within the aperture—the armature—"contains a smaller amount of copper than necessary for it to function without incident throughout the normal use-life of the camera and too much alloy." (Id. ¶ 32.) The plaintiffs assert that the apertures of the Pentax cameras, in contrast to that of one of the defendant's competitors, contain too much alloy, and not enough copper, which is "less susceptible [than alloy] to normal deterioration." (Id. ¶¶ 31-33, 35-36.) Citing customer complaints and posts on the internet (id. ¶¶ 44-49), the plaintiffs claim that the defendant knew or should have known about this alleged defect, and failed to disclose it to the plaintiffs and the proposed class. (Id. ¶¶ 50, 72, 92.)

Plaintiff Janet Kyszenia bought a Pentax K-50 from Best Buy in Queens, New York in the summer of 2015. (Id. ¶ 61.) She experienced the aperture issue described above in 2016, about a year after she purchased it. (Id. ¶ 62.) Plaintiff Veronica Sanders bought a Pentax K-70 from Best Buy in 2016, and experienced the aperture issue in 2017. (Id. ¶¶ 64-65.) Unlike Kyszenia and Sanders, who purchased their Pentax cameras, the third named plaintiff—Elizabeth Galkowski—received a Pentax K-50 as gift from someone who bought it in 2018 at B&H Photo in New York, New York. Galkowski experienced the aperture issue in March of 2019. (Id. ¶¶ 67-69.) The Pentax cameras that the defendant distributed are covered by a warranty providing that products "purchased through [ ] authorized channels, are warranted by RICOH IMAGING AMERICAS CORPORATION to the original retail purchaser for a period of one year from date of purchase ...." (Id. ¶ 130.) The one-year warranty "is limited to repair of defects in material and/or workmanship," which "will be made at no charge to the customer." (Id. )

The plaintiffs claim that the defendant withheld the fact that it "constructed [the aperture] with lower quality materials that would experience high failure rates within approximately one year of normal usage." (Id. ¶ 92.) The plaintiffs also claim that the defendant's "post-sale conduct" was deceptive because the defendant did not replace the aperture parts, even though it knew that the problem would likely arise outside of the one-year warranty period. (Id. ¶ 93.) The plaintiffs allege that the defendant and its customer representatives misled Kyszenia and Sanders by representing that "the issue could be fixed by resetting their cameras or that the camera functioned properly." (Id. ¶ 80.) According to the plaintiffs, as a result of the defendant's conduct, they "and the putative class have purchased the Products that do not perform as promised" (id. ¶ 97), and "have been forced to pay, or will pay, substantial amount of money to repair the defect and the value of the affected cameras has been diminished." (Id. ¶ 98.)

In the SAC, filed in February 2021,¹ the plaintiffs assert claims against the defendant for: (1) deceptive business practices in violation of the New York General Business Law (the "GBL") §§ 349 - 350 ; (2) breach of express warranty; (3) breach of implied warranty; (4) violations of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 - 2312 ; (5) negligent misrepresentation; (6) fraud; and (7) unjust enrichment.² On behalf of the plaintiffs and the proposed class,³ the SAC seeks declaratory relief, injunctive relief, statutory and monetary damages, equitable relief, and other damages, including punitive damages and attorney's fees. (ECF No. 17 at 29-30.) On March 18, 2021, the defendant moved to dismiss. (ECF No. 18-3.)

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Hogan v. Fischer , 738 F.3d 509, 514 (2d Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. of City Sch. Dist. of New York , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) (internal quotation marks omitted). Although detailed factual allegations are not required, the pleading standard "requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (noting that courts "are not bound to accept as true a legal conclusion couched as a factual allegation").

Rule 9(b) requires that plaintiffs alleging fraud, as the plaintiffs do here, plead their claims "with particularity," specifying "the circumstances constituting fraud." Fed. R. Civ. P. 9(b). The purpose of Rule 9(b) is to "(1) provid[e] a defendant fair notice of plaintiff's claim, to enable preparation of defense; (2) protect[ ] a defendant from harm to his reputation or goodwill; and (3) reduc[e] the number of strike suits." DiVittorio v. Equidyne Extractive Indus. Inc. , 822 F.2d 1242, 1247 (2d Cir. 1987). Under this heightened standard, a plaintiff alleging fraud must "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc. , 723 F.3d 192, 197-98 (2d Cir. 2013) (citations omitted). If the claim "is premised on concealment so that the plaintiff cannot specify the time and place because no affirmative act occurred, the complaint must still allege: (1) what the omissions were; (2) the person responsible for the failure to disclose; (3) the context of the omissions and the manner in which they misled the plaintiff; and (4) what the defendant obtained through the fraud." Woods v. Maytag Co. , 807 F. Supp. 2d 112, 119 (E.D.N.Y. 2011) (internal quotation marks and citation omitted). Failure to satisfy the Rule 9(b) standard is grounds for dismissal. See, e.g., Lerner v. Fleet Bank, N.A. , 459 F.3d 273, 293 (2d Cir. 2006).

DISCUSSION

I. New York General Business Law Sections 349 and 350

The plaintiffs’ first cause of action is based on alleged violations of sections 349 and 350 of the New York GBL. (ECF No. 17 ¶¶ 119-27.) According to section 349, "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state" are unlawful. N.Y. Gen. Bus. Law § 349. Similarly, section 350 provides that "[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful." Id. § 350.

To state claim under either section, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice." Orlander v. Staples, Inc. , 802 F.3d 289, 300 (2d Cir. 2015) (citation omitted). To establish that conduct was deceptive or misleading under the statute, a plaintiff must plausibly allege that the defendant's conduct was "likely to mislead a reasonable consumer acting reasonably under the circumstances." Mantikas v. Kellogg Co. , 910 F.3d 633, 636 (2d Cir. 2018) ; see also Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A. , 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995) (defining "deceptive acts, ... whether representations or omissions," as acts that are "likely to mislead a reasonable consumer acting reasonably under the circumstances"). Because the standard for recovery under section 350, while specific to false advertising, is "substantively identical" to section 349, Second Circuit courts merge analysis of the two claims. See Gristede's Foods, Inc. v. Unkechauge Nation , 532 F. Supp. 2d 439, 451 (E.D.N.Y. 2007) ; Cosgrove v. Oregon Chai, Inc. , 520 F. Supp. 3d 562 (S.D.N.Y. 2021). Section 349 and 350 claims are subject to...