Holmes v. Behr Press Corporation et al

Filing 38

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 8/19/15. (SAC )

FILED
2015 Aug-19 PM 12:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STAT1ES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARY LEE HOLMES,
Plaintiff,
v.
BEHR PROCESS CORPORATION, et
al.,

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CIVIL ACTION NO.
2:15-CV-0454-WMA

Defendants.
MEMORANDUM OPINION
Consistent with this court’s June 2, 2015 memorandum opinion
and order (Doc. 18 and Doc. 19), pro se plaintiff Mary Lee Holmes
filed a second amended complaint (Doc. 21). On June 22, 2015
defendant Home Depot USA, Inc. (“Home Depot”) filed its answer,
which contains as its second affirmative defense a motion to
dismiss under Federal Rules of Civil Procedure 9 and 12(b)(6).
(Doc.

29

at

21).

On

June

23,

2015,

defendant

Behr

Process

Corporation (“Behr”) filed a second motion for a more definite
statement in response to Holmes’ second amended complaint. (Doc.
31). As this court said during the July 28, 2015 hearing1 on the

1

At the July 28, 2015 hearing, the court also recognized
that while Holmes is proceeding as a pro se plaintiff, she is
also a third year law student with some legal training. Compare
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (“[p]ro se
pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally
construed”) with Allen v. Aytch, 535 F.2d 817, 821 n. 21 (3d Cir.
1976) (finding that although not a member of the state bar
association, a complaint drafted by a third year law student
would not be construed liberally because the student had
1

said motions, the court will treat both of Behr’s motions as
motions to dismiss and where appropriate to grant Holmes leave to
amend to meet Behr’s criticisms.
I.

Fictitious parties
Generally, in a diversity case initially filed in federal

court, the naming of fictitious or unknown defendants defeats
diversity. McAllister v. Henderson, 698 F. Supp. 865, 869-70 (N.D.
Ala. 1988); 2 Moore’s Federal Practice, § 8.03 (3d Ed.). Here,
Holmes includes “John Does 1 through 5" (Doc. 21 at 2), while
simultaneously claiming jurisdiction based on diversity (Doc. 21 at
3). Rather than to dismiss the entire action for a lack of
jurisdiction, the court removes the fictitious parties thereby
curing the jurisdictional defect.
II.

Breach of warranty
Holmes attempts to bring various claims against Home Depot and

Behr under both implied and express warranty theories. Generally,
pursuant to Rule 12(b)(6), to survive a motion to dismiss, a
“complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted).
A.

Implied warranty of merchantability and implied warranty
of fitness for a particular purpose

In Alabama, “a warranty that the goods shall be merchantable

“substantial legal training”).
2

is implied in a contract for their sale if the seller is a merchant
with respect to goods of that kind.” Ala. Code § 7–2–314. Further,
an implied warranty of fitness for a particular purpose applies
“[w]here the seller at the time of contracting has reason to know
any particular purpose for which the goods are required and that
the buyer is relying on the seller's skill or judgment to select or
furnish suitable goods.” Ala. Code § 7-2-315. “[B]y their very
language the commercial code's implied warranty sections apply to
the seller of the product . . . [whereby] § 7-2-314 (the implied
warranty of merchantability section) and § 7-2-315 (the implied
warranty of fitness for a particular purpose section) both apply to
the ‘seller.’” Wellcraft Marine, a Div. of Genmar Indus., Inc. v.
Zarzour, 577 So. 2d 414, 419 (Ala. 1990) (emphasis added); see
Bryant v. S. Energy Homes, Inc., 682 So. 2d 3, 5 (Ala. 1996)
(finding that the implied warranty of fitness for a particular
purpose did not apply to the manufacturer of mobile homes, only the
seller”). “There is no right of action on an implied warranty
theory against a manufacturer for property damage without privity
of contract.” Rhodes v. Gen. Motors Corp., Chevrolet Div., 621 So.
2d 945, 947 (Ala. 1993).
In Counts I and II, Holmes claims breach under the implied
warranties of merchantability and fitness for a particular purpose
against both Home Depot and Behr. (Doc. 21 at 17-19). Although
Holmes alleges that Home Depot sold her the Kilz primer, she merely

3

alleges that Behr manufactured Kilz and fails to allege any facts
to indicate that Behr is the “seller” or in some other way is in
privity of contract with her. Therefore, while Holmes sufficiently
states claims against Home Depot in Count I and II, she fails to
state a plausible claim for relief against Behr under § 7–2–314
and/or
B.

§ 7–2–315. Iqbal, 556 at 678.
Breach of express warranty

“[A]n express warranty is created if it is an affirmation of
fact which becomes part of the basis of the bargain, advertising by
a manufacturer gives rise to an express warranty that is imposed,
not by state law, but by the manufacturer itself.” Hobbs v. Gen.
Motors Corp., 134 F. Supp. 2d 1277, 1280 (M.D. Ala. 2001); see Ala.
Code § 7–2–313.
Here, Holmes alleges that Home Depot expressly warranted that
Kilz would adhere to plaster and sheetrock/drywall. (Doc. 21 at
21). Holmes also alleges that Behr expressly warranted through the
included use and application instructions on the Kilz packaging
that it would adhere to the plaster and sheetrock/drywall. (Doc. 21
at 21-22). Therefore, Count III contains sufficient factual matter
to state a claim for relief both against Home Depot and Behr “that
is plausible on its face.’” Iqbal, 556 at 678 (Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
III. Products liability
As a judicial, and not legislative, creation, the Alabama

4

Extended Manufacturer Liability Doctrine (“AEMLD”) generally does
not subsume those preexisting remedies at common law such as breach
of

warranty2,

negligence,

and

wantonness.

Spain

v.

Brown

&

Williamson Tobacco Corp., 872 So. 2d 101, 106 (Ala. 2003). However,
“no Alabama case appears to have held that the AEMLD does not
subsume a strict liability claim . . . [because] such a holding
would be nonsensical, for the simple reason that the AEMLD is
Alabama's (modified) version of strict liability in the products
liability context.” Foster v. Bridgestone Americas, Inc., 2013 WL
489162, at *3 (S.D. Ala. Feb. 8, 2013) (emphasis added). “Under the
AEMLD, a plaintiff must show ‘[1] that an injury was caused by one
who sold a product in a defective condition that made the product
unreasonably dangerous to the ultimate user or consumer; [2] that
the seller was engaged in the business of selling such a product;
and [3] that the product was expected to, and did, reach the user
without substantial change in the condition in which it was sold.’”
Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 31 (Ala. 2003)
(quoting Bell v. T.R. Miller Mill Co., 768 So.2d 953, 957 (Ala.
2000)).
Here, while Holmes states a cognizable claim under the AEMLD

2

Holmes’ breach of warranty and AEMLD claims are separately
cognizable. See Spain v. Brown & Williamson Tobacco Corp., 872
So. 2d 101, 111 (Ala. 2003) (“a claim alleging breach of an
implied warranty of merchantability is separate and distinct from
an AEMLD claim and is viable to redress an injury caused by an
unreasonably dangerous product”).
5

against Behr (Count VII), her separate claims for negligent design
(Count IV) and manufacture defect against Behr (Count V) are
duplicative. In fact, under the AEMLD, a product is defective when
it is “unreasonably dangerous” and “it makes no difference whether
[a product] is dangerous by design or defect.” Rudd v. Gen. Motors
Corp., 127 F. Supp. 2d 1330, 1333 (M.D. Ala. 2001) (quoting Casrell
v.

Altec

Industries,

Inc.,

335

So.2d

128,

132

(Ala.

1976)).

Therefore, Counts IV and V are due to be dismissed.
IV.

Fraud-Based Claims
Under

Federal

Rule

of

Civil

Procedure

9(b),

where

a

plaintiff’s complaint alleges “fraud or mistake, a party must state
with

particularity

the

circumstances

constituting

fraud

or

mistake.” Specifically, under this heightened pleading standard a
plaintiff

allege

“(1)

misrepresentations

the

made;

precise
(2)

the

statements,
time,

documents,

place,

and

or

person

responsible for the statement; (3) the content and manner in which
these statements misled the Plaintiffs; and (4) what the defendants
gained by the alleged fraud.” Am. Dental Ass'n v. Cigna Corp., 605
F.3d 1283, 1291 (11th Cir. 2010).

This requirement is applicable

even if a plaintiff is proceeding pro se making the complaint more
liberally construed. See Rogers v. Nacchio, 241 F. App'x 602, 607608 (11th Cir. 2007) and Merritt v. Lake Jovita Homeowner's Ass',
Inc., 358 F. App'x 47, 49 (11th Cir. 2009).
Here,

Holmes’

claims

for

deceptive

6

and

unlawful

trade

practices against Home Depot and Behr (Count VI), fraudulent
misrepresentation

against

Home

Depot

and

Behr

(Count

VIII),

negligent misrepresentation against Home Depot and Behr (Count IX),
promissory fraud against Behr (Count X), fraudulent suppression and
concealment against Home Depot and Behr (Count XI), fraudulent
deceit against Behr (Count XII), all fail to state claims under the
heightened

pleading

requirement

of

the

federal

rules.

Specifically, for each of Holmes’ fraud counts, she fails to show
what Behr or Home Depot gained by their alleged fraudulent conduct.
Additionally, Holmes’ claims under various provisions of the
Alabama Unlawful Trade Practices Act (“AUTPA”) (Count VI) fail to
show that Home Depot or Behr had the requisite level of knowledge
for a

lack

of

good

faith.

Generally,

when

interpreting

this

statute, the Alabama Supreme Court has required actual knowledge by
the manufacturer or constructive knowledge that “would justify a
finding of lack of good faith.” Strickland v. Kafko Mfg., Inc., 512
So. 2d 714, 717 (Ala. 1987); see Lynn v. Fort McClellan Credit
Union, 2013 WL 5707372, at *7 (N.D. Ala. Oct. 21, 2013) (finding
the AUTPA to require an intent to deceive or actual deception).
While

Holmes

uses

conclusory

words

such

as

“false

.

.

.

statements”, “deceptive”, and “intentionally misrepresented”, these
are not enough to satisfy the requirements of the federal rules.
See Iqbal, 556 at 678 (“[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not

7

suffice”).
Finally,

in

Alabama

a

claim

of

fraud

based

on

misrepresentation is governed by Ala. Code § 6-5-101. Bryant Bank
v. Talmage Kirkland & Co., 155 So. 3d 231 (Ala. 2014). This statute
“recognizes a fraud claim based on innocent misrepresentation [and]
the elements of willfulness or recklessness need not be proven on
such a claim.” Resolution Trust Corp. v. Mooney, 592 So. 2d 186,
188 (Ala. 1991). Holmes incorrectly presents separate claims for
fraudulent misrepresentation against Home Depot and Behr (Count
VIII) and negligent misrepresentation against Home Depot and Behr
(Count IX), when in actuality the claims are indistinguishable and
duplicative. Therefore, Holmes will be granted leave to amend to
properly state her claim of misrepresentation.
V.

Non-cognizable claims
While Holmes’ purported separate claims for res ipsa loquitur

(Count XII), mental anguish, emotional distress, and inconvenience
(Count XIV), and punitive damages (Count XV) allege evidence
designed to establish liability or damages for her cognizable
claims, they state no causes of action and must be dismissed as
claims lacking any cognizability at law.
A.

Res ipsa loquitur

"[R]es ipsa loquitur is not a separate tort or cause of
action; rather, that doctrine is merely a procedural device that
creates a rebuttable inference of negligence." Drew v. Quest
8

Diagnostics, 992 F. Supp. 2d 1177, 1192 n.49 (N.D. Ala. 2014)
(quoting Kerns v. Sealy, 496 F. Supp. 2d 1306, 1315 (S.D. Ala.
2007)). While Holmes asserts in Count XIII claims against Home
Depot and Behr for res ipsa loquitur (Doc. 21 at 35-36), these are
not separate cognizable causes of action and therefore must be
dismissed under Rule 12(b)(6) for failing to state a proper claim
for relief.
B.

Mental anguish/emotional distress & inconvenience

"Emotional distress and mental anguish are not causes of
action but rather types of injury." Pennsylvania Nat. Mut. Cas.
Ins. Co. v. Snider, 2015 WL 1544617, at *4 (11th Cir. Apr. 7,
2015). While Holmes asserts in Count XIV claims against Home Depot
and Behr for mental anguish, emotional distress, and inconvenience
(Doc. 21 at 36-37), these are not separate cognizable causes of
action and therefore must be dismissed under Rule 12(b)(6) for
failing to state a proper claim for relief.
C.

Punitive damages

“[T]here is no separate cause of action in Alabama for
punitive damages.” Franklin Cnty. Sch. Bd. v. Lake Asbestos of
Quebec, Ltd., 1986 WL 69060, at *8 (N.D. Ala. Feb. 13, 1986). While
Holmes asserts in Count XV claims against Home Depot and Behr for
punitive damages

(Doc.

21

at

37-38),

these

are

not

separate

cognizable causes of action and therefore must be dismissed under
Rule 12(b)(6) for failing to state a proper claim for relief.
9

CONCLUSION
Therefore, pursuant to Rule 12(b)(6) Counts I, II, IV, and V
as against Behr and Counts XIII, XIV, and XV as against both
defendants must be dismissed with prejudice for failing to state
claims for relief.

Additionally, pursuant to Rule 9(b), Counts X

and XII as against Behr and Counts VI, VIII, IX, and XI as
against both defendants must be dismissed for their failure to
state a claim with sufficient particularity. However, Holmes will
be granted leave to amend the said claims consistent with this
opinion.
DONE this 19th day of August, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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