Holmes v. Behr Press Corporation et al

Filing 58

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 11/17/15. (SAC )

FILED
2015 Nov-17 PM 03:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES 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
On August 19, 2015, this court dismissed the fraud counts
contained in the amended complaint of plaintiff, Mary Lee Holmes,
but with leave to amend said counts on or before August 25, 2015.
(Doc. 39).

On August 28, 2015, three days after the deadline

expired, Holmes filed a Third Amended Complaint. (Doc. 41).

On

September 4, 2015 Holmes filed a motion styled as a “Motion to
Accept Third Amended Complaint Filed Out Of Time”, requesting that
the court accept her Third Amended Complaint despite filing it
late. (Doc. 45).

Defendants have not consented to the motion,

which will be treated as a Rule 6(b) motion made after time has
expired. Fed. R. Civ. Proc. 6(b)(1)(B).
On September 11, 2015, defendants Behr Process Corporation
(“Behr”) and Home Depot USA, Inc. (“Home Depot”) filed a joint
motion

to

strike

plaintiff’s

Third

Amended

Complaint

or,

alternatively, to dismiss Holmes’ amended fraud counts, and further
moved to limit Holmes’ damages claimed in certain counts. (Doc.
1

46).

On September 25, 2015, Holmes requested an extension of the

time to respond (Doc. 48) and subsequently filed her response on
September 28, 2015 (Doc. 49) along with a separate motion to extend
defendants’ reply deadline by three days (Doc. 50).

On September

29, 2015, this court granted the extensions for all parties. (Doc.
51; Doc. 52). Defendants timely filed their joint reply on October
7, 2015 (Doc. 53).

Having been fully briefed, plaintiff’s 6(b)

motion and defendants’ motion to strike the amendment or motion to
dismiss are now under submission.
I.

Untimely Filed Amended Complaint
“When an act may or must be done within a specified time, the

court may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. Proc. 6(b)(1)(B).

In the absence

of bad faith, a court may find “excusable neglect” and forgive
untimeliness for innocent oversight by counsel. Walter v. Blue
Cross & Blue Shield United of Wisconsin, 181 F.3d 1198, 1202 (11th
Cir. 1999); see Pioneer Inv. Servs. Co. v. Brunswick Associates
Ltd. P'ship, 507 U.S. 380, 395 (1993) (“the [excusable neglect]
determination is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party's omission”).
Defendants do not assert bad faith by Holmes in filing her
Third Amended Complaint three days late.
strike

the

entire

Third

Amended

2

Instead, they move to

Complaint

claiming

prejudice

alongside a request for costs and fees for having “to draft a
costly and otherwise unnecessary Motion to Dismiss.” (Doc. 46 at
11).
the

While the reasons Holmes gives for her delay read more like
melodrama

of

a

Sophoclean

tragedy,

defendants’

claim

of

prejudice and invitation to use Rule 6(b) as a windfall is almost
as

dramatic.

The

court

finds

excusable

neglect

for

pro

se

plaintiff’s three day delay and minimal prejudice to defendants.
See Vestavia Plaza, LLC v. City of Vestavia Hills, Ala., 2013 WL
4804196, at *1 (N.D. Ala. Sept. 9, 2013).

Therefore Holmes’ Rule

6(b) motion will be granted and defendants’ motion to strike and
request for costs and fees will be denied.
II. Fraud Claims
Under

Federal

Rule

of

Civil

Procedure

9(b),

where

a

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

particularity

mistake.”

the

Specifically,

circumstances
in

the

constituting

Eleventh

Circuit

fraud
under

or
this

heightened pleading standard a plaintiff must allege “(1) the
precise statements, documents, or misrepresentations made; (2) the
time, place, and 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).1

1

In her brief, Holmes states the wrong standard for a
motion to dismiss, errantly citing the judicial opinions of
various Alabama courts. (Doc. 41 at 19). Being in federal court,
3

In her Third Amended Complaint, Holmes presents three theories
of fraud: Count V alleges that Behr violated the Alabama Deceptive
Trade Practices Act (“ADTPA”), Counts VII and VIII respectively
allege that Home Depot and Behr made fraudulent misrepresentations,
and Count IX alleges that Behr fraudulently suppressed information.
While Holmes does state these claims with more particularity than
in her earlier efforts, each fails to state a claim that meets the
Rule 9(b) standard or the ADTPA standard.
A.

Alabama Deceptive Trade Practices Act

A merchant is liable under the ADTPA when “[r]epresenting that
goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or qualities that they do not have .
. .” Ala. Code § 8-19-5(5).

“No action may be brought under [the

ADTPA] more than one year after the person bringing the action
discovers or reasonably should have discovered the act or practice
which is the subject of the action.” ALA. CODE § 8-19-14 (emphasis
added).

“The question of when a plaintiff should have discovered

fraud should be taken away from the jury and decided as a matter of
law only in cases in which the plaintiff actually knew of facts
that would have put a reasonable person on notice of fraud.” Bryant
Bank v. Talmage Kirkland & Co., 2011 WL 11742121, at *6 (Ala. May
23, 2014).

this matter is governed by the Federal Rules of Civil Procedure
and related federal court decisions.
4

Holmes alleges that during an October 28, 2013 telephone
conversation with a Behr representative, she became aware of a
maximum dry time for the Kilz product when the representative
stated that “if you wait too long between applying second coats of
primer or the topcoat that moisture can seep under the primer and
cause

the

primer

to

crack,

peel

or

fall

off

the

walls

and

ceilings.” (Doc. 41 at 9-10, 32). Therefore, under the ADTPA’s one
year statute of limitations, the period for filing expired on
October 28, 2014, however Holmes did not file this action until
March 17, 2015. (Doc. 1).

She essentially concedes to this point

by failing in her response to address the statute of limitations
argument. (Doc. 46 at 14-15; Doc. 49).

See Collins v. Davol, Inc.,

56 F. Supp. 3d 1222, 1228 (N.D. Ala. 2014).

Therefore, Holmes’

ADTPA claim under Count V is barred by the statute of limitations
and must be dismissed.
In addition to the bar of the statute of limitations, Holmes
procedurally waived her right to pursue a claim under the ADTPA by
pursuing her other fraud claims against Behr.2

Under the ADTPA

“[a]n election to pursue the civil remedies prescribed in this

2

Additionally, nowhere in Holmes’ Third Amended Complaint
or briefing does she allege that she provided Behr with a written
demand or notice as required by Ala. Code § 8-19-10(e), which is
a condition precedent to filing a suit under the ADTPA. Nimbus
Technologies, Inc. v. SunnData Products, Inc., 2005 WL 6133373,
at *21 (N.D. Ala. Dec. 7, 2005); see Sheehan v. Bowden, 572 So.
2d 1211, 1213 (Ala. 1990)(holding that plaintiff has the burden
of proving compliance that it served a demand on defendant prior
to filing any action under the ADTPA).
5

chapter shall exclude and be a surrender of all other rights and
remedies available at common law, by statute or otherwise, for
fraud, misrepresentation, deceit, suppression of material facts or
fraudulent concealment arising out of any act, occurrence or
transaction actionable under this chapter.” Ala. Code § 8-19-15
(emphasis added).

Although the ADTPA does “not displace remedies

for fraud, misrepresentation, deceit, or suppression that are
available under the common law, statute, or otherwise . . . the
remedies under the [ADTPA] and those otherwise available are
mutually exclusive.” Ford Motor Co. v. Sperau, 708 So. 2d 111, 122
(Ala. 1997) (emphasis added).
If Holmes were allowed to pursue her ADTPA claim against Behr
in Count V, she would surrender all other rights and remedies under
Alabama

law,

including

Counts

VIII

and

IX

against

fraudulent misrepresentation and suppression.

Behr

for

While certainly

under the federal rules, Fed. R. Civ. Proc. 8(d), a party may plead
alternative or inconsistent claims, the plain text of the ADTPA
specifically and unambiguously makes, as an essential element of
the

claim,

the

statutory

remedy

exclusive

of

other

remedies

available under Alabama law. See Thomas v. Kamtek, Inc., 2015 WL
6503672, at *7 (N.D. Ala. Oct. 28, 2015) (distinguishing between
pleading alternative claims from mutually exclusive causes of
action).

Furthermore, while federal procedural rules displace

conflicting state provisions, federal procedure does not “abridge,

6

enlarge or modify any substantive right.” Lisk v. Lumber One Wood
Preserving, LLC, 792 F.3d 1331, 1335 (11th Cir. 2015) (quoting
Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)).
Allowing Holmes alternatively to plead her ADTPA and other fraud
claims against Behr would enlarge the substantive right and remedy
of the ADTPA, supplanting the prerogative of state law.
R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).

See Erie

Therefore, by

pursuing her other fraud claims against Behr in Counts VIII and IX,
Holmes will be deemed to have procedurally waived her claim under
the ADTPA in Count V.
B.

Fraud by misrepresentation

In Alabama, “[m]isrepresentations of a material fact made
willfully to deceive, or recklessly without knowledge, and acted on
by the opposite party, or if made by mistake and innocently and
acted on by the opposite party, constitute legal fraud.” Ala. Code
§ 6-5-101.

Specifically, “[t]he elements of fraud are: (1) a

misrepresentation

of

a

material

fact,

(2)

made

willfully

to

deceive, recklessly, without knowledge, or mistakenly, (3) that was
reasonably relied on by the plaintiff under the circumstances, and
(4) that caused damage as a proximate consequence.” Brushwitz v.
Ezell, 757 So.2d 423, 429 (Ala. 2000).
In Alabama, “a mere breach of contract is not sufficient to
support a charge of fraud.” Emergency Response Specialists, Inc. v.
CSA Ocean Sciences, Inc., 2015 WL 1865453, at *1 (N.D. Ala. Apr.

7

23, 2015) (quoting McAdory v. Jones, 71 So.2d 526, 528 (Ala.
1954)). “Regardless, it is clear that to assert a fraud claim that
stems from the same core facts as one's breach-of-contract claim,
the fraud claim must be based on representations independent of the
promises contained in the contract and must independently satisfy
the elements of fraud.” Hunt Petroleum Corp. v. State, 901 So.2d 1,
10–11 (Ala. 2004) (Houston, J., concurring); see Stone v. Koch
Farms of Gadsden LLC, 2013 WL 121477, at *2–3 (N.D. Ala. Jan. 8,
2013) and Townson v. Koch Farms, LLC, 2014 WL 1618376, at *2 (N.D.
Ala. Apr. 22, 2014)(relying on Justice Houston's concurrence to
conclude fraud claims must be sufficiently independent from a
breach of contract count to be separately cognizable). “[M]ere
puffery . . . will not support a claim of fraud.” Am. Pioneer Life
Ins. Co. v. Sherrard, 477 So. 2d 287, 291 (Ala. 1985) (finding as
mere puffery representations that an idea was “the greatest thing
[one] had seen”, was a “number one priority”, and that “it would
revolutionize the industry”).
In Count VII, Holmes alleges fraudulent misrepresentation by
Home Depot where an employee working in the paint department
represented to Holmes that Kilz was “a high quality primer suitable
for adhering to both plaster and sheetrock/drywall walls and
ceilings.” (Doc. 41 at 33-34).

At best, these alleged

representations by Home Depot are “nothing more than puffery.”
Shutter Shop, Inc. v. Amersham Corp., 114 F. Supp. 2d 1218, 1227
8

(M.D.

Ala.

2000)

(quoting

Fincher

v.

Robinson

Lincoln-Mercury, 583 So. 2d 256, 259 (Ala. 1991)).

Bros.

Furthermore,

Holmes fails to distinguish how this representation by Home Depot
was independent of or distinguishable from the representations
about the product on the label, namely, that Kilz primer may be
used “on interior surfaces including . . . drywall [and] plaster.”
(Doc. 41 at 36). Therefore, Count VII fails to state a claim of
fraud against Home Depot and must be dismissed.
In Count VIII, Holmes alleges two theories of fraudulent
misrepresentation against Behr. First, Holmes alleges that she was
“misled

by

the

labeling,

WHERE

TO

USE

section

on

the

Kilz

[product].” (Doc. 41 at 36). Given that this representation is the
actual product label itself, Holmes fails to allege a sufficiently
independent representation by Behr to support a cognizable claim of
fraud.

Holmes’

second

theory

of

fraud

against

Behr

alleges

fraudulent misrepresentation during an October 28, 2013 telephone
conversation where a Behr representative stated “that pictures,
residual primer, residual paint, primer/paint samplings would not
be necessary for Holmes to send to Behr in order for Holmes to
receive compensation for the failed Kilz primer.” (Doc. 41 at 37).
While these representations are distinct from Holmes’ contract
claims,

Holmes’

assertion

that

they

induced

her

“to

destroy

evidence” is so unreasonable as to be disregarded. (Doc. 41 at 3839). The Behr representative’s statement that said evidence “would

9

not be necessary” cannot reasonably be construed as an inducement
for Holmes to destroy the evidence.

Rather, one would assume

Holmes would preserve evidence given this is the same October 28,
2013 conversation where Holmes alleges she became aware of Behr’s
alleged violations of the ADTPA.3

Holmes’ bald assertion that she

“justifiably relied” is not enough because she must “show not only
that [s]he relied on [the] alleged misrepresentation . . . but also
that that reliance was reasonable in light of the facts surrounding
the transaction in question.” Baker v. Metro. Life Ins. Co., 907
So. 2d 419, 421 (Ala. 2005).

Therefore, since both theories of

fraud against Behr fail to state a claim for relief, Count VIII
must be dismissed.
C.

Fraudulent suppression

In Alabama, “[s]uppression of a material fact which the party
is under an obligation to communicate constitutes fraud [and] [t]he
obligation to communicate may arise from the confidential relations
of the parties or from the particular circumstances of the case.”
Ala. Code § 6-5-102.

Specifically, “the elements of a cause of

action for fraudulent suppression are: (1) a duty on the part of
the defendant to disclose facts; (2) concealment or nondisclosure
of material facts by the defendant; (3) inducement of the plaintiff

3

Holmes’ election to bring a claim against Behr under the
ADTPA in effect excludes and surrenders all other rights and
remedies against Behr, thereby providing an additional basis for
dismissing Counts VII and IX against Behr. See Ala. Code §
8-19-15.
10

to act; (4) action by the plaintiff to his or her injury” CNH Am.,
LLC v. Ligon Capital, LLC, 160 So. 3d 1195, 1201 (Ala. 2013).
“Whether there is a duty to the other to disclose the fact in
question is always a matter for the determination of the court.”
State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834, 839-40 (Ala.
1998)(quoting Restatement (Second) of Torts § 551 (1977)). “It has
long

been

the

law

in

Alabama

that,

when

both

parties

to

a

transaction are intelligent and fully capable of taking care of
themselves and are dealing at arm's length and when there are no
confidential relations between them, one of them owes no duty to
disclose a material fact to the other without request, and mere
silence concerning such fact is not fraud; there must be active
concealment or misrepresentation.” DeWitt v. Long, 519 So. 2d 1363,
1366 (Ala. Civ. App. 1987).
In Count IX, Holmes alleges that despite Behr’s “legal duty to
disclose . . . Behr fraudulently suppressed and concealed the fact
that moisture can seep under the primer causing it [to fail].”
(Doc. 41 at 40-41). Despite Holmes’ conclusory assertion that Behr
had a duty, she provides no basis for finding a duty to disclose
existed between the parties nor does she allege Behr responded
untruthfully to any direct questions. See Freightliner, L.L.C. v.
Whatley Contract Carriers, L.L.C., 932 So. 2d 883, 892 (Ala. 2005)
(“The parties have no general obligation to disclose, but each has
an affirmative duty to respond ‘truthfully and accurately’ to

11

direct questions from the other.”).

While Holmes cites this

court’s opinion in Houston v. Bayer Healthcare Pharm., Inc. to
argue that manufacturers generally have a duty to disclose and warn
of all risks in their product labeling and instructions, Holmes
overlooks the important distinction that drug and medical device
manufacturers have, namely, a unique duty in light of “FDA approval
requirements” and Alabama drug manufacturer regulations. 16 F.
Supp. 3d 1341, 1350 (N.D. Ala. 2014).

Unlike Bayer, there is no

analogous legal duty for Behr because labeling and instructions as
to a commercial paint and primer product is not uniquely regulated
by the FDA or by Alabama law.

Therefore, in the absence of any

legal duty, Count IX fails to state a claim and must be dismissed.
III. Damages
While Holmes does not respond to defendants’ argument that the
Kilz limited warranty excludes recovery for “financial loss, mental
anguish, and emotional distress” in her breach of warranty and
strict liability counts (Doc. 46 at 25), “the Court will review the
merits

of

incorrect

the
or

[defendants’]

inadequate

to

position
satisfy

and,

the

if

it

is

clearly

[defendants’]

initial

burden, will deny the Rule 12(b)(6) motion despite [Holmes] failure
to respond.” Ballard v. House, 2015 WL 1840333, at *4 (N.D. Ala.
Apr. 22, 2015) (quotes omitted).
First,

the

Kilz

limited

warranty,

referenced

in

Holmes’

complaint (Doc. 41 at 19, 38) and attached to defendants’ motion

12

(Doc. 46-1 at 11),4 is effective against Holmes’ breach of express
warranty claims in Counts III and IV.

In a sale of goods

contract, “Alabama law clearly permits a seller to limit or exclude
by contract any liability for consequential damages . . . [and]
[s]uch agreements are valid and enforceable.” Kennedy Elec. Co. v.
Moore-Handley, Inc., 437 So. 2d 76, 81 (Ala. 1983) (citing Ala.
Code § 7-2-719).

This Kilz limited warranty, however, does not

apply to Holmes’ breach of implied warranty claims in Counts I and
II because the said warranty makes no reference to any implied
warranties nor does it disclaim any such implied warranties. Cf.
Morgan Bldg. & Spas, Inc. v. Gillett, 762 So. 2d 366, 371 (Ala.
Civ. App. 2000).
Next, the economic loss doctrine does not limit Holmes’
damages under her Alabama Extended Manufacturer Liability Doctrine
(“AEMLD”) claim in Count VI because her complaint alleges more than
mere damage to the Kilz primer itself. Vesta Fire Ins. Corp. v.
Milam & Co. Const., 901 So. 2d 84, 106-107 (Ala. 2004) (“[t]he
economic-loss rule prevents tort recovery when a product damages

4

While generally a motion to dismiss looks only at the face
of the complaint, here the court considers the entire Kilz label
attached to defendants’ motion to dismiss (Doc. 46-1 at 11). See
Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (“the court
may consider a document attached to a motion to dismiss without
converting the motion into one for summary judgment if the
attached document is (1) central to the plaintiff's claim and (2)
. . . “undisputed” mean[ing] that the authenticity of the
document is not challenged”).
13

itself, causing economic loss, but does not cause personal injury
or damage to any property other than itself . . . [such] that a
plaintiff's AEMLD claim that a product is defective is limited to
a contractual recovery when the evidence shows that the defect
caused injury to only the product and to no other property.”) While
the full extent of personal or property damages is unclear from the
face of Holmes’ complaint, it is clear that the allegedly defective
Kilz primer damaged the “top-coat of Valspar paint” (Doc. 41 at 5)
requiring repair to “the surfaces and [for] re-prim[ing] and
repaint[ing] the walls and ceilings.” (Doc. 41 at 39).

Therefore,

the economic-loss rule does not limit Holmes’ recovery under the
AEMLD.
CONCLUSION
A separate order effectuating this opinion will be entered.

DONE this 17th day of November, 2015.

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

14