Harkey v. General Electric Company
Filing
150
ORDER granting in part and denying in part 119 Motion to Dismiss. Signed by Judge Warren W. Eginton on 11/30/15. (Gould, K.).
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL LEVY, LAUREN HARRIS,
:
and DAVID MEQUET individually and :
on behalf of themselves and all
:
others similarly situated,
:
3:13cv1799 (WWE) consolidated with
Plaintiffs,
:
15cv857
:
v.
:
:
GENERAL ELECTRIC COMPANY,
:
Defendant.
:
RULING ON MOTION TO DISMISS
In this consolidated action, plaintiffs bring a putative class action on behalf of
consumers who purchased microwave ovens manufactured by General Electric
Company (“GE”) with a dangerous design defect that caused the glass door on the
ovens to shatter and explode. Specifically, plaintiffs Daniel Levy, Lauren Harris and
David Mequet allege: (1) breach of express warranty; (2) violation of the implied
warranty of merchantability; (3) violation of the Magnuson-Moss Warranty act; (4)
violation of various state consumer protection laws; and (5) unjust enrichment.
Defendant GE has filed a motion to dismiss the breach of implied warranty of
merchantability, unjust enrichment and consumer protection claims pursuant to
California law (Levy); the express warranty claim pursuant to Florida law (Harris); and
the unjust enrichment claims pursuant to Texas laws (Mequet). For the following
reasons, the motion to dismiss will be granted in part and denied in part.
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BACKGROUND
For purposes of this ruling, the Court assumes that the allegations of the
complaint are true.
Plaintiff Levy is a citizen of the state of California; plaintiff Harris is a citizen of
Florida; and plaintiff Mequet is a citizen of the state of Texas. Defendant GE is a New
York corporation with its principal place of business in Fairfield, Connecticut.
Certain GE-branded microwave oven models contain defects that render them
unreasonably dangerous and unsuitable for their intended use because the glass on
the oven doors will shatter. GE expressly warrantied through its user manuals,
advertisements, pamphlets, brochures, circulars, samples and models that these
models were fit for the ordinary purpose for which such goods are used.
GE has known, or reasonably should have known, that the models were
defective since at least September 2002, when it first received reports that its models
contained defects that cause the glass on the oven door to shatter. GE sent out service
bulletins to its technicians alerting them to the problem. However, these bulletins were
only available to service professionals. GE did not issue a recall, warn consumers or
take any affirmative steps to correct the problem.
In the winter of 2006, Levy purchased his GE-branded microwave oven. On
April 26, 2015, the glass door to the oven shattered while the oven was not in use.
Levy reported the incident to GE. The service technician told Levy that he would be
responsible for the cost of parts and labor. Levy ordered a replacement glass panel but
was informed that this part was no longer available. GE offered $50 towards a new
microwave.
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On January 9, 2015, the glass door on plaintiff Harris’s GE microwave shattered.
Harris’s four-year old son was hit with flying glass After Harris reported the incident to
GE, GE sent a technician to diagnose the unit at no cost but told plaintiff she was
responsible for the cost of the repair. The technician told Harris that the microwave was
not repairable.
On April 22, 2015, the glass door on plaintiff Mequet’s GE microwave shattered
while it was not in use. Mequet contacted GE, which told him that it would waive the
cost of a diagnostic visit but that he would be responsible for any costs associated with
the actual repair of his unit. After Mequet objected, GE informed him that it would send
a replacement glass panel that he could install himself.
DISCUSSION
The function of a motion to dismiss is “merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might be offered in support
thereof.” Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779
(2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all
well-pleaded allegations as true and draw all reasonable inferences in favor of the
pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the
grounds upon which the claim rests through factual allegations sufficient “to raise a right
to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the
court to draw the reasonable inference that the defendant is liable for the alleged
conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Choice of Law
In diversity cases, a Connecticut federal court will apply Connecticut’s choice of
law rules. Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d Cir. 2001).
Plaintiffs’ breach of warranty and unjust enrichment claims that relate to the alleged
breach of warranty sound in contract. See Szollosy v. Hyatt Corp., 396 F. Supp. 2d
159, 163 n.8 (D. Conn. 2005). Choice of law for a contract claim should be determined
according to the most significant relationship test of the Restatement (Second) Section
188, which provides that unless another state has an overriding policy-based interest in
the application of its law, the law of the state in which the bulk of the contracting
transactions took place should be applied. Reichhold Chemicals, Inc. v. Hartford
Accident & Indemnity Co., 243 Conn. 401, 414 (1997). Section 188(2) lists five
contacts to be considered: "(a) the place of contracting, (b) the place of negotiation of
the contract, (c) the place of performance, (d) the location of the subject matter of the
contract, and (e) the domicile, residence, nationality, place of incorporation and place of
business of the parties." For purposes of this motion, the Court will assume that the law
of the state where each plaintiff resides applies.
Levy’s Claims Pursuant to California Law
1.
Breach of Implied Warranty of Merchantability and Song-Beverly
Consumer Warranty Act
Defendant maintains that plaintiff Levy’s claims of implied warranty of
merchantability fail for lack of any allegation specific to plaintiff’s privity with defendant.
Under California law, a plaintiff bringing an implied warranty of merchantability
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claim must stand in privity of contract with the warrantor. Burr v. Sherwin Williams Co.,
268 P.2d 1041, 1048-49 (Cal. 1954). A buyer and seller stand in privity if they are in
adjoining links in the distribution chain. Osborne v. Subaru of Am. Inc., 198 Cal.App. 3d
646, 656 n.6 (19888). An end consumer who buys from a retailer is not in privity with a
manufacturer. Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008).
Although plaintiff Levy maintains that an exception exists where representations
are made by means of label or advertisement, such exception to the privity requirement
is applicable only to express warranties. Burr, 268 P.2d at 1049. Further, no binding
authority supports plaintiff’s assertion that an express warranty claim excuses the privity
requirement for plaintiff’s implied warranty claim. Wolph v. Acer America Corp., 2009
WL 2969467, *3 (N.D. Cal. Sept. 14, 2009). The Court will dismiss the implied warranty
of merchantability claim.
2.
Song-Beverly Consumer Warranty Act
California’s Song-Beverly Consumer Warranty Act applies only to transactions
where title to the goods is taken within California. In his opposition to the motion to
dismiss, Levy represents that he purchased the microwave while residing in California
from an online retailer with headquarters in California. The Court will dismiss the claim
without prejudice and allow plaintiff Levy to amend his allegations to plead the requisite
elements of the warranty claims.
3.
California Consumers Legal Remedies Act
Defendant maintains that the Consumer Legal Remedies Act claim should be
dismissed for failure to file an affidavit regarding venue as required by the state statute.
Plaintiff Levy submits that this procedural rather than substantive requirement need not
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be followed by a federal court sitting in diversity. Evans v. Linden Research, Inc., 763
F. Supp. 2 735, 737 n.1 (E.D. Penn. 2011). Here, plaintiff has submitted a venue
affidavit that satisfies the statutory requirement. Accordingly, the Court will deny the
motion to dismiss on this basis.
4.
Unjust Enrichment Claim
Defendant asserts that unjust enrichment is not a viable independent cause of
action under California law. However, California courts have been split on whether
unjust enrichment is an independent claim or merely an equitable remedy under
California law. Khasin v. R.C. Bigelow, Inc., 2015 WL 4104868, *2 (N.D. Cal. July 7,
2015). The Ninth Circuit has instructed that, while unjust enrichment is not a stand
alone cause of action, a court may construe an unjust enrichment cause of action as a
quasi-contract claim seeking restitution where a defendant has been unjustly enriched
due to mistake, fraud, coercion or request. Astiana v. Hain Celestial Group, Inc., 783
F.3d 753, 762 (9th Cir. 2015). Here, plaintiff may be able to plead a viable claim for
restitution based on defendant’s alleged failure to inform plaintiff of the known defect to
the microwave. The Court will dismiss the unjust enrichment claim but will allow plaintiff
to amend the complaint to assert a plausible claim for restitution under California law.
Harris’s Claims of Express Warranty Pursuant to Florida Law
Defendant maintains that Harris’s express warranty claim should be dismissed
for lack of privity. However, this Court’s research reveals that Florida law with regard to
the requirement of privity for express warranty claims remains unsettled. Brynes v.
Small, 2015 WL 6908721, at * 7 n.10 (M.D. Fl. Nov. 9, 2015). The Court must construe
all allegations in the light most favorable to plaintiffs. In light of the unsettled state of
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the law, plaintiff has stated a plausible claim for breach of an express warranty.
Accordingly, the Court will deny the motion to dismiss on this claim.
Mequet’s Unjust Enrichment under Texas Law
Defendant argues that the unjust enrichment claim is not a viable cause of action
under Texas law.
Texas courts have recognized that unjust enrichment is not a stand alone cause
of action but courts have allowed plaintiffs to recover under an unjust enrichment theory
when one person has obtained a benefit from another by fraud, duress, or the taking of
an undue advantage. Henson Patriot Ltd. Co. v. Medina, 2014 WL 3756383, *2 (W.D.
Texas-San Antonio). Under Texas law, “unjust enrichment is based on the quasicontract and is unavailable when a valid, express contract governing the subject matter
fo the dispute exists.” Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 454 (5th Cir.
2011). Accordingly, the Court will grant the motion to dismiss on the unjust enrichment
claim but will afford plaintiff the opportunity to replead the complaint to allege a theory
of recovery consistent with Texas law.
CONCLUSION
For the foregoing reasons, the motion to dismiss (doc. # 119) is GRANTED in
part and DENIED in part. The Court DISMISSES with prejudice the implied warranty
claim pursuant to California law; DISMISSES without prejudice the Song-Beverly Act
claim; DISMISSES without prejudice the unjust enrichment claim pursuant to California
law; DISMISSES without prejudice the unjust enrichment claim pursuant to Texas law.
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Plaintiffs are afforded the opportunity to replead their complaint consistent with this
ruling within 15 days of this Ruling’s issuing date.
Dated this 30th day of November, 2015, at Bridgeport, Connecticut.
/s/Warren W. Eginton
Warren W. Eginton
Senior United States District Judge
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